Ottawa, Ontario, April 28, 2009
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought by the Attorney General of Canada in respect of a decision made on February 8, 2008 by a member of the Pension Appeal Board under the provisions of the Canada Pension Plan, R.S.C. 1985, c. C-8 refusing leave to appeal from a decision of a Review Tribunal constituted under the provisions of the Plan. For the reasons that follow I will allow the application and return the matter for redetermination by a different member all without costs.
[2] The underlying facts are simple and not in dispute. The Respondent Ms. Kermenides applied for benefits under the Plan in June 2006 on the basis of disabilities, both physical and psychological resulting from lower back disorders. She had previously worked as a massage therapist and was unable to continue. Initially her claim was denied. She appealed to the Review Tribunal constituted for that purpose under the Plan. The Review Tribunal held a hearing, received evidence from three health care providers and from Ms. Kermenides common-law spouse. She herself was not in a condition fit to give evidence. The Tribunal ruled in favour of Ms. Kerminides. The Minister, under the provisions of the Plan, sought leave to appeal that decision to the Pension Appeal Board. A member of that Board denied leave to appeal stating in an endorsement made February 8, 2008:
The Review Tribunal evaluated the medical and other evidence presented at the hearing and its conclusions cannot be faulted.
The totality of the Respondent’s medical problems made it clear she is disabled.
No other evidence being suggested or proposed there is no realistic change of success on appeal.
Leave is refused.
[3] This is the decision that is the subject of this judicial review application.
[4] The scheme of the Plan provides that a person who is disabled may apply initially to the Minister of Social Development, for a pension if they believe that they meet certain criteria as being “disabled” as defined in section 42(2) of the Plan:
|
When person deemed disabled (2) For the purposes of this Act, (a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and (b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
|
Personne déclarée invalide (2) Pour l’application de la présente loi : a) une personne n’est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d’une invalidité physique ou mentale grave et prolongée, et pour l’application du présent alinéa : (i) une invalidité n’est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, (ii) une invalidité n’est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; b) une personne est réputée être devenue ou avoir cessé d’être invalide à la date qui est déterminée, de la manière prescrite, être celle où elle est devenue ou a cessé d’être, selon le cas, invalide, mais en aucun cas une personne n’est réputée être devenue invalide à une date antérieure de plus de quinze mois à la date de la présentation d’une demande à l’égard de laquelle la détermination a été établie.
|
[5] If such person is dissatisfied with the Minister’s decision they may seek a review by a Review Tribunal established under the Plan. Following a decision by the Review Tribunal either party, the Minister or the person claiming benefits, may seek leave to appeal to the Pension Appeals Board (PAB)from a member of that Board. That is the process engaged here. Such an application is provided for in section 83(1) of the Plan:
[6] Sections 83(2) and (2.1) provide that the Chairman, Vice-Chairman or a designated member of that Board may “either grant or refuse that leave”:
[7] If leave is refused, section 83(3) provides that written reasons must be given by the decision maker:
|
Where leave refused (3) Where leave to appeal is refused, written reasons must be given by the person who refused the leave. |
Permission refusée (3) La personne qui refuse l’autorisation d’interjeter appel en donne par écrit les motifs. |
[8] If leave is granted there is no requirement for reasons and the appeal proceeds. Section 83(4) says:
|
Where leave granted (4) Where leave to appeal is granted, the application for leave to appeal thereupon becomes the notice of appeal, and shall be deemed to have been filed at the time the application for leave to appeal was filed. |
Permission accordée (4) Dans les cas où l’autorisation d’interjeter appel est accordée, la demande d’autorisation d’interjeter appel est assimilée à un avis d’appel et celui-ci est réputé avoir été déposé au moment où la demande d’autorisation a été déposée. |
[9] The Plan is silent as to criteria for the granting or refusing leave except that, where leave is refused, written reasons are to be provided. It is reasonable to conclude that those written reasons must provide the parties with adequate information as to the basis upon which leave was refused.
[10] Notwithstanding that the Plan itself establishes no criteria for granting, or in this case, refusing leave, the jurisprudence establishes that the basis for consideration must be whether there is some arguable ground upon which the appeal “might” succeed; the member should not decide whether the application “could” succeed. The law was recently reviewed by O’Reilly J. of this Court in Canada (Attorney General) v. Pelland, October 16, 2008, 2008 FC 1164 where he summarized at paragraphs 8 and 9:
8 On a leave application, the PAB must determine whether there is some arguable ground on which the appeal might succeed. It should not decide whether the applicant could actually succeed.
9 These propositions are set out in a series of cases: Kurniewicz v. Canada (Minister of Manpower and Immigration), (1974) 6 N.R. 225 (F.C.A.); Kerth v. Canada (Minister of Human Resources Development [1999] F.C.J. No. 1252; Martin v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1972; Callihoo v. Canada (Attorney General), [2000] F.C.J. No. 612.
[11] The words set out in the reasons given for refusal to grant leave should not be reduced to a mantra. The member refusing leave should not be required to follow a strict formula or be tied strictly to words such as “some arguable ground” and not use words such as “no reasonable chance on appeal”. The reasons provided should make it clear to the reader that the member, in arriving at the decision whether to refuse leave, was not deciding the merits of the matter itself but was determining whether a party could make some reasonable argument challenging the merits of the decision of the Review Tribunal.
[12] In the present case, in reading the written reasons of the member, I am satisfied that he did not turn his mind to the criteria as to whether some reasonable argument could be made. He appears to have simply made up his mind as to the ultimate merits of the matter. This was wrong.
[13] The application will be allowed and the matter will be returned for redetermination by a different member. The Applicant did not ask for costs and none will be awarded.
JUDGMENT
FOR THE REASON PROVIDED HEREIN:
- The application is allowed;
- The matter as to whether leave to appeal ought to be granted is returned to the Pension Appeal Board for redetermination by a different member;
- There are no costs awarded.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-427-08
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. GIANNOULA KERMENIDES
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: April 28, 2009
REASONS FOR JUDGMENT
APPEARANCES:
|
Mr. James Gray |
FOR THE APPLICANT ATTORNEY GENERAL OF CANADA
|
|
Mr. Etienne Saint-Aubin |
GIANNOULA KERMENIDES |
SOLICITORS OF RECORD:
|
Department of Justice HRSDC Legal Services 6th Floor, Tower “A” 333 North River Road Ottawa, ON K1A 0L1 Fax: (613) 952-5327
|
ATTORNEY GENERAL OF CANADA
|
|
Stormont, Dundas & Glengarry Legal Clinic 1 McConnell Avenue Cornwall, ON K6H 4K8 Fax: (613) 932-0054 |
GIANNOULA KERMENIDES |