Date: 20040616
Docket: A-550-03
Citation: 2004 FCA 235
CORAM: NADON J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
RICHARD MILTON
Respondent
Heard at Ottawa, Ontario, on June 16, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on June 16, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20040616
Docket: A-550-03
Citation: 2004 FCA 235
CORAM: NADON J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
RICHARD MILTON
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on June 16, 2004)
[1] This is an application for judicial review of a decision by the Pension Appeals Board, dated October 7, 2003, in which the Board held that the Minister of Human Resources Development had not discharged her onus of proving that Richard Milton was no longer eligible to receive long term disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8.
[2] The Minister says that the decision under review should be set aside, on the ground that the Board breached the duty of fairness when it refused to allow counsel for the Minister to cross-examine Mr. Milton at the hearing.
[3] Counsel for the Minister had not called Mr. Milton as a witness for the purpose of cross-examining him before advising the Board that the Minister's evidence was concluded. Counsel for Mr. Milton decided to call no witnesses. At that point, counsel for the Minister submitted to the Board that he still had the right to cross-examine Mr. Milton.
[4] After receiving written representations from the parties, the Board ruled that the Minister had no right to cross-examine Mr. Milton because he had not been called as a witness. However, the Board indicated that it might have permitted counsel to call Mr. Milton as a witness if he had asked leave to reopen his case, but he had not.
[5] Despite the able submissions made to us by counsel on behalf of the Minister, we are not persuaded that, in refusing to permit cross-examination in the circumstances of this case, the Board breached the duty of fairness. Because counsel had had an opportunity to call Mr. Milton as a witness, and to cross-examine him, in the course of presenting the evidence on behalf of the Minister, it cannot be said that the Board's refusal to permit cross-examination, after the evidence of both parties was in, deprived the Minister of a reasonable opportunity of effectively participating at the hearing before the Board.
[6] The Board is master of its own procedure. The Board may have been unduly formalistic when it concluded that, in asking to cross-examine Mr. Milton, counsel had not thereby implicitly requested leave to reopen its case and to call him. Nonetheless, it was within the Board's discretion to determine whether or not to grant the procedural indulgence requested by the Minister. In exercising its discretion, the Board may well have concluded that, given the important part played by the medical reports in this case, and their content, any evidence that Mr. Milton might have given was likely to be of relatively little significance to the Board's determination.
[7] The Minister also argued that the Board should have drawn an adverse inference from Mr. Milton's failure to testify. In our view, whether such an inference is to be drawn depends on all the circumstances of the particular case, and we are not persuaded that, on the facts of this case, the Board committed a reviewable error in not drawing it.
[8] For these reasons, the application for judicial review will be dismissed with costs fixed in the lump sum amount of $2,500, inclusive of disbursements.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-550-03
STYLE OF CAUSE: Minister of Human Resources Development v. Richard Milton
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 16, 2004
REASONS FOR JUDGMENT OF THE COURT: Nadon, Evans and Malone JJ.A.
DELIVERED FOR THE BENCH BY: Evans J.A.
APPEARANCES:
Mr. Stephen Latté
Ms. Shawna Noseworthy FOR THE APPLICANT
Mr. William D. Watson FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPLICANT
William D. Watson
Bancroft, Ontario FOR THE RESPONDENT