Date: 20091216
Docket: T-300-09
Citation: 2009 FC 1278
Ottawa, Ontario, December 16, 2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
RHEA TAIT
Applicant
and
THE ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The
Applicant, Rhea Tait, claimed disability benefits and received a favourable
decision from a Review Tribunal (the Tribunal) appointed under the Canada
Pension Plan, R.S.C.
1985, c. C-8 (the Act). The Respondent requested a 17 day extension of
time to seek leave to appeal the Tribunal decision. On August 18, 2008, a
Member of the Pension Appeals Board (PAB) granted the extension of time and
leave to appeal (the PAB Decision). This is the decision challenged by the Applicant
on Judicial Review. However, she only takes issue with the granting of the
extension of time.
[2] The
Applicant was self-represented on this application.
THE FACTS
[3] The Applicant is 53 years old and
lives in Welland, Ontario, where she drives a school bus for approximately 2 hours a
day.
[4] The Applicant has had difficulties
with her left knee since 1986. In 2002, she began to have difficulty breathing
and recurrent lung infections. The Applicant has been diagnosed with pulmonary
fibrosis, osteoarthritis and an unstable left knee.
[5] The
Applicant first applied for disability benefits under the Canada Pension Plan
(CPP) on February 22, 2006. Her claim was denied.
[6] The
Applicant sought a reconsideration of the decision to deny benefits, and her
application was refused. She then appealed to the Tribunal. In a decision dated
March 17, 2008, the Tribunal found in the Applicant’s favour. It deemed her
disabled as of November 2004, and ordered payments to begin retroactively as of
March 2005 (the Tribunal Decision).
[7] However,
it appears that under subparagraph 44(1)(b)(i) of the Act, the Applicant did
not actually qualify for disability benefits at that time because she had not
met the Minimum Qualifying Period (MQP) as defined in subsection 44(2) of the
Act. The Applicant had not contributed to the CPP during at least four of the
last six calendar years prior to the date of her deemed disability. I refer to
the Tribunal’s error as the MQP Mistake.
[8] The
following facts about the Respondent’s actions after receiving the Tribunal Decision
are taken from the Affidavit of Sheryl Bell sworn July 10, 2008 (the Bell
Affidavit). Sheryl Bell is a Medical Adjudicator employed by the Respondent’s
Medical Expertise Division (MED). MED is responsible for deciding whether to appeal
decisions made by the Tribunal.
[9] The Tribunal
Decision, in this case, was initially received by the Respondent’s regional
office in Chatham, Ontario on
March 26, 2008. The regional office in Chatham forwarded it
to MED in Ottawa on April 7,
2008. MED failed to notice the MQP Mistake, and a decision was therefore made not
to appeal the Tribunal Decision. Accordingly, on April 24, 2008, MED returned
the Applicant’s file to the regional office in Chatham for
processing.
[10]
On
June 12, 2008, the regional office notified Sheryl Bell by telephone and e-mail
that its computer system was unable to process the Applicant’s payment because she
had not satisfied the MQP requirements under the Act.
[11]
In
the same e-mail, the regional office warned Ms. Bell that “Our appeal period is
almost over.” As discussed below, this fact is not mentioned in the Bell
Affidavit.
[12]
Sheryl
Bell contacted a Senior Manager of CPP Disability Adjudication and Appeals
about this problem on June 20, 2008. On that day, according to the Bell
Affidavit, the Senior Manager contacted the Office of the Commissioner of
Review Tribunals and asked the Tribunal to “amend” its decision. When the Tribunal
refused, the Respondent decided to seek leave to appeal the Tribunal Decision.
[13]
Section
83(1) of the Act provides that the Minister may seek leave to appeal a decision
of the Review Tribunal decision within 90 days of the day the decision is
communicated to the Minister. The Tribunal Decision, in this case, was received
by the Respondent’s regional office in Chatham, Ontario on
March 26, 2008. Accordingly, the appeal period expired 90 days later on
June 24, 2008.
[14]
The
Respondent submitted its application for leave to appeal and its request for
the extension of time on July 11, 2008, seventeen days after the appeal period
expired.
[15]
The
Respondent submitted the following grounds for its appeal:
1. The MQP
Mistake;
2. The Tribunal’s
conclusion that the Applicant was unable to pursue substantially gainful
employment, because she is able to work part-time driving a school bus;
3. The effect of
the Tribunal Decision which meant that, contrary to law, the Applicant could be
both a CPP contributor and recipient at the same time.
THE ISSUES
[16]
In
Canada (Minister of Human
Resources Development) v. Gattellaro,
2005 FC 883, Madam Justice Judith Snider identified the following four criteria
to be considered in deciding whether to grant an extension of time to file an
application for leave to appeal to the PAB:
1. There was a
continuing intention to pursue the appeal;
2. The matter
discloses an arguable case;
3. There is a
reasonable explanation for the delay;
4. There is no
prejudice to the other party in allowing the extension.
[17]
The
PAB Member considered Justice Snider’s decision, and concluded that all four
criteria were met in this case.
[18]
During
the hearing, the Applicant acknowledged that she had not suffered any prejudice.
As well, she agreed that the Tribunal had erred in its treatment of her MQP and
that she is not entitled to payments as of March 2005. This means that that the
Respondent has an arguable case for an appeal to the PAB.
[19]
Accordingly,
the only matters at issue in this Judicial Review are the continuing intention
to appeal, and the reasonableness of the Respondent’s explanation for its
delay.
DISCUSSION
[20]
With
regard to these issues, the PAB said the following:
I have
considered the Affidavit of Sheryl Bell sworn on July 10, 2008, and I accept
that the Minister had a continuing intention to appeal, and that the delay in
filing the appeal was due to an administrative misunderstanding as to when the
90-day appeal period expired.
[21]
The
Bell Affidavit provided the following information on the issues:
Unfortunately, I believed that the
[Respondent] could apply for leave to appeal until July 7, 2008, 90 days after
April 7, 2008, the day the decision was communicated to the MED. I have come to
know that the Review Tribunal’s March 17, 2008 decision was received by the
[Respondent]’s Regional Office in Chatham on March 26, 2008 and that this is
the correct day after which the 90-day period to apply for leave to appeal
begins. [. . .]
It has been the Minister’s intention to
seek leave since learning of the [Office of the Commissioner of Review
Tribunals’] refusal to correct and amend the Review Tribunal’s March 17, 2008
decision.
Was There a Continuing
Intention to Appeal?
[22]
During
the appeal period, the Respondent first decided against an appeal and then
changed its mind once the MQP Mistake was discovered. The Applicant says that
this shows that the Respondent did not have a continuing intention to appeal.
However, if I were to accept the Applicant’s view, parties would be denied the
opportunity to use the entire 90 day period to formulate a final decision about
an appeal. In my view, the requirement for a continuing intention to appeal
means that a final decision to appeal must be made during the appeal period and
continue from that date until the date on which an application is made for an
extension of time.
[23]
The
evidence is clear that the Respondent made a final decision to seek leave to
appeal on June 20, 2008, before the 90 day appeal period expired on June 24,
2008. Although the Respondent waited until late in the appeal period to make its
decision, it was entitled to do so, and there is no doubt that the intention to
appeal was present continuously thereafter.
Was There a Reasonable
Explanation for the Delay?
[24]
Ms.
Bell deposed that she did not know that the 90 day appeal period ran from the
date the Respondent first received the Tribunal Decision at the Chatham regional office.
However, in view of the following facts, I have serious doubts about the
credibility of her explanation.
1. MED is the
department that organizes the committee responsible for deciding whether or not
to seek leave to appeal Tribunal decisions. For this reason, it is unreasonable
to believe that MED would not know how to calculate the appeal period.
2. Sheryl Bell
had worked at MED since 1993 and had fifteen years’ experience at the material
time. In these circumstances I cannot accept that she did not realize that the
appeal period ran from the date the Respondent first received a Tribunal
decision.
3. Sheryl Bell
mentioned in her Affidavit that the Chatham regional office
contacted her on June 12, 2008 to inform her of the MQP Mistake. However, as
noted above, she failed to mention the third line of the e-mail she received
that day, which reads, “Our appeal period is almost over.” She said she thought
the appeal period expired on July 7, 2008. We now know that she held this
belief in spite of a warning. The warning makes her belief appear less
reasonable, and the fact that she failed to disclose the warning gives me
additional concern about her credibility.
[25]
I
have therefore concluded that it was unreasonable for the PAB Member to accept Sheryl Bell’s
explanation for the delay.
[26]
I
now turn to the question of how to resolve this application.
[27]
In
Canada (Attorney
General) v. Blondahl, 2009 FC 118, Madame Justice Johanne Gauthier
considered the four criteria identified by Justice Snider in Gattellaro and
stated as follows:
Turning to another issue, it is now clear, and accepted by the
Attorney General, that ultimately, the four pronged test is a measure of
fulfilling the underlying consideration, which is to ensure that justice is
done between the parties (see Hogervorst at para. 33
and Pentney at para. 34). As such, an extension may
be granted even if one of the factors mentioned in this test is not satisfied.
[28]
If
the Tribunal Decision were to stand, the Applicant would receive payments to
which she is not entitled. As well, I observe that the Respondent was only 17
days late and that three of the four criteria in Gattellaro have been
met.
[29]
Accordingly,
in all of these circumstances, this application for Judicial Review will be
dismissed but without costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that, for the reasons given
above, this application for judicial review is hereby dismissed.
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