PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] The Attorney General of Canada, (the applicant or the AG) in this judicial review application seeks to set aside the September 28, 2005 decision of Justice Salhany who, as a designated member of the Pension Appeals Board( PAB), granted John Farrell, a self-represented litigant, leave to appeal the Review Tribunal's decision dated February 16, 2005 by which it, pursuant to subsection 84(2) of the Canada Pension Plan Act (CPP Act), refused to re-open its decision of October 2, 1997, which had dismissed Mr. Farrell's appeal from a departmental decision denying his application for a disability pension.
[2] Counsel for the Attorney General raised two grounds for the setting aside of Justice Slahany's (the designated member) decision:
i. He was functus officio at the time he granted leave on September 28, 2005 because in the same matter, he had previously refused leave and
ii. In any event, the leave decision is wrong in law and in fact.
[3] I rejected the functus officio argument from the Bench because I was not satisfied from the record before me the AG had demonstrated the designated member had made a first decision refusing leave.
[4] The only evidence in the record evidencing a first decision refusing leave is a letter dated September 9, 2005 from the Registrar of the PAB addressed to the Acting Director, Medical Expertise Division of the Department of Social Development (SDC) which reads in its entirety:
"The Honourable R.E. Salhany, a member designated under section 83 (2).1 of the Canada Pension Plan, has refused leave to appeal in the above-mentioned matter."
The above-mentioned matter was identified as Mr. Farrell's appeal CP23876 in respect of the Canada Pension Plan, the same appeal number referred to in the designated member's written reasons granting leave on September 28, 2005.
[5] There is no indication in the Registar's letter Mr. Farrell was copied with it nor is there anything in the record showing he was advised leave had been refused.
[6] Apart from this document, the record did not disclose any decision signed by the designated member refusing leave. That record did not contain any written reasons from him why he refused leave, a requirement of subsection 83(3) of the CPP Act which reads:
"Where leave to appeal is refused, written reasons must be given by the person who refused the leave".
[7] Moreover, the designated member, in his written reasons of September 28, 2005 granting leave makes no reference to a previous negative decision refusing leave and why he changed his mind. Mr. Farrell told me he had not received any negative PAB decision refusing leave nor had he received any written reasons to that effect.
[8] The record indicates that on October 4, 2005, the same Registrar of the PAB wrote to the same Acting Director of the Medical Expertise Division advising that leave was granted to Mr. Farrell on September 28, 2005. The Attorney General did not tender any affidavit from the Registrar as to the circumstances of the Registrar's contradictory letters of September 9, 2005 and October 4, 2005.
[9] Before dealing with counsel for the Attorney General's alternative argument, in order to establish context for that argument, I set out some relevant facts related to Mr. Farrell's efforts to obtain a disability benefit under the CPP Act:
1. On October 2, 1997, a Review Tribunal dismissed an appeal by Mr. Farrell from the refusal of his claim for a disability benefit on account of an on-the-job injury in 1994 to his hand. The Review Tribunal was of the view, while Mr. Farrell's disability was prolonged, it was not severe such that he could be classified as disabled.
2. Mr. Farrell did not seek leave to appeal to the PAB the Review Tribunal's October 2, 1997 decision.
3. Mr. Farrell worked in 1998 and for three months in 1999.
4. In October 1999, Mr. Farrell made another claim for disability payments citing his right thumb, hand, arm and shoulder pain as his disabling conditions. It was refused by departmental officials. He appealed to a Review Tribunal.
5. On May 19, 2000, the Review Tribunal considered whether there were new facts with respect to its October 2, 1997 decision and concluded that there were none. In any event, it found the evidence before it did not support a finding his disability was severe and prolonged as of December 1997 (see paragraph 10 of the affidavit of Trevor Bark, Applicant's Record, Volume 1).
6. Mr. Farrell applied to the PAB for leave to appeal the May 19, 2000 decision of the Review Tribunal. On December 15, 2000, a designated member of the PAB denied leave.
7. In April, 2001, Mr. Farrell applied to re-open the Review Tribunal decision under subsection 84(2) of the CPP Act without specifying which one of the two Review Tribunals decision was involved (the one in October 1997 or the one in May 2000). The Review Tribunal, in preparing the documents for its hearing, indicated the application to re-open was with respect to the October 1997 decision.
8. On September 25, 2001, the Review Tribunal determined there were no new facts and dismissed Mr. Farrell's application. (see affidavit of Trevor Bark, paragraph 13, supra).
9. Mr. Farrell applied for leave to appeal the September 25, 2001 decision to the PAB. On July 15, 2002, a member designate of the PAB denied leave (affidavit of Trevor Bark, paragraph 14, supra).
10. Mr. Farrell applied for Judicial Review of the July 15, 2002 leave denial. He was successful. Mr. Justice MacKay of this Court allowed his appeal.
11. Justice MacKay's Order in respect to the judicial review application is dated August 18, 2004. It was issued by him after he had heard the parties in Vancouver on November 4, 2003 when the proceedings were adjourned sine die to permit "consultation between counsel concerning alternative processes for consideration of the applicant's claim to pension benefits." His August 18, 2004 order followed his extensive consultation with the parties (Mr. Farrell was represented by legal counsel at that time) in relation to a draft of the order he had circulated. (see Applicant's record, volume 1, page 353).
12. Following representations mainly from counsel with the Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security dated September 17, 2004 and November 16, 2004 (see Applicant's record, Volume 1, Page 347 and 310), Mr. Justice MacKay issued a direction on September 30, 2004 and an amended direction on December 6, 2004 (see Applicant's record, volume 1, pages 330 and 307).
13. In his December 6, 2004, amended direction, Justice MacKay referred Mr. Farrell's appeal back to the Review Tribunal for reconsideration and stipulated that in the course of reconsideration, the decision-maker shall receive and consider any evidence adduced on behalf of the applicant in support of his claim. He stated the matter of Mr. Farrell's appeal shall be considered on its merits, not limited to new evidence in the technical sense of evidence discovered only after the impuned decision.
[10] It is clear from the record the Review Tribunal discharged the mandate which befell upon it as a result of Justice MacKay's order and directions on the basis that what was before it was an application under subsection 84(2) of the CPP Act to re-open the Review Tribunal's decision of October 2, 1997 (see Applicant's record, Page 135). In its decision of February 16, 2005, the Review Tribunal decided not to re-open the decision of October 2, 1997. In respect of the February 16, 2005 proceedings, Mr. Farrell represented himself and gave evidence. There were no witnesses presented on behalf of the Minister of Social Development Canada.
[11] In its 2005 decision, the Review Tribunal found as a fact Mr. Farrell suffered from severe depression in or before December 1997 a fact that could reasonably be expected to have affected the outcome of the previous Review Tribunal hearing and a fact that was not discoverable before the original hearing in the exercise of due-diligence. (see Applicant's record, page 151).
[12] The Review Tribunal then considered on the basis of the new facts, whether the original October 1997 decision should be rescinded or amended, and if so, in what manner. The Review Tribunal decided it was unable to rescind or amend the original decision because it could not be said this disability was sufficiently severe to prevent the applicant from regularly pursuing any substantially gainful occupation (ibid, page 153). It stated there was little, if any, new evidence which would indicate Mr. Farrell was physically disabled as of December 1997 and that he must, accordingly, establish that the depression which he suffered from in 1997, alone or combined with his physical disability, was such that he was severely disabled as required by the CPP Act (ibid).
[13] On this point, it found the reports of Doctor Fleming, a psychiatrist, to be persuasive. It acknowledged Doctor Fleming in his report of February 25, 2004 indicated Mr. Farrell did meet the severity test when he stated: "furthermore he has been unable to regularly perform any substantial gainful occupation since well before December, 1997." However, the Review Tribunal panel cautioned "it was ultimately a determination which the panel must make." (ibid).
[14] The Review Tribunal indicated it "might have been prepared to accept Doctor Fleming's reports as sufficient evidence of incapacity were it not for [his] record of earnings of 1998 and 1999." It concluded "those earnings, particularly the earnings of 1998, were well in excess of his usual annual earnings throughout his entire working career. While Workers' Compensation Board might have been supplementing a portion of those wages paid, it is noted that the reports indicate he did work a twelve-hour day in a seven day work week. Dr. Fleming's reports were simply not sufficient to rebut the presumption of capacity which is raised by the extensive earnings of the Applicant in 1998 and 1999." (ibid).
[15] The Review Tribunal considered other evidence and acknowledged there was some evidence the applicant's earnings were artificially increased by bonuses and RRSPs and his condition might have been worsened by his work. It also stated there was some indication the applicant had a very accommodating employer and those factors might well lead to a conclusion the applicant's work in 1998 and 1999 was a failed work attempt. (ibid, page 157).
[16] The Review Tribunal concluded at page 157 of the Applicant's record that if the matter proceeded any further it would be of benefit to Mr. Farrell to establish a number of matters.
[17] It is apparent from his written reasons granting leave to Mr. Farrell to appeal the Review Tribunal's February 2005 decision, the designated member's focus was the effect of Justice MacKay's order of August 18, 2004 and subsequent directions.
[18] At page 23 of the Applicant's record, on page 2 of his decision, after stating Mr. Farrell was successful on his judicial review application to the Federal Court, the designated member wrote:
...
"The Federal Court provided three different orders that directed that the matter be heard on the merits [emphasis mine]. However, counsel for the Minister and counsel for the Office of the Commissioner of Review Tribunals agreed that the matter should be sent back for reconsideration under subsection 84(2) notwithstanding the orders of the Federal Court since they felt that that subsection 84(2) precluded the Review Tribunal from considering the case on its merits unless it found new facts."
...
"After reading the decision of the Federal Court, I have come to the conclusion that the order rendered by the Court was meant to give the applicant the right to have his entire case considered on its merits, and not merely limited to "new facts"(the judge used the term "new evidence") discovered after the Review Tribunal's decision. Although counsel for the Minister and counsel for the Office of the Commissioner of Review Tribunals conducted the proceedings as a subsection 84(2) application, it is clear from the terms of the final order that the new hearing was not to be restricted by the usual rules governing such proceedings. Accordingly, the issue of res judicata would not apply and the applicant would be entitled to apply for leave to appeal to the Board. The conclusion would seem to be consistent with the reasons of the Federal Court of Appeal in Kent v. Canada(Attorney General) 2004 FCA 420 and the Minister of Human Resources Development v. Landry 2005 FCA 167.
[19] Although leave is granted, it is of course limited to the window from October 2, 1997 when the Review Tribunal rendered its decision of the first application and December 31, 2005, the date of the applicant's MQP."[Emphasis mine]
[20] Counsel for the Attorney General argued the designated member erred in a number of ways:
1. His description of the procedural history of Mr. Farrell's attempts to obtain CPP disability payments is incorrect;
2. The contributory nature of the CPP requires an applicant be determined to have become disabled within his contributory period (MQP) which is December 31, 1997. It is not December 31 2005 as stated by the designated member. While he worked in 1998 and a little bit in 1999, Mr. Farrell's contributions to the CPP in that period were not sufficient to establish a new MQP;
3. Mr. Farrell faces another problem - the Review Tribunal's decision of May 19, 2000 which determined that his disability was not severe and prolonged in respect of his second application, leave to appeal denied by a designated member of the PAB. Under subsection 84(1) of the CPP, the May 19, 2000 decision of the Review Tribunal held in March 2000 is final and binding as to December 31, 1997, the respondent's MQP, and without further contribution to the Plan, the respondent cannot be found to be disabled on any subsequent application. In her memorandum of argument at Applicant's record, page 518, counsel for the Attorney General argues "both the September 2001 and February 2005 Review Tribunal's erred in considering the respondent's application to re-open its 1997 decision since both are bound by their May 2000 decision in that the respondent was not disabled at his MQP";
4. In any event, Mr. Farrell has not established, on the merits of the Review Tribunal's February 2005 decision, it made any error.
[21] During her argument to the Court, counsel for the Attorney General was very forthright and very helpful in response to the several questions put to her for which the Court is grateful.
[22] I set out some of these elements:
1. On the funtus officio issue, she admitted the Registrar's letter of September 9, 2005 was the only document the SDC had to go on to determine whether leave had been refused by the designated member because the PAB does not send to the Department a copy of the designated member's obligatory leave for denial reasons;
2. She acknowledged the record before the designated member was incomplete and in breach of Rule 8 of the Rules of Procedure of the PAB (the Rules). For example, the important Review Tribunal's decision of 2000 was not there, nor was a designated member's decision to refuse leave from that decision;
3. Both Mr. Farrell and counsel for the AG told me Mr. Farrell was not present during the Review Tribunal's hearing in 2000 because of his father's death.
4. She also acknowledged other material which was before the Review Tribunal of February 2005 was missing from the designated member's record, a complaint which Mr. Farrell had also made in his written representations to the Court in this proceeding;
5. She confirmed no appeal had been taken from Justice MacKay's order of August 18, 2004;
6. She confirmed the designated member's decision in this case had been reached ex parte as provided for under section 7 of the Rules unless the Chairman or Vice-Chairman otherwise directs.
[23] At the end of the day, counsel for the Attorney General acknowledged to the Court that neither the SDC nor Mr. Farrell had been well-served by the record which had been sent to the designated member.
[24] She recommended the designated member's decision granting leave on September 28, 2005 be determined by another designated member on a complete record after providing the opportunity for the Attorney General and Mr. Farrell to make appropriate submissions why leave should or should not be granted. Mr. Farrell appeared to agree with this suggestion.
[25] I agree with counsel for the Attorney General's suggestion but return it to the designated judge for re-assessment and not to a different designated member.
[26] In my view, however, the sole reason the designated member's decision should be quashed is because he did not have before him the complete record which may well explain why he came to some of the conclusions he did. In my view, fairness to both the Attorney General and to Mr. Farrell calls for another review on the leave from the Review Tribunal's 2005 decision.
[27] As I see it under section 7 of the PAB's Rules of Procedure, it is either the Chairman or Vice-Chairman of the PAB that decides whether a leave application should be disposed of otherwise than ex parte. In the circumstances of this case, I would strongly urge either of them to order the reconsideration of leave on the basis that it not be ex parte. The Attorney General and Mr. Farrell must have an opportunity to make submissions to the designated member why or why not leave be granted.
[28] I strongly recommend the parties co-operate with one another to determine if some expedited way can be found to bring this long-standing issue to a close.
ORDER
THIS COURT ORDERS that
1. For the reason sated, this judicial review application is allowed and the matter is remitted to the designated member for reassessment.
2. No costs are awarded
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1997-05
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
v.
JOHN FARRELL
PLACE OF HEARING: TORONTO, ONTARIO
APPEARANCES:
| FLORENCE CLANCY |
|
| JOHN FARRELL |
SOLICITORS OF RECORD:
| John H.Sims, Q.C. Deputy Attorney General of Canada Ottawa,ON |
|
|
John Farrell 34 Rachlin Drive P.O. Box 15 Acton, ON L7J 3B2 |
|