Ottawa, Ontario, September 8, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] The central issue in this judicial review is whether the Pension Appeals Board (PAB) could grant leave to appeal a decision of the Review Tribunal (RT) affirming the Minister’s decision denying the Respondent survivor benefits under the Canada Pension Plan (Act). The grounds upon which leave was sought was the failure of the RT to alter the date of disability of the Respondent’s deceased spouse from August 2003 to January 2004. The Crown seeks this judicial review of the PAB’s leave decision on the basis that there was no arguable case upon which leave could be granted because there was no jurisdiction over the issue of the disability date in respect of the Respondent’s wife.
[2] The Respondent was unrepresented before the Court in these proceedings and his submissions were largely directed to the unfair results of his situation and the confusing provisions with respect to disability payments under the Act and survivor benefits under the same.
II. BACKGROUND
[3] The late Mrs. El Borai originally applied for disability pension in February of 2003 but that application was denied because she had returned to work in April that year. She then applied in December of 2003 for disability pension at which time she claimed that she had become disabled as of August 2003. Mrs. El Borai’s application was accepted and benefits were payable from the date of disability which was accepted as being August 2003.
[4] In oral argument before the Court, Mr. El Borai, who had submitted no Respondent’s Record, indicated that the date chosen for disability was largely influenced by the requirements of Manufacturer’s Life with which Mrs. El Borai had a disability policy. The details of this particular aspect of the case are not before the Court.
[5] In any event, there was no challenge to the August 2003 deemed date of disability and payments commenced in the usual course.
[6] Mrs. El Borai died on May 25, 2004 and shortly thereafter, Mr. El Borai applied for death benefits, survivor’s pension, and orphan’s benefits under ss. 57-59 of the Act (these provisions need not be produced here but needless to say are complex if not confusing). Eligibility for these benefits is determined by s. 44 of the Act and is based on the contributor’s (in this case, Mrs. El Borai) contributory period and minimum qualifying years.
[7] Mr. El Borai’s application for these survivor benefits and pension was denied on the basis that the contribution period which Mrs. El Borai had to have in order to be eligible under the Act was 8 years (7.66 years rounded in accordance with established precedent). Regrettably, it was determined by the Minister that Mrs. El Borai had only 7 years of valid contributions. That decision of the Minister of June 23, 2004 was re-affirmed on re-consideration pursuant to s. 81 of the Act on October 26, 2004.
[8] Mr. El Borai commenced two challenges to the decision denying him and his family survivor benefits. Firstly, he appealed the Minister’s decision with respect to his ineligibility for benefits to the RT pursuant to s. 82 of the Act, and secondly, he applied to the Minister to re-open his wife’s file in order to have the Minister re-consider the decision with respect to her deemed date of disability. The application for re-consideration was an effort to bring as “new evidence” the fact that Mrs. El Borai made contributions in 2004 pursuant to s. 84(2) of the Act. If valid, the effect thereof would be that she would have had 8 years of contribution and thus Mr. El Borai and family would be eligible for survivor benefits.
[9] The re-consideration application pursuant to s. 84(2) was denied on the grounds that there were no new facts and that, in any event, that evidence would not have affected the outcome because the amounts paid in 2004 would have been insufficient to meet the minimum requirements for consideration as payments for that year. Notwithstanding the usual warning contained in the Minister’s letter with respect to the right to apply for judicial review, no judicial review proceedings were instituted.
[10] In respect of the appeal to the RT, that appeal was denied on the grounds that the RT, in an appeal under s. 82, had no jurisdiction in respect of amending the deemed date of disability. It was at least implied that an application to re-open Mrs. El Borai’s case under s. 84(2) would have been a more appropriate procedure.
[11] In addition to the RT finding as to jurisdiction, it then went on to consider the issue of whether Mrs. El Borai’s 2004 income of $326.63 and her CPP contribution of $36.31 should be counted as part of the minimum qualifying period, thereby adding a further year to the 7 years already considered as applicable. The RT concluded that the contributions would not have been sufficient to meet the minimum amount required of $1,458.33. The result of that finding is that even if the deemed disability date had been changed to reflect the fact that Mrs. El Borai had earned income and made contributions in 2004, she would only have had 7 years of valid contributions since those of 2004 would not be considered as sufficient to constitute a year’s contribution.
[12] Mr. El Borai then sought leave to appeal the RT’s decision on the following grounds:
The review [sic] Tribunal erred in not allowing the Appellant’s late wife’s Canada Pension Plan disability benefits deemed date of disability be changed to January 2004 instead of August 2003. In not making this change the Appellant is not entitled to the Death Survivor and Orphan’s Benefits effective in June 2004 (month following the death of his spouse Mrs. Laila L. Elborai [sic]). The attached Pension Appeals Board Decision (Appendix A) along with the Federal Court Decision (Appendix B) concerning the granting of Mrs. Skoric’s Survivor Benefits, mirror the case of Mr. El Borai.
[13] The Crown has characterized this leave application as restricted to the issue of the failure to alter Mrs. El Borai’s deemed disability date. However, in the statement of facts upon which the leave is based, Mr. El Borai raised the issue of whether a contribution of $36.13 for the year 2004 might qualify as a valid contribution sufficient to constitute an extra year of contributions. The precise wording of the allegation is as follows:
10. It is noted that for the year 2004 Mrs. El Borai made a contribution of $36.13 to the Canada Pension Plan for the year 2004 (that was issued until January or February of the following year 2005 “Appendix E”). Based on a contribution rate of 4.95% in the year 2004 the $36.31 CPP contribution would have paid for earnings in excess of $730.00, that is well over the monthly pro-rated basic exception for disability of $333. 34 ($4,000 divided by 12 months = $333.34), and would allow the late Mrs. El Borai’s spouse and children to receive monthly benefits as a result of her death.
That submission raises issues somewhat similar to those in Canada (Minister of Human Resources Development) v. Skoric, [2000] 3 F.C. 265 (F.C.A.).
[14] However, in the Order sought, Mr. El Borai requested as follows:
1. It is respectfully requested that the late Mrs. El Borai’s deemed date of disability be changed to January 2004 instead of August 2003, and that the pro-rated contribution for the year 2004 be used, as outlined in point 10 above.
2. This would change the date the contributory period ended to January 2004 instead of August 2003. Thus increasing the total contributory period to 30 years, less the Child Rearing Drop-out Period (CRDO) 6 years leaving a contributory period of 24 years. With the 2004 contribution the 8 year contributory period for Death, Survivor and Orphans benefits would be met.
3. The non-entitlement on the disability benefits for the period December 2003 to April 2004, could be withheld from the arrears payment on the survivor benefits.
[15] The first issue is to determine what was truly at issue in the leave application. While there is a suggestion that the issues of contributory amount and contributory period were raised, as in the Skoric decision, on a fair reading of the leave application, that issue only became relevant if the deemed disability date was changed. The Skoric decision held that contributions made outside the contribution period could be recognized in certain circumstances. I agree with the Applicant that the Skoric decision is not relevant to the grounds of appeal as raised by Mr. El Borai. Leave in this present case was granted without reasons - as is the usual case where leave is granted. The true issue in the leave application, therefore, was the ability to change the disability date.
III. ANALYSIS
[16] The standard of review is not determinative in this case. This Court in Canada (A.G.) v. Dale, 2006 FC 1364, held that the issue is one of jurisdiction which does not attract deference and it further held in that case that even if the standard of review was reasonableness, if the PAB lacked jurisdiction over the issue, it would be unreasonable to find, as one must in order to grant leave (see Callihoo v. Canada (A.G.), [2000] F.C.J. No. 612 (F.C.T.D.) (QL)), that there was an arguable case.
[17] The parties had accepted that the RT proceeding was a s. 82 appeal over the Minister’s re‑consideration under s. 81 upholding the denial of survivor benefits.
[18] The Minister’s decision in respect of the disability rendered earlier was made under s. 60 of the Act. That decision was the subject of an unsuccessful s. 84(2) application for re-consideration. No judicial review of that decision was taken; nor any other proceeding commenced.
[19] The current efforts to have the RT and PAB alter the Minister’s disability decision is, in reality, a collateral attack on the Minister’s earlier re-consideration decision. Collateral attacks should not generally be permitted (see R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 and Burstyn v. Canada (Customs and Revenue Agency), 2006 FC 744). This is particularly the case where the Act sets out avenues of relief which the Respondent has used. Even the right of a re‑consideration application potentially remains open.
[20] The RT was correct in finding that it had no jurisdiction to adjust the disability date since the Minister’s decision in this regard was not before it under s. 82.
[21] The RT having no jurisdiction over the issue, the PAB likewise had no jurisdiction under s. 83 to grant leave to appeal. The PAB’s jurisdiction is limited to those matters over which the RT had jurisdiction to decide.
IV. CONCLUSION
[22] For these reasons, the judicial review will be allowed and the decision of the Pension Appeals Board quashed. No costs will be allowed in the circumstances of this case.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is allowed and the decision of the Pension Appeals Board quashed. No costs will be allowed in the circumstances of this case.
ANNEX A
Canada Pension Plan, R.S. 1985, c. C-8
84. (2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be.
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84. (2) Indépendamment du paragraphe (1), le ministre, un tribunal de révision ou la Commission d’appel des pensions peut, en se fondant sur des faits nouveaux, annuler ou modifier une décision qu’il a lui-même rendue ou qu’elle a elle-même rendue conformément à la présente loi. |
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1672-07
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
and
YOUSRI EL BORAI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 3, 2008
APPEARANCES:
Mr. Allan Matte
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Mr. Yousri El Borai
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SOLICITORS OF RECORD:
MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
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SELF-REPRESENTED |