PENSIONS |
Canada (Minister of Human Resources Development) v. Fleming
A-124-04
2004 FCA 288, Décary and Evans JJ.A.
9/9/04
16 pp.
Per Décary J.A. (Letourneau J.A. concurring): Application for benefits under Canada Pension Plan--First application dismissed by Minister under Plan, s. 81 March 17, 1997--Request for reconsideration denied February 4, 1998, appeal to Review Tribunal constituted under Plan, s. 82 dismissed May 10, 1999--Latter decision res judicata re: first application for benefits except for possibility of rescission, amendment on new facts under Plan, s. 84(2)--Second application to Minister dismissed April 20, 2001, reconside-ration denied September 25, 2001--Minister informing respondent March 17, 1997 decision no longer reviewable because res judicata, proper avenue to ask Tribunal, under Plan, s. 84(2), to revise on new facts May 10, 1999 decision-- Review Tribunal constituted to hear appeal from Minister's September 25 decision, not s. 84(2) application to reopen May 10, 1999 decision--Tribunal, in dismissing appeal, used words indicating dealing with s. 84(2) application, found no new facts--Respondent appealing decision to Pension Appeals Board--Minister moving to dismiss appeal on basis Board lacking jurisdiction to hear appeal because (1) if hearing before Tribunal with respect to second application, res judicata applied as result of Minister's decision on first application, or (2) if hearing with respect to s. 84(2) application, Board had no jurisdiction to entertain appeal (as not constituted to hear such appeal)--Board dismissed motion --Tribunal error, if any, reviewable not by Board but by Federal Court through judicial review-- Application allowed --Per Evans J.A. (dissenting): Board right not to grant Minister's motion re: jurisdiction--Clear that whether "new facts" justifying change to 1999 decision always presented to Tribunal by Minister as primary issue in case--Minister cannot now deny Tribunal competent to deal with "new facts" issue, as this was issue put before Tribunal by parties--Given confusion surrounding case, concession from Minister's counsel Tribunal's reasons ambiguous on whether no "new facts" or "new facts" insufficient, Evans J.A. not prepared to conclude Board erred when dismissed motion to strike appeal --Board's interpretation of Tribunal's reasons reasonably open to it--Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 81 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45; S.C. 1991, c. 44, s. 20; 1995, c. 33, s. 34; 2000, c. 12, s. 59), 82 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45; S.C. 1991, c. 44, s. 21; 1995, c. 33, s. 35; 1997, c. 40, s. 85; 2000, c. 12, ss. 60, 64), 84(2) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45).