Best v. Canada (Attorney General), (2012) 419 F.T.R. 116 (FC)

• Judge: Boivin, J.
• Court: Federal Court (Canada)
• Case Date: September 12, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 419 F.T.R. 116 (FC);2012 FC 1150

Best v. Can. (A.G.) (2012), 419 F.T.R. 116 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. OC.008

Cheryll A. Best (applicant) v. Attorney General of Canada (respondent)

(T-1914-11; 2012 FC 1150; 2012 CF 1150)

Indexed As: Best v. Canada (Attorney General)

Federal Court

Boivin, J.

September 28, 2012.

Summary:

The applicant sought to cancel a retirement pension in favour of a disability pension. A medical adjudicator, on a reconsideration, found that the applicant did not have a disability that was severe and prolonged. Pursuant to s. 82(1) of the Canada Pension Plan, the applicant appealed to a Review Tribunal. The Tribunal dismissed the appeal. Pursuant to s. 83(1), the applicant applied for leave to appeal to the Pension Appeals Board (PAB). A designated member of the PAB denied leave. The applicant applied for judicial review.

The Federal Court dismissed the application. The PAB member applied the correct test of "arguable case". On the basis of the evidence, the conclusion that no arguable case was raised was a reasonable result.

Government Programs - Topic 1225

Canada Pension Plan - Entitlement - Appeals and judicial review (incl. application for leave to appeal and extensions) - This was an application for judicial review of a decision of the Pension Appeals Board (PAB), in which a designated member denied the applicant leave to appeal the decision of the Review Tribunal - The Federal Court stated that "[t]he review of a decision to grant or deny leave to appeal to the PAB involves the assessment of two issues: (1) whether the correct test of arguable case was applied by the PAB member and (2) whether an error was committed in determining whether an arguable case arose" - The first issue was reviewable on a standard of correctness, while the proper application of the correct test was reviewable on a standard of reasonableness - See paragraphs 12 to 14.

Government Programs - Topic 1225

Canada Pension Plan - Entitlement - Appeals and judicial review (incl. application for leave to appeal and extensions) - A designated member of the Pension Appeals Board (PAB) denied the applicant leave to appeal the decision of the Review Tribunal - The dispute concerned disability benefits conferred under the Canada Pension Plan - The Federal Court dismissed the judicial review application - The correct test of "arguable case" was applied by the PAB member, and the member's decision was reasonable - The application for leave to appeal did not meet the requirements set out in rule 4 of the PAB Rules: she failed to indicate the grounds upon which she relied to obtain leave to appeal (rule 4(d)), and also failed to include a statement of allegations of fact, statutory provisions and reason in support of her appeal (rule 4(e)) - An application for leave to appeal had to demonstrate an arguable case - In this case, there was no arguable case that could be identified on the face of the application for leave to appeal - See paragraphs 17 to 26.

Cases Noticed:

Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114; 97 A.C.W.S.(3d) 159 (T.D.), refd to. [para. 12].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 13].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 13].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Canada (Attorney General) v. Zakaria, [2011] F.T.R. Uned. 78; 2011 FC 136, refd to. [para. 14].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 15].

Davies v. Canada (Minister of Human Resources Development) (1999), 177 F.T.R. 88; 92 A.C.W.S.(3d) 162 (T.D.), refd to. [para. 17].

Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102 (T.D.), refd to. [para. 21].

Statutes Noticed:

Canada Pension Plan, R.S.C. 1985, c. C-8, sect. 83(1), sect. 83(2) [Annex].

Pension Appeals Board Rules of Procedure (Benefits), C.R.C. 1978, c. 390, rule 4 [Annex].

Counsel:

Cheryll A. Best, on her own behalf;

Vanessa Luna, for the respondent.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard in Halifax, Nova Scotia, on September 12, 2012, before Boivin, J., of the Federal Court, who delivered the following judgment and reasons for judgment, dated September 28, 2012, at Ottawa, Ontario.