Canada (Attorney General) v. Pelland, 2008 FC 1164

• Judge: O'Reilly, J.
• Court: Federal Court (Canada)
• Case Date: October 08, 2008
• Jurisdiction: Canada (Federal)
• Citations: 2008 FC 1164;(2008), 336 F.T.R. 153 (FC)

Can. (A.G.) v. Pelland (2008), 336 F.T.R. 153 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. OC.021

Attorney General of Canada (applicant) v. Mona Pelland (respondent)

(T-94-08; 2008 FC 1164)

Indexed As: Canada (Attorney General) v. Pelland

Federal Court

O'Reilly, J.

October 16, 2008.

Summary:

After initially being turned down for a survivor's pension under the Canada Pension Plan, Pelland was found to be eligible by a Review Tribunal. The Minister of Human Resources and Skills Development sought leave to appeal the Review Tribunal's decision. A member of the Pension Appeal Board (PAB) denied the Minister's request. The Minister applied for judicial review.

The Federal Court allowed the application, holding that the PAB member applied the wrong legal test for deciding an application for leave to appeal. The case was remitted to another member of the PAB to decide the leave application according to the proper test.

Government Programs - Topic 1225

Canada Pension Plan - Entitlement - Appeals and judicial review (incl. application for leave to appeal and extensions) - After initially being turned down for a survivor's pension under the Canada Pension Plan, Pelland was found to be eligible by a Review Tribunal - The Minister of Human Resources and Skills Development sought leave to appeal the Review Tribunal's decision - A member of the Pension Appeal Board (PAB) denied the Minister's request - The Minister applied for judicial review - The Federal Court allowed the application - On a leave application, the PAB had to determine whether there was some arguable ground on which the appeal might succeed - The PAB member applied too high a standard in this case where he noted that the Minister had not "established" an error on the part of the Review Tribunal and he concluded that there was "no reasonable chance of success" - Both statements disclosed standards that exceeded the threshold of an "arguable case" and the PAB member erred in law in applying them.

Cases Noticed:

Kurniewicz v. Minister of Manpower and Immigration (1974), 6 N.R. 225 (F.C.A.), refd to. [para. 9].

Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102 (T.D.), refd to. [para. 9].

Martin v. Canada (Minister of Human Resources Development) (1999), 252 N.R. 141 (F.C.A.), refd to. [para. 9].

Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114 (T.D.), refd to. [para. 9].

Counsel:

Dale Noseworthly, for the applicant;

Mona Pelland, on her own behalf.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

This application was heard on October 8, 2008, at Winnipeg, Manitoba, before O'Reilly, J., of the Federal Court, who delivered the following decision on October 16, 2008.