Kerth v. Canada (Minister of Human Resources Development), (1999) 173 F.T.R. 102 (TD)

• Judge: Reed, J.
• Court: Federal Court (Canada)
• Case Date: July 28, 1999
• Jurisdiction: Canada (Federal)
• Citations: (1999), 173 F.T.R. 102 (TD)

Kerth v. Can. (1999), 173 F.T.R. 102 (TD)

MLB headnote and full text

Temp. Cite: [1999] F.T.R. TBEd. SE.041

Ronald Kerth (applicant) v. Canada (Minister of Human Resources Development) (respondent)

(T-1801-98)

Indexed As: Kerth v. Canada (Minister of Human Resources Development)

Federal Court of Canada

Trial Division

Reed, J.

August 13, 1999.

Summary:

A Pension Review Tribunal denied Kerth a disability pension on the ground that he did not meet the Canada Pension Plan defini­tion of disabled. Kerth sought leave to appeal the Tribunal's decision to the Pension Appeals Board. The Pension Appeals Board refused leave to appeal. Kerth applied for judicial review of the decision of the Pension Appeals Board.

The Federal Court of Canada, Trial Divi­sion, allowed the application.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See first Govern­ment Programs - Topic 1225 ].

Administrative Law - Topic 9133

Boards and tribunals - Administrative appeals - Leave to appeal - [See both Government Programs - Topic 1225 ].

Government Programs - Topic 1225

Canada Pension Plan - Entitlement - Appeals and judicial review - A Pension Review Tribunal denied Kerth a disability pension on the ground that he did not meet the Canada Pension Plan definition of disabled - Kerth sought leave to appeal the Tribunal's decision to the Pension Appeals Board - The Board refused leave to appeal - Kerth sought judicial review of the Board's decision - The Federal Court of Canada, Trial Division, held that the stan­dard of review in this case was closer to the non-deferential end of the spectrum - The court considered, inter alia, that the Canada Pension Plan contained no privative clause and there was not a great difference between the expertise of the Board and the court with respect to deter­mining the principles applicable to leave to appeal applications - See paragraphs 18 to 23.

Government Programs - Topic 1225

Canada Pension Plan - Entitlement - Appeals and judicial review - A Pension Review Tribunal denied Kerth a disability pension on the ground that he did not meet the Canada Pension Plan definition of disabled - Kerth sought leave to appeal the Tribunal's decision to the Pension Appeals Board - The hearing before the Board was de novo and there was more evidence before the Board in support of the applica­tion for leave to appeal than was before the Tribunal - The Board refused leave to appeal - Kerth sought judicial review of the Board's decision - The Federal Court of Canada, Trial Division, allowed the application - The Board assessed the Tri­bunal's decision on its merits, rather than deciding whether leave to appeal should be granted - When the ground of an applica­tion for leave to appeal was primarily the existence of additional evidence, the ques­tion to be asked was whether the new evidence raised a genuine doubt as to whether the Tribunal would have reached its decision if the additional evidence had been before it - See paragraphs 24 to 28.

Practice - Topic 8885

Appeals - Leave to appeal - Evidence - New - [See second Government Pro­grams - Topic 1225 ].

Cases Noticed:

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201; 160 D.L.R.(4th) 193, refd to. [para. 18].

Baker v. Canada (Minister of Citizenship and Immigration) (1999), 243 N.R. 22 (S.C.C.), refd to. [para. 19].

Kurniewicz v. Minister of Employment and Immigration (1974), 6 N.R. 225 (F.C.A.), refd to. [para. 24].

Consumers' Association of Canada et al. v. Hydro Electric Power Commission of Ontario (No. 2) (1974), 2 N.R. 479 (F.C.A.), refd to. [para. 24].

Counsel:

James Ludwar, for the applicant;

Nicole Gendron, for the respondent.

Solicitors of Record:

Duchin, Bayda & Kroczynski, Regina, Saskatchewan, for the applicant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This application was heard on July 28, 1999, at Regina, Saskatchewan, before Reed, J., of the Federal Court of Canada, Trial Division, who delivered the following deci­sion on August 13, 1999.