Korese v. Canada (Minister of Human Resources Development), (2000) 199 F.T.R. 28 (TD)

• Judge: Lemieux, J.
• Court: Federal Court (Canada)
• Case Date: December 05, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 199 F.T.R. 28 (TD)

Korese v. Can. (2000), 199 F.T.R. 28 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. JA.041

Constantinos Korese (applicant) v. The Minister of Human Resources Development (respondent)

(T-1686-99)

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

Federal Court of Canada

Trial Division

Lemieux, J.

December 18, 2000.

Summary:

The Minister of Human Resources Development held that Korese was not entitled to a disability pension under the Canada Pension Plan. Korese appealed. A Review Tribunal dismissed the appeal. Korese sought leave to appeal the Review Tribunal's decision to the Pension Appeals Board. A member designated under the Plan denied leave to appeal. Korese applied for judicial review of the decision denying him leave to appeal.

The Federal Court of Canada, Trial Division, allowed the application, set aside the decision and referred the matter back for reconsideration by a different member.

Administrative Law - Topic 9133

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

Government Programs - Topic 1225

Canada Pension Plan - Entitlement - Appeals and judicial review - A Review Tribunal upheld a decision that Korese was not entitled to a disability pension under the Canada Pension Plan - A member designated under the Plan denied Korese's application for leave to appeal to the Pension Appeals Board - The member's endorsement read "[h]aving reviewed the material filed, I see no reason why the Board would interfere with the findings and conclusions of the Review Tribunal. I see no error in fact or principle on the part of the Tribunal. As well, no further material has been filed. Therefore, leave to appeal is denied" - Korese applied for judicial review of the member's decision - The Federal Court of Canada, Trial Division, allowed the application - The member adopted the wrong test for a leave application where she tested the merits of Korese's case rather than determining whether he had raised an arguable point.

Cases Noticed:

Martin v. Canada (Minister of Human Resources Development) (1999), 252 N.R. 141 (F.C.A.), refd to. [para. 6].

Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102 (T.D.), refd to. [para. 6].

Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114 (T.D.), refd to. [para. 8].

Wihksne v. Canada (Attorney General) (2000), 186 F.T.R. 124 (T.D.), refd to. [para. 10].

Salls v. Canada (Minister of Human Resources Development) (2000), 187 F.T.R. 280 (T.D.), refd to. [para. 21].

Counsel:

Ian M. Aitken, for the applicant;

Nicole Gendron, for the respondent.

Solicitors of Record:

Brant County Community Legal Clinic, Brantford, Ontario, for the applicant;

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

This application was heard on December 5, 2000, at Toronto, Ontario, before Lemieux, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on December 18, 2000.