PENSIONS |
Wihksne v. Canada (Attorney General)
A-516-00
2002 FCA 356, Decary J.A.
2/10/02
6 pp.
Appellant seeking disability benefits pursuant to Canada Pension Plan--Applications dismissed by Human Resources Development Canada, Minister, Review Tribunal; leave to appeal dismissed by Pension Appeals Board; application for judicial review of Board member's decision dismissed in Trial Division ((2000), 186 F.T.R. 124)--Appeal allowed-- Improper test applied below as interpretation of "regularly pursuing any substantial gainful occupation" broadened in recent case: Villani v. Canada (Attorney General), [2002] 1 F.C. 130 (C.A.)--Respondent conceding matter should be remitted to Board member for reconsideration of leave application--Issue here whether Court should refer back with directions to grant leave application--Such power exceptional: Rafuse v. Canada (Pension Appeals Board), (2002), 286 N.R. 385 (F.C.A.)--Rafuse distinguished because of essentially factual determinations--Because improper test applied, appellant never having real opportunity to present case, therefore arguable case for reconsideration of leave application--Further delay of process unconscionable-- Appeal allowed, remitted to Board for new determination on basis leave to appeal ought to be granted--Canada Pension Plan, R.S.C., 1985, c. C-8, s. 42(2) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 12; S.C. 1992, c. 1, s. 23).