[1993] 1 F.C. 222
T-1173-92
Mary Peplinski (Applicant)
v.
Her Majesty the Queen (Respondent)
Indexed as: Peplinski v. Canada (T.D.)
Trial Division, Noël J.—Ottawa, October 14 and 28, 1992.
Health and welfare — Pensions — Application for mandamus requiring Review Tribunal to hear appeal under Canada Pension Plan, s. 82(1) — Pension denied — Minister subsequently reviewing allegedly new facts filed in support of s. 84(2) application to amend decision, but decision not changed — S. 82(1) appeal from refusal to amend decision denied on ground no right to appeal because no new decision made — Once Minister deciding new facts warranting review of original decision, fresh decision results as based on different facts than original decision and appeal lies.
This was an application for mandamus directing the Office of the Commissioner of Canada Pension Plan Review Tribunals to hear the applicant’s appeal under the Canada Pension Plan, subsection 82(1). The applicant’s request for a disability pension under the Plan had been denied in 1987. Subsection 84(2) of the Plan allows the Minister to rescind or amend his decision on the basis of new facts at any time. In July 1991 the applicant applied under subsection 84(2) to have the decision amended or rescinded based on allegedly new facts. After reviewing the information provided, the Minister replied that the decision remained unchanged. Under subsection 82(1) a decision under subsection 84(2) may be appealed within ninety days of notification of the Minister’s decision. Applicant appealed but was advised that she had no right to appeal because no new decision had been made as a result of the consideration under subsection 84(2). The issue was whether the Minister’s refusal to amend or rescind his original decision could be appealed under subsection 82(1). The respondent argued that no appealable decision is made unless the Minister amends or rescinds his decision.
Held, the application should be allowed.
The right of appeal under subsection 82(1) can only be exercised if the Minister decides to reconsider his original decision in light of new facts. If the Minister, in the exercise of his discretion under subsection 84(2), decides that there are no new facts which would warrant a reconsideration of the original decision, no fresh decision has been rendered and no right of appeal lies under subsection 82(1). Where, as here, the Minister decides that the new facts do warrant a reconsideration, a fresh decision will result as it will be based on facts different from those considered when the original decision was rendered, and a right of appeal will lie whether the original decision is allowed to stand or not.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 60(7), 81 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45), 82(1) (as am. idem), 84(2) (as am. idem).
Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48, s. 57 (as am. by S.C. 1974-75-76, c. 80, s. 20; 1976-77, c. 54, s. 48).
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Fortin v. Employment and Immigration Commission (Can.) (1988), 21 F.T.R. 280 (F.C.T.D.).
CONSIDERED:
Calder v. Minister of Employment and Immigration, [1980] 1 F.C. 842; (1979), 107 D.L.R. (3d) 738; 80 CLLC 14,009; 31 N.R. 56 (C.A.).
APPLICATION for mandamus directing the Office of the Commissioner of the Canada Pension Plan Review Tribunals to hear an appeal under Canada Pension Plan, subsection 82(1). Application allowed.
COUNSEL:
Catherine E. Tully for applicant.
Robert P. Hynes for respondent.
SOLICITORS:
Renfrew County Legal Clinic, Renfrew, Ontario, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Noël J.: Applicant seeks an order in the nature of mandamus directing the Office of the Commissioner of Canada Pension Plan Review Tribunals (herein the “Review Tribunal”) to hear her appeal under the Canada Pension Plan, R.S.C., 1985, c. C-8 (hereinafter “the Act”).
The relevant facts are as follows. By a decision rendered on September 14, 1987, the applicant’s request for a disability pension under the Canada Pension Plan was denied under subsection 60(7) of the Act. An attempt to appeal that decision was made in February 1991, four years later, but was turned down on the ground that the appeal was not taken within the twelve-month limitation period provided for by subsection 81(1) of the Act.
On July 17, 1991, applicant attempted to have the decision of September 14, 1987 amended or rescinded as a result of the submission of new facts, as contemplated by subsection 84(2) of the Act. By letter dated October 29, 1991, the Minister of National Health and Welfare (herein “the Minister”) advised the applicant that “after reviewing this information our disability adjudication staff has determined that the previous decision remains unchanged.” Applicant then made an application under section 81 [as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45] of the Act to have the matter reconsidered by the Minister. By letter dated January 15, 1992, signed by Mr. Gascon, an appeals officer with the Appeals and Controls Programs, applicant was advised as follows:
I should first explain that under Section 84(2) of the Canada Pension Plan, a decision made under this Act may be amended only on the basis of new facts; that is, new information that was not available at the time the decision was made.
A review under Section 84(2), however, is not an issue that can be appealed further, since any decision made under the Plan may be changed provided new facts are presented. In view of the circumstances, you will understand why your notice of appeal under Section 81 of the legislation cannot be considered with respect to your request for a review under Section 84(2).
The medical advisers in the Disability Operations Division have reviewed all the information on Mrs. Peplinsky’s file and have concluded that no new facts were made available to warrant the re-opening of Mrs. Peplinski’s case. The evidence available now, and at the time of her application in April, 1987, still does not indicate that Mrs. Peplinski was disabled within the meaning of the legislation at the time of the initial decision in September, 1987. Therefore, since the 1987 decision cannot be re-opened on the basis of the evidence available, and the prescribed period of time to appeal the 1987 decision to the Minister has expired, I regret to advise that no further consideration can be given to Mrs. Peplinski’s eligibility for disability benefits under the Canada Pension Plan.
Faced with this, applicant, on January 29, 1992, appealed under subsection 82(1) [as am. idem] of the Act the Minister’s refusal to amend or rescind the original decision to the Review Tribunal. By letter dated 25 March 1992, the same appeals officer advised applicant that she had no right to appeal to the Review Tribunal because:
Please note that the decision which is to be rescinded or amended is the decision that was made in September, 1987, as no other decisions were made with respect to the 1987 application. Our medical advisers reviewed the documentation you submitted; however, it was considered that no new facts were presented to warrant the re-opening of Mrs. Peplinski’s case; consequently, the September, 1987, decision could not be changed.
If, as a result of the consideration under Section 84(2), the 1987 decision had been amended, and if, upon being notified of the new decision, you had been dissatisfied with that new decision, then the new decision made pursuant to Section 84(2), could have been appealed under Section 82(1). This, however, is not the case in this instance. Since no new decision could be made, there is nothing to appeal.
On April 9, 1992, applicant wrote the Office of the Commissioner of Review Tribunals directly, requesting that her appeal be heard by the Review Tribunal. This request was denied by letter dated April 22, 1992. Applicant now moves before this Court for an order in the nature of mandamus, directing the Review Tribunal to hear her appeal.
Counsel for the respondent, who I understand also spoke for the Review Tribunal, argued his case on the basis that the new appeal provisions under subsection 82(1), which came into force on December 31, 1991, are applicable to the case at hand. This, I believe, is the correct view as the appeal was launched on January 29, 1992, that is after the coming into force of the amendment.
Prior to December 31, 1991, no statutory appeal lay from a ministerial decision under subsection 84(2) [as am. idem]. Subsection 82(1) now provides:
82. (1) An applicant or beneficiary or his spouse, former spouse or estate who is dissatisfied with a decision of the Minister under section 81 or subsection 84(2) or, subject to the regulations, any person on his behalf, may appeal from the Minister’s decision to a Review Tribunal within ninety days after the day on which he is notified in prescribed manner of the Minister’s decision, or within such longer period as the Minister may allow.
Subsection 84(2) provides:
84. …
(2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be.
The sole issue for determination is whether the Minister’s refusal to amend or rescind his original decision on the basis of alleged new facts as contemplated by subsection 84(2), is a decision which can be appealed under subsection 82(1).
Counsel for respondent argued that unless the Minister actually amends or rescinds the original decision on the basis of the new facts, no appealable decision is made and the original decision simply continues to have effect as rendered. Counsel for the applicant argued that a refusal by the Minister to rescind or amend his original decision in the light of the new facts is a decision under subsection 84(2), with the result that an appeal lies under subsection 82(1).
The statutory scheme provides for an appeal as of right from the Minister’s original determination that no benefit is payable. That determination becomes final and conclusive unless the right of appeal is exercised within twelve months after the month in which applicant receives notification thereof. Beyond that period, subsection 84(2) allows the Minister, on his own volition, to rescind or amend his original decision at any time on the basis of new facts, and subsection 82(1) now provides the applicant with an appeal from such a decision which must be exercised within ninety days of the notification of the Minister’s decision.
In my view, the right of appeal from a decision of the Minister under subsection 84(2) on new facts is not a substitute or an alternative to the right of appeal from the Minister’s original decision. The purpose of subsection 84(2) is to empower the Minister to reconsider his original decision on the basis of new facts, and subsection 82(1) now provides for a right of appeal against a decision rendered by the Minister on the basis of new facts. It follows that this right of appeal can only be exercised if the Minister decides to reconsider his original decision in light of new facts. If the Minister, in the exercise of his discretion under subsection 84(2), concludes that there are no new facts which would warrant a reconsideration of the original decision, no fresh decision can be said to have been rendered and no right of appeal lies under subsection 82(1). However, if the Minister decides that the new facts warrant a reconsideration of his original decision, a fresh decision will result under subsection 84(2) as it will be based on facts different from those under consideration when the original decision was rendered, and a right of appeal lies under subsection 82(1). This is the result whether or not the original decision is amended, rescinded or is allowed to stand as originally rendered. A decision based on new facts is a fresh decision irrespective of whether the original decision is allowed to stand or not.
Counsel for the respondent brought to my attention the decision of Fortin v. Employment and Immigration Commission (Can.) (1988), 21 F.T.R. 280 (F.C.T.D.), where, dealing with a similar statutory scheme under the Unemployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48, s. 57 (as am. by S.C. 1974-75-76, c. 80, s. 20; 1976-77, c. 54, s. 48)], my brother Denault J. held that no appeal could be had from a reconsideration of an original decision unless the original decision was actually modified. The relevant provisions were as follows:
57. (1) Notwithstanding section 102 but subject to subsection (6), the Commission may at any time within thirty-six months after benefit has been paid or would have been payable reconsider any claim made in respect thereof and if the Commission decides that a person has received money by way of benefit thereunder for which he was not qualified or to which he was not entitled or has not received money for which he was qualified and to which he was entitled, the Commission shall calculate the amount that was so received or payable, as the case may be, and notify the claimant of its decision.
(2) Any decision made by the Commission pursuant to subsection (1) is subject to appeal under section 94.
In coming to his conclusion, Denault J. relied on an earlier decision rendered by Marceau J. (as he then was) dealing with the same issue. He stated, at page 284:
In short, as Marceau J. said in his refusal to allow the first application for a writ of mandamus, “the right of appeal referred to in subs. 2 of the said section applies only to a genuine review decision, in other words one that alters an original decision. …”
I believe that the statutory scheme then under consideration is somewhat different than the one before me. As the Court of Appeal had stated earlier in Calder v. Minister of Employment and Immigration, [1980] 1 F.C. 842, at page 853:
The authority conferred by section 57 is not confined to the reconsideration of decisions, as such, but is an authority to reconsider “any claim” in respect of which benefit has been paid or should have been paid.
Furthermore, and more importantly, the power of the Commission to reconsider prior claims is not contingent upon the existence of new facts. The Commission has unlimited authority under section 57 to revisit prior claims. Changes in policy, a departure in the interpretation of benefit provisions, an administrative error, or a reconsideration of the facts underlying the original claim are all valid grounds for review. In fact, nothing as such prevents the Commission from revisiting a prior claim where nothing has changed, in the expectation that the discretion underlying the original decision may perhaps be exercised differently. In these circumstances, it cannot be said with certainty that, as Marceau J. put it, a “genuine review decision” is rendered unless the original decision is actually altered.
Here, however, the review power requires, in the first instance, that the Minister decide whether he has before him new facts, i.e., facts which, looked upon independently, are susceptible to alter the original decision. Once he decides that he does and undertakes a review of the original decision, the review process is the same whether it leads to a decision to rescind, amend or to allow the original decision to stand. That being so, the ensuing decision is equally genuine as a review decision, whether or not it alters the original decision.
Going back to the case at hand, the full text of the Minister’s notification of October 29, 1991, is reproduced below.
Thank you for submitting information in support of Mrs. Mary Peplinski’s eligibility for Canada Pension Plan Disability benefits.
After reviewing this information our disability adjudication staff has determined that the previous decision remains unchanged.
This notification, while ambiguous, does suggest that the original decision was reconsidered in light of the new facts submitted, but that after reconsidering the original decision, it was decided that it should remain unchanged. The letter of January 15, 1992, from Mr. Gascon, the appeals officer, is clearer. It states:
The medical advisers in the Disability Operations Division have reviewed all the information on Mrs. Peplinski’s file and have concluded that no new facts were made available to warrant the reopening of Mrs. Peplinski’s case. The evidence available now, and at the time of her application in April 1987, still does not indicate that Mrs. Peplinski was disabled. …
The foregoing indicates that the Minister did indeed decide to reconsider his original decision in light of the newly submitted information and that the conclusion reached was that the original decision should nevertheless remain unchanged. When the appeals officer writes in the above passage that “no new facts were made available to warrant the reopening of Mrs. Peplinski’s case”, he obviously means that the new facts submitted did not, in the end analysis, warrant changing the original decision. It is clear from the above-noted passage that the Minister undertook a review of “all the information on Mrs. Peplinski’s file” and reconsidered his original decision on the basis of both “[t]he evidence available now, and at the time of her application in April of 1987.” Counsel for the respondent recognizes so much in paragraph 3 of his notes of argument when he states, by reference to a memorandum explaining the basis for the ministerial decision rendered under subsection 84(2):
The basis for this disposition of her application was stated by Mr. J. Lawford (in his memorandum dated 22 June 1992) to be: In Ms. Peplinski’s case, our medical advisers concluded that the new facts provided did not warrant the 1987 decision to be cancelled or modified; therefore, as the discretion allowed in section 84(2) could not be applied in this case, no further action can be taken. It is clear from this that the medical report was considered to have supplied “new facts” and it was on this basis that the Minister, i.e., the Department, exercised the jurisdiction conferred by s. 84(2).
I am therefore satisfied that the Minister did, in the first instance, decide that he had before him new facts which warranted a review of his original decision, and then proceeded to review his original decision in light of the new facts submitted by the applicant. Having done so, his decision to maintain his original decision under subsection 84(2) is a fresh decision for which an appeal lies under subsection 82(1).
I should point out in closing that the distinction now being drawn was not relevant prior to December 31, 1991, because no statutory appeal existed with respect to decisions based on new facts under subsection 84(2). The Minister had a discretion under subsection 84(2) to decide whether or not to reconsider his original decision and, if he chose to do so, no appeal lay from the ensuing decision whether it was to rescind, amend or allow the original decision to stand. There was therefore no need to distinguish between those cases where the Minister chose to exercise his discretion to review his original decision in light of new facts, and those where he concluded that the new facts were not such as to require that a review of the original decision be undertaken. Now that a statutory appeal has been created, that distinction becomes essential as an appeal lies whenever the Minister chooses to exercise his discretion to reconsider his original decision based on new facts.
For the above reasons, a writ of mandamus directing the Office of the Commissioner of Canada Pension Plan Review Tribunals to have a Review Tribunal hear the appeal of the applicant under subsection 82(1) will be issued, with costs against the respondent.