Federal Court of Appeal - Ettinger v. Canada (Minister of Human Resources Development)

[1] It is only on the strength of the admission contained at paragraph 14 of the respondent's submissions that Mr. Justice Décary and I are able to consider the applicant's argument that he was denied natural justice when his request for an adjournment to allow Dr. Leighton to testify was denied. The circumstances surrounding the request and its refusal ought to have been the subject of an affidavit.

[2] All that we have before us is the fact that a request for adjournment was made and denied, the fact that the Board's reasons make no mention of the requested adjournment and the fact that the Board appears to have discounted Dr. Leighton's expert reports on the basis that he had become an advocate.

[3] On those bare facts, and preferring to err on the side of caution we find that it was a denial of natural justice to deny the applicant the right to have his expert's evidence heard viva voce when it was clearly material to the outcome. The Board may have had its reasons for refusing the adjournment but in the absence of an explanation we are unable to credit them.

[4] Accordingly, we would allow the application for judicial review, set aside the decision of the Board and send the matter back for a new hearing by a differently constituted Board.

[5] In the circumstances there will be no order as to costs.

"J.D. Denis Pelletier"

J.A.

NADON J.A. (Dissenting)

[6] I cannot agree with my colleagues that there was a denial of justice that warrants allowing the applicant's judicial review application.

[7] Because there is no evidence whatsoever before us concerning the applicant's request for an adjournment of his hearing before the Pension Appeals Board (the "Board") by reason of Dr. Leighton's inability to attend the hearing and the alleged circumstances giving rise to the applicant's request, I am unable to determine whether the Board's refusal to grant the adjournment constitutes a denial of natural justice.

[8] In my view, the fact that the respondent has conceded that the Board did refuse the adjournment sought by the applicant is of no help to him. We are left without evidence with respect to the circumstances which could have justified an adjournment of the hearing.

[9] I would therefore dismiss the application for judicial review with costs.

"Marc Nadon"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-198-04

(APPEAL FROM AN ORDER OF THE PENSION APPEALS BOARD DATED MAY 27, 2003, FILE NO. CP 19939)

STYLE OF CAUSE: Allan B. Ettinger v. The Minister of Human Resources Development

PLACE OF HEARING: Halifax, Nova Scotia

DATE OF HEARING: June 16, 2005

REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A.

DISSENTING REASONS BY: NADON J.A.

APPEARANCES:

Robert Pineo

FOR THE APPLICANT

Marcus Davies

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Patterson Palmer

Truro, Nova Scotia

FOR THE APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE RESPONDENT