Federal Court of Appeal - Thanos v. Canada (Attorney General)

[1] This is an appeal from a decision of a judge of the Federal Court dismissing a motion for an extension of time to file an application for judicial review of a decision of the Review Tribunal. The motion was dismissed on the ground that the application for judicial review gives no information as to why the decision in question was wrong but merely asserts that it was.

[2] A short procedural history is required to put the issue in context. The appellant applied for disability benefits under the Canada Pension Plan R.S.C. 1985 c. C-8 (the Plan) but his application was refused. He later made an application to have the decision amended on the basis of new facts pursuant to ss. 84(2) of the Plan. The Review Tribunal rejected the application on the basis that the facts presented were not new facts. On August 29, 2003, the Chair of the Pension Appeal Board granted the appellant leave to appeal the Review Tribunal's decision. The appellant took the necessary steps to perfect his appeal within the applicable time limits.

[3] In November 2004, before the appellant's appeal had been heard, counsel for the Minister contacted the appellant to advise him that, as a result of the decision of this Court in Oliveira v. Minister of Human Resources Development 2004 FCA 236, his appeal was bound to fail. Counsel pointed out that Oliveira decided that the Pension Appeal Board had no jurisdiction to entertain an appeal from a finding that there were no new facts. Such a decision could only be challenged by an application for judicial review before the Federal Court. However, because the 30 day limit for making such an application had long since expired, it would be necessary to make a motion for an extension of time within which to commence an application for judicial review. Counsel indicated that the Minister would not oppose such an application if it were made within 6 months of her letter.

[4] The appellant had some difficulty retaining counsel but was eventually able to do so. Counsel brought the motion for an extension of time within which to commence an application for judicial review of the determination that there were no new facts. The motion was unopposed. The motions judge's dismissal of that motion led to this appeal.

[5] This is an appeal from a discretionary order of a judge. In Reza v. Canada [1994] 2 S.C.R. 394, the Supreme Court of Canada held that "the test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations." See para. 20. In his order, the judge points out that the applicant had not shown why the order under appeal was wrong. In Grewal v. Canada (Minister of Citizenship and Immigration) [1991] 1 F.C. 581, this Court identified the presence of an arguable a case as one of the factors which, according to the circumstances, could be taken into account when deciding whether to grant an extension of time to file an application for judicial review. I infer that this is what the motion judge had in mind when he focussed on the merits of the application.

[6] In granting the applicant leave to appeal to the Pension Appeal Board, as he did, the Chair of the Board must have been satisfied that the appeal had sufficient merit to proceed. This was a factor going to the issue of the merits of the appeal which ought to have been considered by the judge and given appropriate weight in the exercise of his discretion. On the basis of the judge's order, we are unable to determine if he failed to consider this element, or whether he considered it and gave it no weight. In either case, I am of the view that a relevant consideration was not given sufficient weight. In coming to this conclusion, I am mindful of the fact the motion for an extension of time was in essence a request for a change of forum. The applicant had done all he had to do to get his appeal before the Pension Appeal Board and was simply attempting to get before the proper decision-maker.

[7] In those circumstances I am of the view that the appeal should be allowed, the decision of the motions judge set aside and the motion for an extension of time to commence an application for judicial review allowed. The appellant should be given until December 16 to file and serve his notice of application for judicial review.

(Sgd.) "J.D. Denis Pelletier"

J.A.

"I agree" (Sgd.) "Marshall Rothstein"

J.A.

"I agree" (Sgd.) "Marc Nadon"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-122-05

STYLE OF CAUSE: ALEXANDROS THANOS v. AGC

PLACE OF HEARING: Vancouver, BC

DATE OF HEARING: November 30, 2005

REASONS FOR JUDGMENT: Pelletier, J.A.

DATED: December 1, 2005

APPEARANCES:

Mr. Garth Barriere

FOR THE APPELLANT

Ms. Sandra Gruescu

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Barrister & Solicitor

Vancouver, British Columbia

FOR THE APPELLANT

Deputy Attorney General of Canada

Ottawa, Ontario

FOR THE RESPONDENT