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Date: 20050825
Docket: A-96-05
Citation: 2005 FCA 280
Present: SHARLOW J.A.
BETWEEN:
JEANNE MIRIAM COOKE
Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Respondent
Dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario on August 25, 2005.
REASONS FOR ORDER BY: SHARLOW J.A.
Date: 20050825
Docket: A-96-05
Citation: 2005 FCA 280
Present: SHARLOW J.A.
BETWEEN:
JEANNE MIRIAM COOKE Applicant
and
MINISTER OF HUMAN RESOURCES DEVELOPMENT Respondent
REASONS FOR ORDER
[1] On March 3, 2005, the applicant Jeanne Miriam Cooke commenced an application for judicial review in this Court to challenge the decision of the Pension Appeals Board dated January 19, 2005. The Pension Appeals Board had dismissed Ms. Cooke's claim for a disability pension under the Canada Pension Plan.
[2] Before me are a large number of documents submitted by Ms. Cooke in relation to her application for judicial review. As most of these submissions are irregular in form or make unusual requests, the Registry has sought directions.
History [3] Ms. Cooke, who is conducting this application without the assistance of legal counsel, appears not to understand the nature of an application for judicial review, or the procedure mandated by the Federal Courts Rules. As a result, her efforts to have this matter prepared for a hearing have already required an abnormally high number of directions and orders to be made on procedural matters.
[4] In an application for judicial review of a decision of the Pension Appeals Board, this Court cannot undertake a completely new hearing of the matter that was before the Pension Appeals Board. Nor can this Court exercise any authority that Parliament has given to the Pension Appeals Board. The Court will only review the decision of the Pension Appeals Board (and reasons) against the evidence that was presented to the Pension Appeals Board, and consider whether the hearing itself was properly conducted.
[5] An application for judicial review will not succeed unless the applicant establishes one of the grounds stipulated in subsection 18.1(4) of the Federal Courts Act:
[6] An applicant for judicial review must tell the Court why she or he believes the decision of the Pension Appeals Board discloses one or more of those grounds of review. This is done first in the notice of application, and in more detail in the memorandum of fact and law.
[7] The Court considers the submissions of the parties relating to the alleged grounds of review in a manner that is consistent with the extensive jurisprudence relating to standards of review. Generally, for decisions of the Pension Appeals Board, the standard of review for questions of law is correctness. However, the Court generally will defer to the Pension Appeals Board with respect to findings of fact (that is, a finding of fact will be accepted absent palpable and overriding error).
[8] This Court's assessment of the decision of the Pension Appeals Board cannot take into account any evidence that was not before the Pension Appeals Board when it made its decision. (There are certain relatively rare exceptions relating to allegations of procedural errors, but in Ms. Cooke's case none of those exceptions appear to apply.)
[9] The evidence that may properly be considered by this Court, to the extent it is relevant to the issues raised in the application for judicial review, must be presented to the Court in the form of properly sworn affidavits in either the applicant's application record, or the respondent's application record; it does not matter which because any party in an application for judicial review may refer to material in the application record of the other party. Documentary exhibits that were before the Pension Appeals Board are normally appended to an affidavit that is included in one or the other of the application records.
[10] If, after considering all of the permissible evidence and the submissions of the parties, the Court concludes that the Pension Appeals Board made an error that requires the intervention of the Court, the remedy normally is to set the decision aside and send the matter back to the Pension Appeals Board for reconsideration. For example, in an application such as Ms. Cooke's, the Court cannot award damages or the payment of money, and it cannot award a disability pension to Ms. Cooke. If her application is successful, the most she can expect from this Court is an order for a new hearing before a different panel of the Pension Appeals Board.
[11] Against that general background, it is useful to describe a brief history of the procedural aspects of this application.
Fees [12] Ms. Cooke's notice of application for judicial review was filed with a filing fee of $2, rather then the correct filing fee, $50. That matter was finally resolved by directions of the Court on February 22 and 24 and March 15, 2005. The correct fee has now been paid.
Style of cause [13] Ms. Cooke named nine respondents in her notice of application for judicial review, in addition to the only proper respondent, the Minister of Human Resources Development. That resulted in difficulties in proving service of the notice. No such difficulties should arise in future because an order was made on March 30, 2005, to amend the style of cause.
[14] There appears to be some correspondence in which the wrong respondent is named. That is not a substantive error and misled no one. For present purposes I have ignored all such erroneous references.
Minister's notice of appearance [15] It is clear from the file that the Minister, or counsel for the Minister, received a copy of Ms. Cooke's notice of application for judicial review.
[16] On March 18, 2005, counsel for the Minister sent a letter to the Court stating out that Ms. Cooke's notice of application for judicial review was filed outside the 30 day time limit. However, that letter was not accompanied by a notice of motion to strike Ms. Cooke's application. Indeed, counsel for the Minister indicated that no objection would be made if Ms. Cooke sought an extension of time. The Minister's notice of appearance was submitted with the letter. No further action was taken with respect to the allegation that Ms. Cooke's application was late, and it has been permitted to continue.
[17] On March 24, 2005, Ms. Cooke requested that the Court strike the notice of appearance and grant summary judgment in her application for judicial review. The request for summary judgment was, in practical terms, a hopeless request. It would be most extraordinary for the Court to grant summary judgment in an application for judicial review of a decision of the Pension Appeals Board merely because of an alleged irregularity in the filing of the Minister's notice of appearance.
[18] The request for summary judgment was denied and, pursuant to a direction dated March 30, 2005, the Minister's notice of appearance was accepted for filing.
Motion for extension of time [19] Ms. Cooke filed an ex parte motion for an extension of time to comply with Rule 306 (filing of affidavits). That motion was dismissed on March 18, 2005. In a letter dated March 21, 2005, Ms. Cooke sought reconsideration of that order. That was denied on March 30, 2005. Preparation of Ms. Cooke's application record [20] On March 30, 2005, the Registry was directed to prepare Ms. Cooke's application record. Ms. Cooke was required to provide to the Registry her affidavit, other materials required to be included in her application record, and her memorandum of fact and law. Deadlines were established for each of these steps.
[21] Over the next few weeks, Ms. Cooke apparently sent a very large number of documents to the Registry with the intention that they be included in the applicant's record. She also filed a motion relating to a request that the Minister pay her certain funds. That motion was denied in an order dated May 31, 2005, because, as explained above, the relief requested was not within the Court's jurisdiction in an application for judicial review of a decision of the Pension Appeals Board. The May 31, 2005, order also required Ms. Cooke to provide her memorandum of fact and law within 10 days.
[22] During this period Ms. Cooke had submitted to the respondent a document which, by its title, apparently was intended to be a cross-examination on an affidavit submitted by the respondent. On May 31, 2005, the respondent was directed to respond to that document.
[23] The Court's direction of May 31, 2005, also included detailed instructions as to the contents of the applicant's record. It is to include only Ms. Cooke's affidavit (sworn April 1, 2005), and documents that were before the Pension Appeals Board (without duplicating material in the respondent's record). The direction clearly states that material that was not before the Pension Appeals Board would be excluded from the applicant's record. That was confirmed by a further direction on June 22, 2005.
[24] The Registry completed the applicant's record and sent the required copies to Ms. Cooke on July 8, 2005.
[25] On June 6, 2005, Ms. Cooke submitted an ex parte motion record seeking reconsideration of the order and directions dated May 31, 2005. That motion record was received but not formally filed. The June 22, 2005, direction stated that this would not be dealt with until the Minister was given an opportunity to respond. The Minister has now responded, and Ms. Cooke has filed a reply to the Minister's response.
First matter to be considered: reconsideration of the order and directions dated May 31, 2005 [26] An order will be made to ensure that Ms. Cooke's June 6, 2005, motion, the Minister's response, Ms. Cooke's reply dated June 29, 2005, and all related proofs of service, are filed.
[27] The principal concern of Ms. Cooke appears to be that, because her memorandum of fact and law must be hand-written, Parts I to IV of the memorandum may exceed the permitted 30 pages in length. She also has the mistaken impression that she is required to submit documents in French as well as English.
[28] Parts I to IV of Ms. Cooke's memorandum of fact and law, as submitted for her application record, do not in fact exceed the 30 page limit even though it is entirely handwritten. Therefore, there is no problem with the length of Ms. Cooke's memorandum of fact and law.
[29] With respect to language requirements, a memorandum of fact and law may be submitted in English only or in French only. The Rules require that parties submit both the English and French versions of any federal statutes and regulations that are referred to, but that requirement does not apply to any other material filed.
[30] In this case, an order will be made relieving Ms. Cooke of the requirement to file statutory material in both languages. It is anticipated that both the English and French versions of any applicable federal statutes and regulations will be included in the material filed by the Minister.
[31] Ms. Cooke also appears to indicate in her June 6, 2005, motion record that the Minister has not yet complied with the order to respond to what Ms. Cooke refers to as her cross-examination on affidavits (refer to paragraph 22 above). The response filed by counsel for the Minister in relation to Ms. Cooke's motion dated June 6, 2005, says that he had not yet received the cross-examination document. However, it appears from subsequent correspondence that it was received, and that the Minister has filed affidavits in response. Ms. Cooke has argued that the responses were filed late. Counsel for the Minister takes issue with that. It seems to me that they were filed on time, but in any event it is more important at this point to ensure that, as they have been filed, they are dealt with appropriately.
[32] As indicated above, the Registry has prepared and sent to Ms. Cooke the required number of copies of the applicant's application record. The Registry has now asked for directions as to whether the cross-examination and the responses should be included in Ms. Cooke's application record. I will make an order requiring that the Registry prepare an addendum to Ms. Cooke's application record containing those documents. The Registry will file four copies of the addendum, and send one copy to Ms. Cooke and one copy to counsel for the Minister.
The filing of Ms. Cooke's application record [33] On or about July 12, 2005, Ms. Cooke submitted to the Registry the required number of copies of her application record (as prepared by the Registry). It appears that a copy has been served on the Minister. An order will be made to ensure that the Court file reflects that the application records have been filed with proof of service.
[34] By letter dated July 19, 2005, Ms. Cooke advised the Registry that her name was misspelled in the table of contents in Ms. Cooke's application record. The Registry will be requested to make the required corrections manually to each filed copy.
[35] In the same letter, Ms. Cooke points out that the application record prepared by the Registry does not include a list of physical exhibits. It is not clear to me whether the physical exhibits to which she refers were before the Pension Appeals Board when it made its decision. If they were (but only if there were), it would be appropriate to ensure that a list of the exhibits is placed before the panel of the Court that considers Ms. Cooke's application for judicial review.
[36] As I cannot at this point determine what exhibits were before the Pension Appeals Board, the Registry will be directed to include the list in the addendum to Ms. Cooke's application record. However, it must be understood that the panel dealing with this application will not refer to any exhibits that were not in evidence before the Pension Appeals Board.
Ms. Cooke's objections to the Minister's application record [37] In a communication dated August 2, 2005, Ms. Cooke raised a number of objections to the Minister's application record. There is no merit to those objections.
Requisition for hearing [38] Ms. Cooke has submitted a requisition for hearing, apparently without first consulting with counsel for the Minister to determine his dates of availability. However, that error is not material as counsel for the Minister has advised the Court of his available dates. The requisition for hearing will be filed and the Judicial Administrator will be directed to set this application down for hearing in the usual way, which may involve contacting both parties to determine dates.
[39] Ms. Cooke has asked for mobility and financial assistance for the purpose of attending the hearing. The Court does not have the jurisdiction to provide such assistance to a litigant. However, there are two possible alternatives that Ms. Cooke may wish to consider that might relieve her of some of the difficulties in travelling to Ottawa for a hearing.
[40] It is possible in certain circumstances to conduct a hearing by video conference. In a video conference hearing, the judges sit at Ottawa. The parties may either come to Ottawa, or be present in a video conference facility near their own place of business or residence. I will ask the Judicial Administrator to determine whether suitable video conference facilities can be made available in Kingston, where Ms. Cooke resides. If facilities are available, and both parties are willing, the hearing of this application may be conducted in that manner.
[41] It is also possible for an applicant to have a matter determined without an oral hearing, based only on the written material filed in the Court (that is, the applicant's application record and the respondent's application record, including their respective memoranda of fact and law). If Ms. Cooke would prefer that option she may so advise the Judicial Administrator. If counsel for the Minister agrees, then the panel assigned to deal with this application will do so on the basis of the written material only.
[42] The Judicial Administrator will be contacting Ms. Cooke and counsel for the Minister in due course to discuss these options for the manner of hearing, and well as matters of scheduling.
Ms. Cooke's motion dated August 2, 2005 [43] This motion contains a request that the Minister pay certain costs, and that certain orders be made with respect to certain property in Kingston. This motion appears to have little, if anything, to do with the application for judicial review that is now before the Court. It not only refers to material that was not before the Pension Appeals Board, it requests relief that is not within the jurisdiction of this Court. The motion record will be filed, and the motion dismissed.
Ms. Cooke's communication dated August 9, 2005 [44] This communication points out that in some documents, counsel for the Minister is referring to the respondent as "The Queen" instead of "Minister of Human Resources Development". That reference is an error, but an immaterial one in the circumstances. No one is misled, and no remedial steps are required for material already submitted. Ms. Cooke's communication will be filed. Counsel for the Minister will be reminded that in future, the respondent should be correctly named.
Requests to file further material [45] In a communication dated June 28, 2005, Ms. Cooke has asked that the May 31, 2005, order and direction be included in a supplementary record. Normally, the members of the panel of this Court dealing with an application are provided with copies of all orders and directions relating to procedural matters. There is no need for those documents to be included in an application record.
[46] Ms. Cooke has made a number of other requests to supplement her application record. Four of those requests relate to material that was not before the Pension Appeals Board. All of those requests will be denied:
(1) communication dated June 30, 2005, referring to correspondence with the Canada Customs and Revenue Agency, and the Ontario Ministry of Community, Family and Children's Services;
(2) communication dated July 7, 2005, referring to correspondence with the office of the Governor General;
(3) communication dated July 7, 2005 referring to correspondence with the Ontario Ministry of the Attorney General;
(4) communication dated August 23, 2005, referring to correspondence with the Premier of Ontario.
[47] Ms. Cooke's communication dated August 5, 2005, asks that the record be supplemented to include what appear to be references to decided cases, and general information about medical conditions. Ms. Cooke's communication dated August 15, 2005, asks that the record be supplemented to include what appears to be a reference to a federal regulation. As all of that material could be considered appropriate material for the "authorities" portion of Ms. Cooke's application record, the Registry will be directed to include these documents in the addendum they are preparing.
"K. Sharlow" J.A. FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-96-05
STYLE OF CAUSE: JEANNIE MIRIAM COOKE and MINISTER OF HUMAN RESOURCES DEVELOPMENT
MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: SHARLOW J.A.
DATED: August 25, 2005
WRITTEN REPRESENTATIONS BY:
SOLICITORS OF RECORD:
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