Federal Court finds in favour of CPP disability benefits applicant
Attorney General of Canada v. Berhe 2008 FC 967:
Kirk Wirsig of our firm, on behalf of the disabled Respondent, recently appeared before Shore J. in the Federal Court of Canada, in an application by the Attorney General for judicial review of a decision by the Office of the Commissioner of Review Tribunals (OCRT), wherein the Commissioner granted the Respondent’s request to appeal a decision of the Minister of the Department of Social Development.
The Respondent, our client, was an emigrant from Ethiopia with a grade seven education obtained in Ethiopia, who worked in Canada as a housekeeper until August 2002. She applied for CPP disability benefits on March 12, 2004. The Minister denied her application for disability benefits on July 15, 2004 and again on October 26, 2004. At the time of the disability benefits denial, there was no further medical information available to support an appeal of her claim.
In 2006, the Respondent approached Mr. Wirsig of our firm to represent her in this matter. On March 7, 2006, almost a year and a half after the latest denial, he wrote to the OCRT and indicated that the Respondent wished to now appeal the decision of the Minister, and enclosed a medical report as evidence. This letter was received 413 days after the 90 day period to request an appeal had expired. The OCRT requested a detailed explanation for the lateness of the appeal request before the Commissioner would consider exercising the discretion to grant an extension of the 90 day appeal period.
Two reasons were given for the lateness of the appeal. First, due to the language barrier, the Respondent was unclear as to the time frame she had to appeal the CPP disability benefits decision. Second, she had no additional medical evidence to support her claim the time of the initial denial in 2004. Further communications by counsel for the Respondent reiterated that the Respondent’s delay in pursuing an appeal was due to "a poor understanding of the English language” and “the mechanics of the appeal process."
In response, the OCRT Commissioner advised that he had exercised his discretion to extend the appeal deadline and accept the Respondent’s appeal. He had exercised his discretion in favour of the Respondent on the basis of her poor understanding of the English language and her difficulty in understanding the mechanics of the appeal process. It is this decision of the Commissioner that was the subject of this appeal.
J. Shore held that the standard of review as to whether a Commissioner has considered proper factors in the exercise of his discretion to extend the time for an appeal to the Review Tribunal is a question of law and should therefore be reviewed on a standard of correctness.
J. Shore found that (i) the Respondent had a strong case on the merits based on the medical evidence which confirmed her total disability, (ii) that the Respondent’s disability was present at the time of the initial application for CPP disability benefits and (iii) that therefore there was a compelling argument that the Respondent was disabled within the meaning of the CPP legislation at the time of the initial application.
In ensuring that justice is done between the parties, a flexible approach is taken. J. Shore points out that the underlying consideration which must be borne in mind in dealing with applications such as the case at bar, is whether justice, in the circumstances presented, calls for the granting of an extension. He refers to the case of Grewal v. Canada (Minister of Employment and Immigration)  2 F.C. 236, 36 A.C.W.S. (2D) 451 with approval, wherein J. Louis Marceau commented: "For example, a compelling explanation for the delay may counterbalance a weak case against Judgment, and a strong case may counterbalance a less satisfactory justification for the delay."
J. Shore recognized that discretion, among other fundamental principles, must be exercised on the merits of each case and in good faith. The decision maker must consider all relevant considerations and comply with the principles of natural justice and fairness. J. Shore held that the Commissioner had considered the proper factors in the exercise of his discretion to extend the time for appeal to the Review Tribunal and that he “properly embraced the flexible and contextual approach espoused by the Federal Court of Appeal.” The Commissioner was therefore entitled to exercise his discretion by considering all the facts before him, including the relevant merits of the Respondent’s claim on the ultimate issue of total disability based on expert medical opinion.
The judgment by J. Shore is welcomed, as it ultimately seeks to do justice between the parties by applying a flexible approach and taking into consideration the specific circumstances presented by an applicant such as those presented by the Respondent in the case.
Link to judgment