Administrative law – Decisions of administrative tribunals – Pension Appeals Board – Judicial review – Jurisdiction of tribunal – Evidence – Estoppel and res judicata – Limitations
Canada (Minister of Human Resources Development) v. Hogervorst,  F.C.J. No. 37, Federal Court of Appeal, January 15, 2007, Létourneau, Malone and Ryer JJ.A.
Hogervorst, a 46-year-old registered nurse, applied for disability benefits under the Canada Pension Plan. Her application was denied both initially and upon reconsideration, as she was not considered disabled. Hogervorst was informed she had 90 days to appeal from the consideration decision. She did not appeal within the time specified. She made a second application for benefits in January 2000. Her application was again denied, both initially and upon reconsideration. An appeal to the Reconsideration Tribunal was unsuccessful as the Tribunal held that there were no new facts with respect to the first decision and that Hogervorst did not have a severe and prolonged disability. Hogervorst did not appeal the decision of the Reconsideration Tribunal. Hogervorst applied on November 16, 2001 to re-open the first decision. Her application was dismissed on the grounds that there was no new evidence upon which to reconsider the decision. Hogervorst was granted leave to appeal from this decision. The Board dismissed an objection to its jurisdiction to hear the appeal. The Federal Court quashed that decision, ruling that the Board had no jurisdiction to hear the appeal since there were no new facts. Hogervorst then applied for judicial review of the original, 1997 decision, in March 2005. Her application was made ex parte. A member of the Board granted her request for an extension of time and leave to appeal from the 1997 decision, although more than seven years had elapsed since the decision was rendered. No reasons were issued by the member. The transcript showed the member expressed the opinion he had an obligation to look after Hogervorst as a self-represented litigant. The Minister unsuccessfully challenged the extension of time and leave decision by way of judicial review in the Federal Court. The Minister appealed that decision.
The Federal Court of Appeal set aside the decision of the Federal Court and the Minister’s application for judicial review was allowed. The Board member’s decision granting Hogervorst an extension of time and leave to appeal was quashed. The Court held that there was no point in sending the matter back to the Board for reconsideration. The Judge should not have allowed Hogervorst to collaterally attack the second decision finding that she did not have a disability by allowing her to appeal from the first decision. Permitting the appeal to go on could result in inconsistent decisions. The member improperly exercised his discretion in granting Hogervorst’s application where there were two subsequent decisions on the same issue that were not challenged. It would have been unreasonable for the Judge to conclude Hogervorst had a continuing intention to appeal from the first decision in the circumstances. Hogervorst lacked an arguable case that she was disabled and there were three decisions rendered finding she was not. Hogervorst offered no sufficient explanation for the delay in bringing her appeal from the first decision. The issue of prejudice to the Minister should have been considered, but was not. The Board member went beyond merely assisting Hogervorst as a self-represented litigant in coming to its decision. In the result, the Minister’s appeal was allowed.
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