Digests

Rafuse v. Canada (Pension Appeals Board)

A-818-00

2002 FCA 31, Evans J.A.

22/1/01

7 pp.

Appeal from Trial Division order allowing application for judicial review of Pensions Appeals Board's refusal to grant leave to appeal Review Tribunal's decision--Tribunal upheld Rafuse's claim disabled within Canada Pension Plan, s. 42(2) and thus entitled to disability pension, but holding disability commenced in 1994 when first examined by his expert medical witness--Rafuse maintaining disability commenced in 1991 when stopped working because of illness--Board refusing leave to appeal on ground evidence to support Tribunal's conclusion with respect to date of onset--On judicial review, Judge holding correct test to be applied by Board on leave application whether arguable case which might succeed on appeal--Concluded refusal of leave unreasonable and since evidence sufficient to enable Rafuse to succeed on appeal, granted leave to appeal--Appeal allowed--Board's decision could not stand as not applying correct test in deciding leave application--But Judge had no power to substitute her view for that of Board on proper disposition of leave application under Federal Court Act, s. 18.1(3)--Rafuse arguing Judge's order justifiable as exercise of Court's power under s. 18.1(3)(b) to set aside decision, refer it back for determination in accordance with such directions as considers appropriate--Arguing appropriate for Judge to exercise power by directing verdict since decided only decision reasonably open to Board that Rafuse satisfied legal test for grant of leave to appeal--That argument rejected--Application to facts of correct legal test, namely whether Rafuse established on evidence before Board arguable case which might succeed on appeal, largely question of fact within Board's exclusive jurisdiction-- Because misdirected itself in law on test for deciding leave applications, Board yet to make essentially factual determination required of it--On application for judicial review, in absence of error of law in tribunal's fact-finding process, or breach of duty of fairness, Court may only quash decision of federal tribunal for factual error if finding perverse or capricious or made without regard to material before tribunal: s. 18.1(4)(d)--If as result of error of law tribunal omitted to make relevant finding of fact, including factual inference, matter should normally be returned to tribunal to enable it to complete its work--Judge would have erred in law if, having set aside decision of Board, remitted matter with direction Board grant Rafuse leave to appeal--Directed verdict exceptional power to be exercised only in clearest of circumstances--Such rarely the case when issue in dispute essentially factual in nature, particularly when tribunal not making relevant finding--Important to respect large degree of autonomy Parliament granting to Board on questions of fact, even though effect of decision further delay--Matter remitted to another member of Pension Appeals Board--Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1 (as am. by R.S.C. 1990, c. 8, s. 5).