A-261-78
Jose Martins (Applicant)
v.
Minister of National Health and Welfare
(Respondent)
Court of Appeal, Jackett C.J., Ryan and Le Dain
JJ.—Ottawa, October 6, 1978.
Judicial review — Jurisdiction — Decisions of Pension
Appeals Board excluded by s. 28(6) from class of decision that
may be attacked under s. 28(1) — Decision of Chairman of
Pension Appeals Board granting respondent's application for
leave to appeal decision of Review Committee — Whether or
not Chairman's decision excluded from Court's jurisdiction to
review and set aside — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28(1),(6) Canada Pension Plan, R.S.C.
1970, c. C-5, s. 85(5).
APPLICATION for judicial review.
COUNSEL:
Stephen Grace for applicant.
John R. Power for respondent.
SOLICITORS:
Burritt, Grace & Neville, Ottawa, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
JACKETT C.J.: This is a section 28 application to
set aside a "decision of the Chairman of the
Pension Appeals Board" granting an application
by the respondent for leave to appeal from a
decision of a Review Committee under the Canada
Pension Plan, R.S.C. 1970, c. C-5, as amended.
We have heard counsel for the applicant on the
question whether this Court has jurisdiction to set
aside the decision attacked and have decided not to
call on counsel for the respondent.
Section 28(6) of the Federal Court Act provides
that no proceeding shall be taken under section
28(1) thereof in respect of inter alia "a decision
... of ... the Pension Appeals Board", and, in our
view, thereby excludes the decision attacked by
this application from the class of decision that may
be attacked under` section 28(1).
We have in mind that, by virtue of section 85(5)
of the Canada Pension Plan, three members of the
Pension Appeals Board constitute a quorum. How
ever, by virtue of section 85(1), the respondent
may, "with the leave of the Chairman ... of the
Pension Appeals Board," appeal from a decision of
a Review Committee. In our view, a decision of the
Chairman as to whether or not to grant leave
thereunder is a decision by him as a member of the
Board and is a "decision . .. of ... the Pension
Appeals Board" within the meaning of those words
in section 28(6) of the Federal Court Act.
The section 28 application will be dismissed for
want of jurisdiction.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.