The Honourable Diane Finley, P.C., M.P.
Minister of Human Resources and Skills Development Canada
House of Commons
Ottawa, Ontario
K1A 0A6
Dear Minister:
I have the honour to present the Annual Report of the Office of the Commissioner of Review Tribunals for the period of April 1, 2007 to March 31, 2008.
Yours very truly,
Philippe Rabot,
Commissioner
"To ensure expert, independent, unbiased quality service to all parties to an appeal to a Review Tribunal by treating all parties to the appeal equally, fairly and with understanding, respect and dignity."
I am privileged to be heading an organization where every employee and every member strives to offer the best possible service to the parties to our proceedings. Administrative tribunals exist for the purpose of ensuring that decisions made by government which affect citizens are subject to appropriate scrutiny and are made in a manner that is fair and respects the law, including both the governing legislation and the case law which has interpreted such legislation. This presupposes, therefore, that the tribunal demonstrates expert knowledge of the law, provides a reasonable and equal opportunity to be heard to all of the parties, displays an understanding and an appreciation of the relevant issues in dispute and is able to provide well-reasoned decisions written in plain language. These are all objectives we seek to pursue.
The number of appeals to Review Tribunals has stabilized in recent years. It has fluctuated between 4,000 and 5,000 per year for the past five years and is likely to remain within such a range for at least several more years. Hearings are held across Canada, in small and large urban centres, as close as possible to where Appellants are located.
The change in government in 2006-07 resulted in a significant turnover of members and 2007-08 was no exception, with 94 members being appointed during this period, of which only six were reappointments. During the same period, the terms of 69 members expired. Such a high turnover has created a significant challenge for the Office of the Commissioner of Review Tribunals (OCRT) to ensure that all members have the required skills to perform at an acceptable level.
The OCRT has continued to explore and develop new mechanisms to ensure that Appellants are fully prepared for their hearings and know what is expected of them from Review Tribunals. The year saw some significant developments in that regard including, amongst others, a pilot project on early counselling.
I would like to thank the staff of this Office and members of Review Tribunals for their continued dedication to ensuring that our process is effective and that Review Tribunals are able to discharge their responsibilities in a manner that is consistent with the objectives of the legislation.
Philippe Rabot,
Commissioner
Extensive effort was deployed during the year to address the professional development needs of Review Tribunal members. Much of the training was developed and delivered by our own employees and within our premises. It addressed a wide range of issues in which members are expected to be proficient.
A total of nine week-long Canada Pension Plan orientation sessions were held for new members appointed throughout the year. This program addresses all of the components of the Canada Pension Plan with which members need to be familiar, as well as many other aspects of the law that influence the conduct of hearings and decision-making. These include the assessment of credibility, rules of evidence and principles of administrative law. Members are also given the opportunity to simulate the experience of a hearing and deciding an appeal by reviewing an appeal record, conducting a hearing, participating in the decision-making process and writing reasons for decision. Discussions on cultural diversity and communication techniques to address Appellants who have physical and mental disabilities also form an important part of the training agenda. As well, various ethical scenarios are reviewed with the participants in an effort to ensure that they demonstrate a high standard of probity and impartiality at all times.
Two Old Age Security orientation sessions were held in 2007-2008, providing training to 38 Panel Members. Because there are substantially fewer appeals under the Old Age Security Act (OAS), many Review Tribunal members never hear such an appeal. For this reason, there is no need for all Members to be expert in this area. There must, however, be members knowledgeable about OAS appeals in all parts of the country and this is taken into account when identifying members to attend OAS orientation sessions.
In an effort to encourage medical and community members to share some of the decision-writing responsibilities which would otherwise fall on the shoulders of the legal member alone, two decision-writing workshops were held in 2007-2008 which attracted the participation of 25 members. This was in addition to three such workshops in the previous year. This training will continue to be provided on an ongoing basis. Participants are instructed on various techniques to enable them to draft reasons for the decision in a manner that is clear, coherent and satisfies the parties that their concerns were both listened to and addressed. Participants report that these workshops also succeed in enhancing their preparation and questioning skills at hearings, as well as their decision-making skills.
Three roundtables were held for members who had been sitting for six months to a year. A total of 70 members attended. The purpose of the roundtables is to provide a forum for each category of tribunal member where discussions can take place respecting areas of concern and where such members can benefit from the insights of more experienced members. More importantly, they provide an opportunity for members to share ideas on exemplary hearing practices. In 2007-08, an explanation of the new legislative rules to qualify for a disability pension under Bill C-36 was provided, as well as an update on recent case law.
Furthermore, the "Panel Member Communiqué", a newsletter issued quarterly to our members, continues to serve as an informational tool on addressing CPP/OAS legislative changes, what is happening within the OCRT and provides additional knowledge to assist Panel Members at hearings and when making decisions. A sampling of issues addressed in 2007-08 included amendments to the Division of Unadjusted Pensionable Earnings (DUPE) provisions under the Canada Pension Plan (Bill C-36), articles on recent jurisprudence, as well as informative medical pieces on the determinants of health, sleep disorders, naturopathic medicine, and literacy and its impact on disability issues. A series of practice directions on various procedural issues, as well as ethics scenarios, was also included.
A key activity during the year for the Commissioner and Deputy Commissioner was the preparation of performance evaluations for 93 members. The purpose of the evaluations is to ensure that tribunal members are provided with candid feedback on the quality of their participation in the hearing and decision-making process, as well as the decision-writing process for those who are involved in it. The process included: interviews with at least three other members who sat with the member; self-assessment interviews with the affected members; impressions the Commissioner and Deputy Commissioner arrived at through attendance at hearings to which these members were assigned; an in-depth review of written reasons for decision or dissenting opinions which these members may have prepared; and, consideration of any feedback that may have been received from parties regarding the conduct of the members. In each case, a written performance evaluation report is prepared in which narrative comments are provided as to the extent to which the members meet the detailed assessment criteria that have been developed. The written evaluation is communicated to the Office of the Minister at least six months before the end of the member's term.
It had been realized for some time that the payment policy approved in 2001 by the Minister required revision in order to better recognize all members, not just legal members, who can be called upon to draft written decisions. This review also provided an opportunity to address other related issues designed to ensure an equitable formula for compensating members.
Throughout 2007-08, steps were taken to secure the necessary funding to cover the recommended revisions to the new payment formula for Panel Members. A Treasury Board submission for this additional funding was approved by TBS Ministers in March 2008.
The revised payment policy came into effect on April 1, 2008 and it was based on an understanding provided by the Minister that medical and community members who are interested in participating in decision-writing would be given in-depth training and support by the OCRT.
The increasing diversity of the Canadian population is reflected in the background of individuals appealing to Review Tribunals. We have, over time, taken various steps to enhance how we meet the needs of these individuals. The latest multilingual service introduced by our office is the provision of "over-the-telephone" interpretation services.
We can now provide "over-the-telephone" service to our Appellants whose first language is Italian, Portuguese, Punjabi, Greek, Spanish, Polish, Croatian, Arabic, Chinese or Vietnamese. This was based on an historical review of the language needs most frequently requested by our Appellants. This service allows for rapid and reliable response to questions Appellants may have regarding their appeal, the hearing process, their responsibilities and the entitlements in terms of preparing for and attending the hearing, etc. This interpretation service, along with informational brochures and fact sheets (in these same top ten languages), assists our office in working towards providing better client service to Canadians.
An environmental scan of OCRT operational processes and procedures was undertaken and completed in the final quarter of 2006-2007. The report of the findings and recommendations was issued in April 2007. Several important changes were made based on recommendations emanating from the Scan. Others will be addressed as part of the Appeals Management Process.
In the last quarter of 2006-07, the OCRT launched an Early Counselling Pilot involving two Ontario hearing locations. In May 2007, the pilot expanded to six locations in British Columbia, Manitoba, Ontario and Newfoundland and Labrador. The purpose of the pilot was to introduce hearing scheduling practices that reflected the readiness of the parties and the availability of panel members.
The pilot provided for: a full review of the hearing file by operational staff prior to contacting the Appellant to understand the issues and how they affect that particular individual; an early distribution of the Department's file to the Appellant and their representative to promote early preparation for a hearing; early contact with the Appellant or their representative to establish their readiness to proceed; encouragement to submit any additional information well before the hearing date; and, lastly, ongoing support to Appellants to respond to any questions or concerns up to the hearing date.
The pilot ended in December 2007, and produced some very concrete results and insights, which include:
Building on the results of the Early Counselling Pilot, the Appeals Management Process initiative commenced in Fall 2007. This initiative was established to review all case management practices including case triage, as well as counselling and scheduling practices, with a view to further enhance the efficiency and effectiveness of the Review Tribunal appeals process. It is estimated that full implementation of the new process across Canada will be completed in 2009-10.
| Year ending March 31st | ||||
|---|---|---|---|---|
| 2004-2005 | 2005-2006 | 2006-2007 | 2007-2008 | |
| Salary | $ 4,573 | $ 5,032 | $ 5,276 | $ 5,412 |
| Students | $ 80 | $ 86 | $ 122 | $ 100 |
| Panel Members Earnings | $ 3,790 | $ 3,989 | $ 3,638 | $ 4,407 |
| O&M | $ 4,644 | $ 4,819 | $ 4,389 | $ 4,937 |
| Total | $ 13,088 | $ 13,926 | $ 13,426 | $ 14,856 |
| Fiscal Year | ||||
|---|---|---|---|---|
| 2005-2006 | 2006-2007 | 2007-2008 | 2008-2009* | |
| Number of Appeals Received | 4535 | 4994 | 4148 | 4000 |
| Number of Hearings | 3783 | 3696 | 4296 | 3840 |
| Fiscal Year | ||||
|---|---|---|---|---|
| 2005-2006 | 2006-2007 | 2007-2008 | 2008-2009* | |
| Appeals Allowed | 1717 | 1539 | 1898 | |
| Appeals Dismissed | 1355 | 1195 | 1421 | |
| Adjourned | 583 | 667 | 873 | |
| Withdrawal | 23 | 23 | 38 | |
| Total Decisions Issued | 3678 | 3424 | 4230 | |
| Application for Leave to Appeal to P.A.B. | 648 | 631 | 623 | |
During the year, the Federal Court of Canada issued three decisions which pertain to the scope of the Commissioner's authority to extend the 90-day period to appeal a decision to a Review Tribunal. Close to 10% of appeals received in any year are submitted beyond the 90-day deadline. Extensions are granted in approximately 80% of cases.
In one of three cases heard by the Federal Court, the Office of the Commissioner of Review Tribunals was granted intervener status in Canada (Attorney General) v. Pentney, 2008 FC 96. The matter was heard in October 2007 and the decision issued in January 2008. Mr. Justice Lemieux set out the factors to be applied by the Commissioner in exercising his discretion on late appeals:
The Court emphasized that these factors were not conjunctive; rather, a flexible and contextual analysis could be applied to identify the relevant factors in each case and to assign weight to them.
In Canada (Attorney General) v. Schneider 2008 FC 764, the Court emphasized the highly discretionary nature of the Commissioner's decision on late appeals. The Court noted that unless the matter was contested or the person most likely to be detrimentally affected was not legally advised or sophisticated, that it would place an unreasonable burden on the Commissioner to require detailed reasons that articulated jurisprudence and its application to the facts associated with each criterion. In Canada (Attorney General) v. Berhe 2008 FC 967, the Court again emphasized the need for flexibility in the approach to late appeals.
The Canada Pension Plan allows appeals from Review Tribunal decisions to the Pension Appeals Board. Although leave to appeal is required for this final level of appeal, once leave is granted, the Pension Appeals Board (PAB) hearing is a trial de novo on the merits of the application for benefits. Generally, courts are reluctant to intervene in a matter until all appeal options have been exhausted. Consequently, it is rare for a Review Tribunal decision in a CPP matter to be judicially reviewed by the courts.
Until recently, there was one significant exception to this situation. Subsection 84(2) of the Canada Pension Plan allows a Review Tribunal, on new facts, to rescind or amend its decision. This is a two-part process. First, an individual must establish new facts. This has been defined in case law to cover information that would not have been discoverable at the time of the earlier hearing, and that could reasonably be expected to affect the outcome. If new facts are not established, that is the end of the Review Tribunal's authority to reconsider its own decision. If new facts are established, the Review Tribunal will hold a hearing on the merits of the application for benefits.
Federal Court of Appeal decisions in 2004 and 2005 had the effect of bifurcating the appeal process on Review Tribunal decisions under subsection 84(2). If new facts were established and the Review Tribunal went on to make a decision on the merits, there was an appeal (with leave) to the Pension Appeals Board. If new facts were not established, the only recourse available was to apply for judicial review of the Review Tribunal's decision to the Federal Court. In September 2007, in the case of Mazzotta v. Canada (Attorney General) 2007 FCA 297, the Federal Court of Appeal ruled that all decisions made by a Review Tribunal under subsection 84(2) were subject to appeal to the Pension Appeals Board; it was no longer necessary for decisions where new facts were not established to go to the Federal Court rather than the Pension Appeals Board as this process put "an unnecessary and unwarranted constraint on the fairness and efficiency of the adjudicative process put in place by Parliament."
A Review Tribunal is the final level of appeal regarding benefits under the Old Age Security Act. A dissatisfied party to an appeal may make an application for judicial review of the Review Tribunal's decision to the Federal Court. Only one decision reviewing a Review Tribunal decision under the Old Age Security Act was issued by the Federal Court in 2007-2008.
In November 2007, in Sell v. Canada (Attorney General) 2007 FC 1313, the Federal Court considered a Review Tribunal decision on the constitutionality of subsection 3(1) of the Old Age Security Act. Prior to July 1, 1977, individuals were entitled to a full OAS pension if they could qualify under the existing rules. On July 1, 1977, the Old Age Security Act was amended so that the OAS pension was calculated on the percentage of (40) years of residence in Canada; in effect, this allowed individuals who could not qualify for a full pension to qualify for a partial pension. Mr. Sell immigrated to Canada in November 1979. Had he immigrated prior to July 1, 1977, he would have been entitled to a full pension if he had resided in Canada for 10 years just prior to his application. Under the amended legislation, he was entitled to a partial pension of 25/40ths for his years of residence from the time he immigrated until his 65th birthday. Mr. Sell argued that this violated subsection 15(1) of the Canadian Charter of Rights and Freedoms. However, this provision of the Charter did not come into effect until 1985. The Court ruled that it could not be applied retrospectively. The Federal Court dismissed the application for judicial review. Mr. Sell argued that his status as a landed immigrant was "ongoing" rather than a specific event in time, thus circumventing the issue of retrospective application. However, the Court agreed with the majority decision of the Review Tribunal that characterizing Mr. Sell's entry into Canada as an event was more consistent with existing jurisprudence.
Once an appeal is received, a determination is made by the Commissioner as to whether the appeal can be scheduled for a hearing. An appeal must be submitted within 90 days of the decision under appeal being communicated to the Appellant. However, the Commissioner can extend that deadline in appropriate circumstances. An appeal must also pertain to an issue that is within the mandate of a Review Tribunal to address. For instance, Review Tribunals cannot award a greater period of retroactivity payments than what is permitted by the Canada Pension Plan or Old Age Security Act.
If the Commissioner concludes that a hearing should be scheduled, the OCRT will request from Human Resources and Skills Development Canada (HRSDC) a copy of the reasons for the decision under appeal and copies of all the documents that formed the basis for that decision. The Office will also ask the Appellant, the Department and any other parties for copies of any additional documents that they believe may be relevant to the appeal. The OCRT assembles all these documents into a "hearing file" that is sent out in advance of the hearing to all the parties, their representatives and Tribunal Members.
A "Notice of Hearing" and the hearing file are mailed to all parties approximately four months before the hearing date. The Commissioner then assigns three members to hear the appeal. Hearings are conducted at accessible locations within the Appellant's community (or as reasonably close to it as possible). Hearings can also occur by teleconference. Hearings are closed to the public, as required by the Review Tribunal's Rules of Procedure. Generally, the parties to an appeal are:
The powers of a Review Tribunal include the authority to determine any question of law or fact with respect to:
The Tribunal considers all oral and written evidence provided by the Appellant and the Department, and renders a written decision with detailed reasons which is sent to the parties generally within eight weeks of the hearing.
Review Tribunal hearings are held across Canada and are heard in either official language. If Appellants are unable to communicate effectively in English or French, the OCRT will arrange for and pay the cost of a professional interpreter. Interpretation services are also offered for the hearing and sight impaired. During 2007-08, such arrangements were made for 641 hearings.
Review Tribunal members are located throughout Canada to ensure that hearings can take place in every region. The qualifications that they are expected to have include:
Members are also required to attend training, follow the tribunal's practices and procedures, and maintain confidentiality. All members must participate in an orientation training session before they can hear an appeal.
There are three categories of Member:
The legislation stipulates that a member of the bar must chair all hearings. A qualified health professional must serve on tribunals adjudicating appeals on entitlement to disability pensions under the Canada Pension Plan.
| Province | Legal Members | Medical Members | Community Members |
|---|---|---|---|
| Newfoundland and Labrador | Beresford, Aidan Bonnell, Archibald Boone, Ernest Brannan, Katrina Warren, Philip |
Christopher, Jeannette Evans, Eileen Halloran, Dean Lawlor, Helen Rowe, Lisa Suley, Elizabeth |
Duffett, Marilyn Feltham, Charles Lomond, Diane Lundrigan, Dominic O'Rielly, Albert Peddle, Scott |
| Prince Edward Island | MacArthur, Robert Nicholson, Laura |
MacPhee, Rhonda Peters, Noella |
MacKay, Gordon Mullen, Frederick |
| Nova Scotia | Bryan, Dena Deveau, Gilles Gogan, Robin Jacquard, Raymond Lorway, Charles MacLean, James Nickerson, Andrew Smith-Camp, Dixie Stewart, Robert |
Comeau, Shelly Deveau, Cathy Large, David MacLachlan, James Naqvi, Mahmood Nurse, Eugene Wilcox, Anne |
Allard, Granville Campbell, Lloyd Dewell, Randolph Goodwin, Gloria Heyge, Elva Hum, Bernard Kervin, Ronald Larsen, Milton MacDougall, Joyce Surette, Ronald Tattrie, Lloyd Wilson, Geoffrey |
| New Brunswick | Doiron, Léo Goguen, Robert Hanson, John McAllister, John Palmer, Andrew Wade, Jean-Raymond |
Chishti, Ayub Dionne, Rachel Doucet, Charles Gulliver, Sandra Hudson, Gloria LeBouthillier, Lawson Tobias, Linda |
Boudreau, Dorothy Dubé, Jean Mallet, Robert Murray, Wellington Pellerin, Donald Scott, Gordon |
| Quebec | Castonguay, Marie-Josée Langlois, Maxime Lupien, Pierre Vanasse, Yvon |
Arslanian, Abel-Claude Bouchard, Luc Déry, Suzanne |
Bourdeau, Pierre Pelletier, Jacques |
| Ontario | Ballagh, Margot Brothers, Kevin Burgar, John Cogar, Kim Coulter, Brian Crawford, Norman De Angelis, Vincent Eberhard, John Ellery, Leonard Gelman, Stanley Goodman, Robert Hammond, James Hazlett Parker, Valerie Hooker, Edwin Howarth, Steven Hyer, Edward Iler, Andrew Inch, John Jolly, Kamal Kinahan, Blake Lacroix, Claude Landriault, Rodrigue Leroy, Rick Lewandowski, Roger Marotta, Brian Mason, Crystal Middlebro', John Mostyn, Alan Murphy, Sharon Nawaz, Neil Nemetz, Theodore O'Neil, Patrick Paquette, Norman Parker, Thomas Partridge, Martin Poirier, André Rosolak, John Schwartz, Macey Searle, James Staples, Diane Viner, Walter Walker, Bobbie Watkins, Christopher Williams, Paul |
Ahuja, Prakash Bondar, Arthur Brewer, Mark Campbell, Carolyn Carli, Maureen Crockford, Judith Duncanson, Michelle Galbraith, Jane Gilmore, Paul Granville, Richard Grennell, Eleanor Grossi, Danny Gryfe, John Hayden, Nancy Hui, John Jireada, Josée Kirk, Gayle Krys, Irene Loewen, Rita Masotti, Ronald May, David Meechan, Eileen Poirier, Lucille Radin, Steve Riverso, Teresa Russell, Donald Shields, John Spencer, Shirley Stapleford, Ann Thompson, Jane Verhoeven, Linda White, Eleanor Wightman, Anne Wilson, Thomas |
Amos, Suzanne Appelt, Pamela Burns, Peter Carruthers, Clyde Cassidy, David Castonguay, Arlette Clarke, Catherine Coffey, Roberta Coveney, Graham Dietsch, Michael Dolliver, Kendall Durnbeck, Louis Eadie, Dennis Feldman, Alice Gaudreau, Robert Gladstone, Sydney Halloran, Martin Harley, Henry Healey, Clyde Hébert, Philippe Huggins, John Joannette, Nelson Joynt, Lorraine Kenny, Margaret Lee, Clemence Li, Ki Kit MacLeod, Norman Masters, Jack Matthews, Ruth Parrotta, Gilbert Pennock, Robert Phippen, Lynn Pratas, Katalin Schirk, Joan Schnabel, Wayne Shan, Gloria Sheppard, Donald Sherazi, Asif Sherwood, Kelley Wadehra, Shakti Simmons, Rosemarie Sloan, Christopher Spina, Joseph |
| Manitoba | Enns, Cornelius Gilson, Kimberley Johnston, Robert Lanchbery, Sheldon |
Gates, Sherrie Poulson, Keith Rennie, William |
Cunningham, Louise Harland, Harvey Wood, Jennifer |
| Saskatchewan | Abrametz, Peter Sonnenschein, Emanuel |
Kolitsas, Spiro Solar, Sherri |
Julé-Thimm, Nicole |
| Alberta | Connelly, Liam Gaffney, Harry Handel, Brent Kolias Lougheed, Vivian Schumacher, Stanley |
Albrecht, Harvey Anderson, Carol Rempel, Jocelyn Woof, Elaine |
Aspell, Clairissa Burgener, Jocelyn Dreeshen, Judy Hindson, Eric Johnson, Louis Nguyen, Thanh Presizniuk, Colin |
| British Columbia | Clarke, William Friesen, Kenneth Ginther, Lorne Jackson, Wendy Pedersen, Leigh Silver, Cindy Smith, Susan Walton, Kenneth |
Beattie, Craig Brinkerhoff, John Cumming, Roger Entner, Shelby Fedorkiw, Marie Thérèse Gregory, Ian Higgs, Ernest Jago, Mary McFadyen, Carol McKenzie, Wendy Nixdorf, Don Penner, Lee Ross, Susan Schloegl, Andrea von Schellwitz, Sally |
Awan, Mahmood Bisson, Robert Blachford, Bruce Chaplin, Gurjit Dunleavey, Melvin Entner, Ryan Grigg, Harvey Klassen, Abraham McLean, Wendy Naknakim, Roderick Reid, Lorna Sykes, Eric |
Appendix "D" - Organization Chart

Appendix "E" - Commissioner's Office

Appendix "E" - Corporate Services

Appendix "E" - Tribunal Operations and Communications
