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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.
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