Date: 19980225
Docket: T-2446-97
BETWEEN:
WILLIAM KRAUSE AND PIERRE DESPRÉS
IN THEIR PERSONAL CAPACITIES AND IN THEIR CAPACITIES
AS MEMBERS OF THE EXECUTIVE OF THE
SOCIAL SCIENCE EMPLOYEES" ASSOCIATION,
EDWARD HALAYKO AND HELEN RAPP
IN THEIR PERSONAL CAPACITIES AND IN THEIR CAPACITIES
AS MEMBERS OF THE EXECUTIVE OF THE ARMED FORCES
PENSIONERS"/ANNUITANTS " ASSOCIATION OF CANADA,
LUC POMERLEAU ET LINE NIQUET EN LEUR NOM PERSONNEL
ET EN LEUR QUALITÉ DE MEMBRES DE L"EXÉCUTIF
DU SYNDICAT CANADIEN DES EMPLOYÉS PROFESSIONNELS
ET TECHNIQUES, AND WAYNE C. FOY IN HIS PERSONAL
CAPACITY AND IN HIS CAPACITY AS MEMBER OF THE
EXECUTIVE OF THE AIRCRAFT OPERATIONS GROUP ASSOCIATION,
Applicants,
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
Respondent.
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] The Respondent brings a motion to strike the Applicants" originating notice of motion on the ground that it does not comply with Rule 1602 of the Federal Court Rules .1 More specifically, the originating notice of motion was filed and served out of time; it does not identify the federal board, commission or other tribunal in respect of which the application is made; it does not set out the date and details of the single decision, order or matter in respect of which judicial review is sought; and it improperly names "Her Majesty the Queen in Right of Canada" as the respondent.
[2] In a cross-motion, the Applicants move to dismiss the Respondent"s motion to strike mainly denying non-compliance with the time limitation period since the application is based on a repeated and ongoing violation of the Respondent"s duty.
[3] In the alternative, the Applicants seek an extension of time for filing their originating notice of motion and to amend their originating notice of motion and affidavits to indicate "The President of the Treasury Board" and "The Minister of Finance" as the Respondents.
[4] In the further alternative, they ask the Court that their application be treated and proceeded with as an action pursuant to subsection 18.4(2) of the Federal Court Act.2
BACKGROUND
[5] On November 13, 1997, the Applicants3
| 4 R.S.C. 1985, c. P-36.4 filed an application for judicial review. In their originating notice of motion, they allege that the Respondent does not fully adhere to the provisions of the Public Service Superannuation Act4 ("PSSA") and the Canadian Forces Superannuation Act5 ("CFSA"), particularly when it comes to administering the Public Service Superannuation Account ("PSS Account") and the Canadian Forces Superannuation Account ("CFS Account"). |
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[6] The PSSA and CFSA establish pension plans for certain public sector employees. Both statutes require the establishment of "Superannuation Accounts". These Accounts are internal accounts of the Government of Canada and their balances form part of the public debt. In these accounts are recorded debits for benefits payable and credits for employee and employer contributions as well as for interest on account balances. The credits for employer contributions and interest represent expenditures of the Government and are required to be recorded in the Accounts pursuant to subsection 44(1) of the PSSA and 55(1) of the CFSA. The subsections read:
| 44 (1) There shall be credited to the Superannuation Account in each fiscal year
(a) in respect of every month, an amount equal to the total of
| (i) an amount matching the total amount estimated by the Minister to have been paid into the Account during the month by way of contributions in respect of current service other than current service with any Public Service corporation or other corporation as defined in section 37, and |
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| (ii) such additional amount as is determined by the Minister to be required to provide for the cost of the benefits that have accrued in respect of that month in relation to current service and that will become chargeable against the Account; |
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(b) in respect of every month, such amount in relation to the total amount paid into the Account during the preceding month by way of contributions in respect of past service as is determined by the Minister; and
(c) an amount representing interest on the balance from time to time to the credit of the Account, calculated in such manner and at such rates and credited at such times as the regulations provide, but the rate for any quarter in a fiscal year shall be at least equal to the rate that would be determined for that quarter using the method set out in section 46 of the Public Service Superannuation Regulations, as that section read on March 31, 1991.
55 (1) There shall be credited to the Superannuation Account in each fiscal year
(a) in respect of every month, an amount equal to the amount estimated by the President of the Treasury Board to be required to provide for the cost of the benefits that have accrued in respect of that month and that will become chargeable against the Account; and
(b) an amount representing interest on the balance from time to time to the credit of the Account, calculated in such manner and at such rates and credited at such times as the regulations provide, but the rate for any quarter in a fiscal year shall be at least equal to the rate that would be determined for that quarter using the method set out in section 36 of the Canadian Forces Superannuation Regulations, as that section read on March 31, 1991.
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| 44. (1) Lors de chaque exercice, sont portés au crédit du compte de pension de retraite_:
a) pour chaque mois, un montant égal à la somme des montants suivants_:
| (I) le montant correspondant à la somme globale que le ministre estime avoir été versée au compte au cours du mois sous la forme de contributions à l'égard du service en cours autre que le service en cours auprès d'un organisme de la fonction publique ou autre organisme défini à l'article 37, |
| (ii) le montant additionnel qui, selon le ministre, est nécessaire pour couvrir le coût des prestations acquises pour ce mois relativement au service en cours et qui deviendront imputables au compte; |
b) pour chaque mois, le montant que le ministre détermine en fonction de la somme globale versée au compte pendant le mois précédent sous forme de contributions à l'égard d'un service passé;
c) le montant qui représente l'intérêt sur le solde figurant au crédit du compte, calculé de la manière et selon les taux et porté au crédit aux moments fixés par règlements. Toutefois, le taux applicable à un trimestre donné au cours d'un exercice doit être au moins égal à celui qui serait obtenu pour le même trimestre par la méthode de calcul prévue à l'article 46 du Règlement sur la pension de la fonction publique, dans sa version du 31 mars 1991.
55. (1) Lors de chaque exercice, sont portés au crédit du compte de pension de retraite :
a) pour chaque mois, le montant que le président du Conseil du Trésor estime nécessaire pour couvrir le coût des prestations acquises pour ce mois et qui deviendront imputables au compte;
b) le montant qui représente l'intérêt sur le solde figurant au crédit du compte, calculé de la manière et selon les taux et porté au crédit aux moments que peuvent fixer les règlements. Toutefois, le taux applicable à un trimestre donné au cours d'un exercice doit être au moins égal à celui qui serait obtenu pour le même trimestre par la méthode de calcul prévue à l'article 36 du Règlement sur la pension de retraite des Forces canadiennes, dans sa version du 31 mars 1991.
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[7] As it is indicated in the previous subsections, the Government must not only credit an amount matching the total employee contributions, but is also required to credit an amount which in the opinion of the President of the Treasury Board is necessary to ensure that future pension liabilities in respect of the current service of members of the public service are fully funded. This latter amount represents the difference between the actuarial estimation of the current value of future pension benefits payable in respect of current service made by the Chief Actuariat and the contributions made by the employees.
[8] According to the Applicants, the PSS Account and the CFS Account have been in a position of surplus since approximately 1992.6 A surplus occurs when the balances of the accounts are in excess of the obligation or liability for future employee pension benefits determined through actuarial calculations. In contrast, there is a deficit when the liability exceeds the account balances.
[9] Following the accounting procedures recommended by the Canadian Institute of Chartered Accountants ("CICA") for employee pension liabilities, the Government has proceeded to amortize the gains or the losses over a period of several years. As J. Colin Potts explains in his affidavit:7
Because the pension liabilities of all the public sector pension plans of the Government of Canada are large ($93.6 billion), minor inaccuracies in forecasting the factors used to calculate the pension liability can result in large experience gains and losses (up to $10 billion annually). Including these gains or losses in the annual deficit could make the deficit or surplus of the government fluctuate excessively and obscure the government"s operating results. Therefore, the CICA recommends spreading, or amortizing, these gains or losses over several years in order to smooth the effect on the annual deficit or surplus. Specifically, the CICA recommends using the estimated average remaining service life of employees as the period over which the gains or losses are amortized. This is approximately 13 years for the federal government.
[10] This amortization process is accomplished through a separate account called the "Allowance for Pension Adjustments Account" ("APAA"). This account was established in the 1989-1990 fiscal year8 under the authority provided to the President of the Treasury Board and the Minister of Finance pursuant to paragraph 64(2)(d) of the Financial Administration Act,9 which reads:
| 64(2) The Public Accounts shall be in such form as the President of the Treasury Board and the Minister may direct, and shall include
...
(d) such other accounts and information relating to the fiscal year as are deemed necessary by the President of the Treasury Board and the Minister to present fairly the financial transactions and the financial position of Canada or as are required by this Act or any other Act of Parliament to be shown in the Public Accounts.
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64(2) Les Comptes publics, à présenter en la forme fixée par le président du Conseil du Trésor et le ministre, comportent les éléments suivants_:
...
d) les autres comptes et renseignements relatifs à l'exercice que le président du Conseil du Trésor et le ministre jugent nécessaires à une présentation sincère des opérations et de la situation financières du Canada ou à faire figurer aux termes de la présente loi ou d'une autre loi fédérale.
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[11] The Applicants contend that by using the APAA, the Respondent has failed or refused to credit or maintain the required amounts to the credit of the PSS and CFS Accounts. They claim that the Respondent has applied portions of the amounts credited or required to be credited to the Accounts to other budgetary expenditures or to the national debt and/or has debited or reduced the Accounts in a manner not authorized by law. Thus, the Applicants seek an order in the nature of mandamus compelling the Respondent to credit the Superannuation Accounts with the required amounts which have been improperly debited or have not been credited and maintain to the credit of the Accounts all amounts required. They also seek an order prohibiting the Respondent from debiting the Accounts, as well as a declaration that the use of the APAA is contrary to the law.
ANALYSIS
[12] It is within this Court's inherent jurisdiction to strike an originating notice of motion. However, the Court's discretion can only be exercised in the clearest of cases, where the motion is so clearly improper that it is bereft
of any chance of success.10 As stated by MacKay J. in Vancouver Island Peace Society v. Canada:11
I have no doubt that within the inherent jurisdiction of the Court, in controlling its own process, there is discretion to strike an originating notice of motion seeking judicial review, but that discretion would be exercised only where it is clear there is no basis for proceeding by originating motion... It may well be that jurisdictional issues or issues relating to the manner in which the motion and supporting materials are framed will lead the Court to exercise its discretion to strike a motion without argument on its merits.12
[13] As it was previously indicated, the Respondent moves to strike the Applicants" originating notice of motion on the ground that it was filed outside the thirty day limit required by subsection 18.1(2) of the Act . The subsection reads as follows:
| 18.1(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
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18.1(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
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[14] According to the Respondent, the Applicants' originating notice of motion does not indicate the date of a decision or order that they wish to challenge and thus, it is impossible to know whether the application has been brought in a timely manner.
[15] At the hearing, the Applicants argued that they are challenging the government's practice of diverting an amortized portion of the surplus away from the impugned pension plans. They characterize this practice as an "ongoing process" wherein a number of decisions are taken, as opposed to an isolated decision. In cases such as these, this Court has allowed judicial review challenges to be brought outside the time limit since it is difficult to pinpoint a specific decision or date.13
[16] Finally, the Applicants submit that the decision to divert the amortized portions of the surplus away from the pension plans was never "communicated " to the affected parties as required by subsection 18.1(2) of the Act.
[17] In my opinion, the word "matter" found in section 18.1(1) and in the wording of Rule 1602(2)f) of the Federal Court Rules is not so much reflective of a continuous process but of the necessity to find a word to cover a variety of administrative actions which would include for instance administrative as well as judicial or quasi-judicial actions.
[18] This view was expressed by Desjardins J.A. in a lecture entitled "Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting":14
The phrase "decision or order" is also not reproduced in the new subs. 18.1(1). Only the word "matter" appears. Certainly, the word "matter" encompasses administrative as well as judicial and quasi-judicial decisions, since the new s. 18.1 combines all applications for judicial review. I will leave for future cases whether the word "matter" will cover interim decisions from federal boards as well as final decisions.15
[19] Of course, in exceptional circumstances, like in Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada),16 there can be a continuing process where it is difficult to pinpoint a date. However, I cannot accept the Applicants" argument that the "practice" at issue is an ongoing decision as a basis for finding that the application for judicial review was not late.
[20] In Drolet v. Surintendant des faillites et al,17 the Applicant sought to review the decision of the Superintendent of Bankruptcy and the Deputy Superintendent for the district of Quebec who systematically refused to issue certificates of appointment as trustee in the Applicant's name. The Applicant characterized the decision challenged as an ongoing one to attempt to avoid the effect of subsection 18.1(2). Teitelbaum J. dismissed the application for judicial review. He held that the thirty day limitation period started from the federal board's initial decision and not from the date of subsequent refusals since they flowed from the initial decision:
It is my view that the application for judicial review was late because I am satisfied that the only decision in issue is the respondents' initial decision to refuse to accept the applicant's petitions. Any subsequent refusal flowed from the initial decision of September 1, 1995 in which the respondents refused to accept any bankruptcy petitions in which the applicant named himself as the trustee without being associated with a firm of trustees, contrary to the respondents' stated requirements or, as the respondents submit, contrary to the conditions for the applicant's licence.18
[21] In the case at bar, there was an initial decision taken when the APAA was first created in the 1989-90 fiscal year. The Applicants submit that this is not the decision they are challenging. It is the practice of amortizing the surplus. Assuming that this constitutes a "decision", it still has a starting point. It commenced in 1993-94.
[22] It is this decision that is repeated year after year. Any subsequent decision to divert an amortized portion of the surplus from the pension plans flows from this initial decision.
[23] In my opinion, to accept that there is a "new" decision every year would open the door to a "floodgate" of judicial review applications. An affected party could possibly file an originating notice of motion every time a federal board takes action based on its initial decision.
[24] As for the Applicants" argument that the decision was never "communicated" to them, I do not agree. The decision to amortize the surplus was effectively communicated to the affected parties by its publication in the Public Accounts of Canada.
[25] Consequently, I find that the application for judicial review is untimely.
[26] I must now consider the Applicants" motion to extend the time within which to bring their application for judicial review. It is well established that leave to bring an application for judicial review outside the statutory time limit will be granted if the following criteria are met: (i) the Applicants can adequately explain their failure to act timely; and (ii) the Applicants have an arguable case.19
[27] In the case at bar, the Applicants have not offered any explanation for the delay to proceed other than the ongoing nature of the practice giving rise to this proceeding. In light of my previous finding that this is not an "ongoing process", I find this explanation insufficient. Moreover, because the Applicants have recognized themselves that the practice challenged started in 1993-94, they should have provided a reason why they waited so long to proceed. Having failed to do so, I do not find it necessary to look at the reasonable chance of success of this application.
[28] The motion for extension of time is denied.
[29] In the case that leave is not granted, the Applicants further request pursuant to s.18.4(2) of the Act that the Court treat this application as an action.
[30] However, as pointed out by the Respondent, the reliefs sought by the Applicants (writs of prohibition, mandamus and declaratory relief) can only be obtained on an application for judicial review made pursuant to s. 18.1 of the Act and an action could not provide any useful relief for the Applicants. I am in full agreement.
[31] Consequently, the motion to strike out the Applicants" originating notice of motion is granted and the Applicants" cross-motion is dismissed.
JUDGE
OTTAWA, ONTARIO
February 25, 1998
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1 C.R.C. 1978, c. 663.
2 R.S.C. 1985, c. F-7.
3 The Applicants apply in their personal capacity as active or retired members of the public service, as well as in their capacity of executive members of different unions and associations representing active and retired members of the public sector (such as the Social Science Employees" Association, the Aircraft Operation Group Association, the Syndicat canadien des employés professionnels et techniques and the Armed Forces Pensioners"/Annuitants" Association of Canada). The Applicants and the members of their respective associations are either contributors or beneficiaries (in the case of retired members and their survivors) of pension plans created under the Public Service Superannuation Act
, R.S.C. 1985, c. P-36, and the Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17.
4 Ibid.
5 Supra note 3.
6 Affidavit of Walter Kelm, sworn November 13, 1997 at 4. The Affidavit of J. Colin Potts filed by the Respondents indicates at par. 38 that "as of March 31, 1997, both the PSS and CFS Account balances exceeded the actuarially determined liabilities for pension benefits".
7 Affidavit of J. Colin Potts at par. 36.
8 Ibid. at par. 37.
9 R.S.C. 1985, c. F-11.
10 David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., "1995 > 1 F.C. 588 at 600 (C.A.); Vancouver Island Peace Society v. Canada, "1994 > 1 F.C. 102 at 121 (T.D.).
11 Ibid.
12 Ibid. at 121.
13 Puccini v. Canada (Director General, Corporate Administrative Services, Agriculture Canada), "1993 > 3 F.C. 557 (T.D.).
14 A. Desjardins, "Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting" in Special Lectures of the Law Society of Upper Canada 1992 (Toronto: Carswell, 1992) 405.
15 Ibid. at 429.
16 Supra note 13.
17 (1997), 118 F.T.R. 147 (T.D.).
18 Ibid. at 152-153.
19 Council of Canadians et al. v. Director of Investigation and Research, Competition Act et al. (1997), 212 N.R. 254 (F.C.A.) ; Grewal v. Minister of Employment and Immigration, "1985 > 2 F.C. 263 (C.A.).
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