Eddie v. Canada (Attorney General), 2003 FCT 577

Date: 20030512

Docket: T-1516-00

Neutral citation: 2003 FCT 577

BETWEEN:

                                                            WILLIAM J. EDDIE,

                                                                                                                                           Applicant,

                                                                         - and -

                                     THE ATTORNEY GENERAL OF CANADA and

                                                      CARMEN LOUISE EDDIE,

                                                                                                                                     Respondents.

                                                        REASONS FOR ORDER

LAYDEN-STEVENSON J.

[1]                The applicant, William J. Eddie, joined the R.C.M.P. on January 30, 1987, approximately 1½ years after his marriage to Carmen Louise Eddie. When Mr. Eddie and his wife separated in September, 1996, they negotiated a separation agreement to effect a resolution of all issues arising out of their marriage, including a division of property. The property included, among other things, the applicant's R.C.M.P. pension. The separation agreement, dated October 26, 1996, executed by Mr. Eddie on November 6, 1996 and by Ms. Eddie on November 20, 1996, provided for an at-source division of the pension on a "50/50 basis". At that time, both Mr. Eddie and his wife believed that Ms. Eddie's share of the pension would be approximately $15,000. When the distribution was effected, her share amounted to $37,951.25 and it was the latter amount that was transferred directly into a locked-in R.R.S.P. in her name. Mr. Eddie disagreed with the amount of the distribution made to his former wife and filed a grievance. His grievance was denied at two levels and he now seeks judicial review of the level II adjudicator's decision dated June 23, 2000.

INTRODUCTION

[2]                The Pension Benefits Division Act, S.C. 1992, c. 46 (the PBDA) provides a mechanism to divide at-source, between spouses or former spouses following marriage breakdown, pensions provided by a number of federal statutes enumerated in section 2, including the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 (the RCMPSA). Since Mr. Eddie's pension is governed by the provisions of the RCMPSA, any at-source division in relation to his marriage breakdown falls within the purview of the PBDA.

FACTS

[3]                Mr. Eddie began making contributions to his RCMP pension plan immediately upon joining the force in January, 1987. In accordance with the provisions of the RCMPSA, his pension vested on January 30, 1997, upon completion of 10 years of service. Mr. Eddie and his wife separated on September 1, 1996. At that time, or shortly thereafter (the specific date was not provided), he submitted a request for a PBDA information report. He later received a PBDA estimate report along with a covering letter from the pay and benefits specialist of the Compensation Section. The PBDA estimate report contains a summary of Mr. Eddie's pension profile (contributions and annuity entitlement) and indicates a transfer amount (in favour of his spouse) of $14,929.52 as of September 26, 1996. The report specifies that, ". . . the member is not vested at the date of division . . ." The cover letter contains a brief summary of the report, refers to an enclosed ". . .information document that describes the calculations that apply in determining the amount payable to the spouse/former spouse and explains the nature of the data that is being provided . . ." (the information document was not included in the application record), and concludes with the following paragraphs:

The amount of the pension division shown on the attached report is only an estimate of the maximum amount that could be transferred from a specific date. It is based on the entitlements of the member, as defined by the RCMP Superannuation Act (RCMPSA), as those entitlements were at the time that the report was prepared; the value is calculated over the period of time indicated on the Statutory Declaration (or Court Order or Spousal Agreement) you provided.

An actual division value would be based on salary, service and contribution data as at the date of formal division following submission and approval of an application to divide the pension. The actual value would be similar to, but not the same as, the estimate shown in the attached report.

[4]                Subsequently, the separation agreement referred to earlier was negotiated and finalized. Both Mr. Eddie and his wife were represented by counsel. Paragraph 14 of the separation agreement deals with the RCMP pension and provides as follows:

14. PRIVATE PENSIONS

(1) The husband warrants the accuracy of the Pension Benefits Division Act (PBDA) Information Report attached hereto as Schedule "C" which sets out the approximate value for a division of the husband's pension benefits under the Royal Canadian Mounted Police Superannuation Act (RCMPSA). The parties mutually agree to forthwith complete and submit whatever documentation may be required by the Minister in charge of administering the RCMPSA to promptly effect the division on a 50/50 basis of the husband's pension benefits between the husband, as a member of a federal public sector pension plan provided under the RCMPSA, and the wife, as his spouse. Once such division has been approved by the Minister, the wife's share shall be transferred as a lump sum amount directly to a retirement savings vehicle chosen by the wife. In the event that the husband dies before such equal division can be effected by the Minister, the wife's right to such equal division shall be a first lien on the Estate of the husband.

[5]                In the fall of 1996, Mr. Eddie signed the necessary documents to enable Ms. Eddie to apply for a division of the RCMP pension. The application was submitted to the RCMP Specialized Services Division of Public Works and Government Services Canada (Specialized Services) by way of registered mail on July 9, 1997. Specialized Services forwarded acknowledgements of receipt to both Mr. and Ms. Eddie on July 15, 1997. On September 6, 1997, Specialized Services forwarded the file to the RCMP National Compensation Policy Centre (NCPC) for interpretation and decision, i.e., review of the application, statutory declaration and supporting documents for compliance with the PBDA and the Pension Benefits Division Regulations, SOR/94-612 (the Regulations). On October 1, 1997, NCPC, by memo to Specialized Services, requested a certified copy of the marriage certificate. Specialized Services in turn, on December 6, 1997, asked the applicant to provide the certificate. By memo to Specialized Services dated February 17, 1998, NCPC approved the pension division. Specialized Services, in correspondence dated March 9, 1998, informed both Mr. and Ms. Eddie that the pension division had been approved, that either could challenge the approval on enumerated grounds (specified in the correspondence), and that the time period within which to challenge was 90 days. Specialized Services performed the pension division calculation on June 9, 1998 and determined that Ms. Eddie was entitled to a transfer of $37,951.25. By correspondence from the pension adviser, R.C.M.P. Services Section, dated July 3, 1998, both Mr. and Ms. Eddie were informed of the calculation of the pension division value and the transfer to Ms. Eddie. The transfer to the financial institution specified by Ms. Eddie, for deposit to a locked-in financial vehicle, was effected on July 8, 1998.

[6]                Mr. Eddie's position is that it was always his intention that the $14,929.52 referred to in the PBDA estimate report would be transferred to his former wife. That, he says, was his understanding of the agreement. On August 4, 1998, he filed a grievance pursuant to section 31 of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (the RCMPA) and requested the return of $23,021.73 to his pension plan (the difference between the amount transferred and the amount delineated in the PBDA estimate report). Over the next 15 months, there were extensive communications, to and from both Mr. Eddie and the IC Benefit Policy Unit of the National Compensation Policy Unit, all of which flowed through the reviewer/analyst of the Grievance Unit. When it became apparent that there was an impasse, Mr. Eddie requested that the matter be forwarded to the Grievance Advisory Board and to a level I adjudicator.

[7]                The decision of the level I adjudicator, dated January 31, 2000, denied the grievance. After reviewing the file in its entirety, including the various correspondence and memoranda, the adjudicator determined that the "...grievance is denied on an issue of standing". The "Findings & Recommendations" portion of the decision states:

I have read all material submitted by both parties, and reviewed the relevant material. Section 31(1) of the RCMP Act provides members with the right to file a grievance against any decision, act or omission made in the administration of the affairs of the Force, for which no other form of redress is available. This right, however, is restricted to the exercise of discretionary authorities in rendering decisions made in the administration of the affairs of the Force, and does not provide for grievances against decisions made by authorities outside the Force for decisions made in compliance to existing legislation.

The decisions which Cst. Eddie is alleging (sic) were dictated by the provisions of the Pension Benefits Division Act, a federal statute, over which the RCMP has no discretionary authority. Therefore, as the decision was dictated by statute and not one made in the administration of the affairs of the Force, the decision is not grievable under the RCMP Act.

[8]                Mr. Eddie sought a further review, under section 32 of the RCMPA, by a level II adjudicator. His grievance was denied by decision dated June 23, 2000. The level II adjudicator determined, after a review of the separation agreement, that it was clear that the provision of the separation agreement dealing with the pension did not dictate that $14,929.52 was to be paid, but that the benefit was to be divided equally. He also concurred in the level I decision that there is no standing. The salient portions of the decision are reproduced here.

Specifically, under part 14 of the agreement the division of private pensions, the Grievor agreed to "forthwith complete and submit whatever documentation may be required by the Minister in charge of administering the RCMPSA to promptly effect the division on a 50/50 basis". Schedule "C" to the agreement was a copy of a document indicating that a non-vested payout of 50% would have been $14,929.52. It does not dictate that amount is to be paid as settlement to the agreement. I am placing the emphasis on this agreement, and it is the finding of this Level II Adjudicator that the agreement has the intention to split the benefits in half.    . . .        I agree with the Level I decision that there is no standing in this matter. The administrator followed not only the particulars of the law but the spirit and intent of the law. As well, there is no merit to the argument put forward by the Grievor.

[9]                It is with respect to this decision that Mr. Eddie seeks judicial review. He requests an order that the decision be set aside, that his pension plan be credited with $23,021.73 wrongfully paid to Carmen Louise Eddie and costs.

THE RELEVANT STATUTORY PROVISIONS

Royal Canadian Mounted Police Act                                    Loi sur la gendarmerie royale du Canada

THE POSITION OF THE PARTIES

[10]            On the basis of the written submissions, the parties stand diametrically opposed regarding the question of the applicant's standing. During the hearing, the arguments and issues were refined to such an extent that the "standing" issue, while not eliminated, was considerably reduced in scope.

[11]            The applicant maintains that the narrow issue for determination is whether his pension is to be distributed in accordance with the provisions of subsection 8(1) or subsection 8(4) of the PBDA. This, he argues, is the question that the adjudicator had to determine. The grievance does not relate to a division of marital property. Rather, submits the applicant, it constitutes a challenge regarding the alternative chosen by the respondent for distribution of the pension monies pursuant to the PBDA and thus, is properly the subject matter of a grievance. The applicant further states that success, on this application, stands to be decided by a determination of whether the adjudicator properly interpreted the provision of the separation agreement dealing with the pension distribution. If the answer is yes, the applicant concedes that the distribution was properly effected in accordance with the Regulations. If the answer is no, he says that the decision must be set aside.

[12]            The respondent submits that, to the extent that the grievance is a dispute with respect to the property entitlements between spouses, it does not fall within the purview of the grievance provisions of the RCMPA because it is not concerned with the "administration of the affairs of the force". Determination of property rights between spouses, including entitlement to pensions following separation, is a matter of provincial law and is dealt with in Part I of the Family Law Act, R.S.O. 1990, c. F-3. The grievance provisions of the RCMPA and its regulations deal with labour disputes or matters affecting the terms and conditions of members. While pension rights constitute an employment benefit and, to that extent, form part of the terms and conditions of employment, division of marital property does not. The respondent concedes that the applicant has standing with respect to the narrow question - does the distribution of the applicant's pension fall under subsection 8(1) or subsection 8(4) of the PBDA? That, however, is the extent of the concession. In relation to that question, the respondent maintains that the adjudicator's interpretation of the "pension" paragraph of the separation agreement is correct and that the distribution was properly effected in accordance with the provisions of subsection 8(1) and the Regulations.

[13]            Counsel for both parties submits that the issues of standing and determination of the appropriate PBDA subsection to be applied to distribution of the pension are questions of law and that decisions relative to those questions are to be reviewed on a standard of correctness.

ISSUES

[14]            The issues to be addressed are:

(a)        the appropriate standard of review applicable to the decision of the adjudicator;

(b)        the standing of the applicant to initiate a grievance, under the provisions of the RCMPA, with respect to a pension distribution;

(c)        if standing exists, the appropriate PBDA provision applicable to the distribution of the applicant's pension.

STANDARD OF REVIEW

[15]            A pragmatic and functional analysis supports the position taken by counsel that, in the circumstances that exist here, the applicable standard of review is correctness.

[16]            The first factor of the analysis focuses on the statutory mechanism of review. Subsection 32(1) of the RCMPA provides that the Commissioner's decision is "final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal or review by any court". This constitutes a partial privative clause. It is also significant that the decision under review is a level II decision, the first level grievance having preceded it. The first factor suggests considerable deference.

[17]            The second factor is that of expertise. Here, the decision-maker has expertise in relation to the grievance process, but no expertise with respect to the subject matter of the grievance. The decision-maker possesses no greater expertise than that of the court regarding questions of standing or the appropriate statutory provision to be applied in the circumstances. The second factor calls for a low degree of deference.

[18]            The third factor, the purpose of the legislation, in this instance, involves the interplay of two pieces of legislation. The purpose of the grievance provisions of the RCMPA is to resolve labour disputes or matters affecting the terms and conditions of its members. The purpose of the provisions of the PBDA and the Regulations under consideration is to provide a mechanism for transferring pension monies out of federal plans. In the present circumstances, the issues deal with the individual rights of the applicant and cannot be said to be polycentric in nature. The third factor in this context, militates in favour of a low level of deference.

[19]            The final factor involves the nature of the problem. The issues here are primarily issues of law. The matter of standing is a question of law. The question regarding which of two statutory provisions should apply, in this instance, necessitates interpretation of a provision of an agreement. At its highest, it is a pure question of law and at its lowest, it is a question of mixed fact and law that is law-intensive. This factor suggests a very low level of deference.

[20]            Balancing these factors, I am satisfied that the appropriate standard of review, for this specific matter, is correctness. I do not suggest, nor should my conclusion be taken to imply, that correctness is the appropriate standard with respect to grievance matters generally.

STANDING OF THE APPLICANT TO INITIATE A GRIEVANCE, UNDER THE PROVISIONS OF THE RCMPA, WITH RESPECT TO A PENSION DISTRIBUTION

[21]            The analysis of this issue, for purposes of clarity and completeness, requires a brief description of the nature of the law with respect to marital property as compared with the nature of the PBDA.

[22]            Marital property law falls within provincial jurisdiction by virtue of the division of powers: Constitution Act, 1867, s. 92 (property and civil rights). Each of the provinces has enacted marital property legislation and while variations exist from province to province, in general, the scheme and purpose of the legislation is to effect an equal division of marital property upon marriage breakdown. The adjudication of property divisions has generated a plethora of case law containing rulings and determinations on various issues that include, but are not limited to, which assets and liabilities are subject to division, the valuation of assets and liabilities, the establishment of valuation dates, the exclusion of certain assets from division, the circumstances, if any, when an unequal division may be warranted and so on. The law enunciated in the legislation, and the judicial interpretation of it, constitute the substantive law of marital property.

[23]            The PBDA provides a different distribution scheme than that envisaged under provincial marital property legislation. The nature of the PBDA was described by McKeown J. in Roy v. Canada, [2002] 4 F.C. 451 (T.D.) (Roy) as follows:

. . . [T]he PBDA was enacted in 1992 and came into force in September 1994. The Act provides that, on the breakdown of a marriage or common-law partnership, where there is either a court order or separation agreement, part of a member's pension benefit under federal government pension plans, including the CFSA, can be paid out in a lump sum payment to the non-member spouse.

The Act does not create any substantive rights, but simply provides a mechanism for transferring monies out of federal plans. Under the Act, the division of the pension benefit is mandatory once a properly completed application is filed, provided there are no grounds for objection established. The application is contingent upon there being a court order or separation agreement dividing the pension. The decision to apply for a division under the Act is at the discretion of the parties. Therefore, if the parties use another method to satisfy the splitting of the value of the pension benefit, no application need be made under the Act. The maximum amount that can be transferred in respect of a non-member spouse is 50% of the value of the pension benefit which relates to the period of cohabitation (see paragraph 8(1)(a)). Once a transfer is made, there is a consequent reduction in the pension benefits payable to the plan member because part of the member's pension asset has been transferred (see paragraph 8(1)(b) and the PBDR, sections 20 [as am. by SOR/97-420, s. 4] and 21 [as am. idem, s. 5]). The money transferred to the former or separated spouse is to be placed in a pension plan, registered savings plan, or with a financial institution, so [page 471] that in effect that person now has their own pension.

[24]            In Smith v. Canada (Attorney General) (1999), 179 F.T.R. 134, Blais J. also noted that the purpose of the PBDA is "to provide a mechanism for making payments out of pension funds, not to fix the value of the pension as between spouses in property settlement (sic) made upon the breakdown of their relationship".

[25]            In most instances, an actuarial valuation of a pension, in accordance with the provisions of the applicable provincial legislation, will vary considerably from a PBDA valuation. This discrepancy has been the subject of judicial comment: Baker v. Baker (1998), 34 R.F.L. (4^th) 364 (B.C.S.C.). In Shafer v. Shafer (1996), 25 R.F.L. (4^th) 410 (Ont. Ct. Jus. Gen. Div.), aff'd. (1998), 37 R.F.L. (4^th) 104 (Ont. C.A.), Métivier J. stated:

. . . [T]he Pension Benefit Division Act "value" is one which is generally totally unreliable as an accurate valuation for specific individuals for purposes of the Family Law Act. Appealing though it may be to rely on a quick and easy solution to these difficulties of valuation, the Act remains merely a mechanism for transferring monies out of the plan. While the Pension Benefit Division Act provides for its own method of valuing pensions it does so for the federal government's own specific purposes. These include maintaining the integrity of the plan, benefiting the members as a whole, but again, only with a view to a mechanism for transferring out certain monies. These methods, however, have nothing to do with provincial laws relating to property rights and the disposition of those as between former spouses.

[26]            Where an actuarial valuation under the substantive law results in an amount that is greater than a PBDA valuation and the court orders the pension divided equally, the Minister cannot pay out an amount greater than 50% of the value of the PBDA valuation. Section 3 of the PBDA mandates that the Act and the Regulations prevail if there are any inconsistencies with any other law.

[27]            The jurisdiction of those judges determining a division of marital assets arises from the marital property legislation and it is under that legislation that an application for a division of pension benefits is made. In ordering a division of pension benefits of a member of a pension plan enumerated in section 2 of the PBDA, the judge does not exercise jurisdiction pursuant to the PBDA. The PBDA simply facilitates division at-source (the maximum available amount being based on PBDA valuation), once ordered, subject to application to the Minister: Croitor v. Croitor (2001), 14 R.F.L. (5^th) 13 (N.S.C.A.).

[28]            Mr. and Ms. Eddie, rather than a court order (PBDA para. 4(2)(a)), had a separation agreement (PBDA para. 4(2)(b)(ii)) that provided for the division of the pension benefits. Mr. Eddie does not take issue with his former wife's entitlement and he confirms that the intention was to divide the pension benefits equally between them. He does not attack the validity of the separation agreement. His complaint is that the benefits were distributed under the wrong provision of the PBDA. Mr. Eddie's complaint, therefore, does not relate to the substantive law, it is with respect to the manner in which the Minister and those acting on his behalf (NCPC) effected the distribution and more particularly, the choice of the appropriate PBDA provision in this regard.

[29]            The RCMPA provides that any member "aggrieved by any decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided...is entitled to present the grievance in writing at each of the levels...". The grievance process contemplates matters affecting the terms and conditions of members. In my view, pension plans fall under the rubric of the terms and conditions of employment of member. While generally speaking, disputes relating to the division of pension monies between spouses and former spouses fall within the substantive law relating to marital property division, that is not the situation here because Mr. Eddie is not seeking a substantive law remedy. He claims to be aggrieved by the Minister's application of the provisions of the PBDA, a matter not falling within the jurisdiction under which substantive law issues are determined. In my view, given the nature of the specific issue raised by Mr. Eddie, the grievance process is broad enough to encompass his complaint. In this respect, I am in agreement with the position of counsel for both parties that Mr. Eddie does have standing to grieve the decision of the authorities acting on behalf of the Minister (NCPC) to process the distribution of his pension under subsection 8(1) rather than 8(4) of the PBDA. Thus, the level II adjudicator erred in law in determining that there is no standing.

THE APPROPRIATE PBDA PROVISION APPLICABLE TO THE DISTRIBUTION OF THE APPLICANT'S PENSION

[30]            For ease of reference, the relevant portions of subsections 8(1) and 8(4) are again reproduced here.

[31]            Mr. Eddie's position is that the provision of the separation agreement dealing with the pension division requires the Minister to transfer one half of his unvested pension entitlement. Relying on subsection 8(4), he argues that the contractual provision specifically contemplates a lump sum transfer and identifies Schedule "C" (the PBDA estimate report dated September 26, 1996) as setting out the approximate value for division. Nothing in the separation agreement, says Mr. Eddie, suggests a division of entitlements accruing after the date of separation. Therefore, the Minister and the authorities acting on his behalf erred in interpreting the contract to require an equal division of the vested value of the pension and the adjudicator similarly erred. Mr. Eddie submits that the valuation date is the date of separation and it is that date that ought to have been applied.

[32]            The arguments advanced by Mr. Eddie involve two issues: the appropriate valuation date and the interpretation of the contractual provision of the separation agreement. I will deal first with the valuation date.

[33]            Under the substantive law, the valuation date is the date of separation. That is not the case under the PBDA. Subsection 2(1) of the Regulations defines "valuation day" as "the day in respect of which the determination of the value of a member's pension benefits is made pursuant to these Regulations". Hence, under the PBDA, "valuation day" is the day upon which the pension is valued for purposes of distribution, in other words, the calculation day: Swan v. Canada (Attorney General) (1998), 234 N.R. 12, 47 R.F.L. (4^th) 282 (F.C.A.). Here, that date was June 9, 1998. The member's status (vested or non-vested) on the valuation day, by virtue of section 13 of the Regulations, determines whether the value is to be calculated in accordance with sections 14 and 15 or section 16 of the Regulations. Although the PBDA valuation date post-dates the date of separation, only that portion of the pension acquired during cohabitation is divided. On the PBDA valuation day, Mr. Eddie was vested and his pension was valued appropriately in accordance with the applicable regulations. His argument with respect to valuation date must fail. The date is prescribed and there is no provision that enables the Minister, a court, or a plan member to alter it. If Mr. Eddie is to succeed, he must establish that subsection 8(4) applies.

[34]            The PBDA contemplates that pension division can be achieved by other means: Roy, supra; Cornect v. Poirier-Robichaud (2000), 13 R.F.L. (5^th) 363 (N.B.C.A.); Parsons v. Parsons (1995), 17 R.F.L. (4^th) 267 (Ont. Ct. Jus. Gen.Div.); Christian v. Christian (1995), 10 R.F.L. (4^th) 302 (N.S.S.C.). Typically, provisions in separation agreements providing for lump sum amounts that differ from entitlement amounts for pension monies arise where there are off-setting assets or debts being transferred and the pension payment amount is adjusted accordingly. There is, however, nothing to preclude spouses from specifying a lump sum amount for another reason. Where a lump sum amount is specified in relation to a division under PBDA, the Minister will transfer the amount so specified provided that, as stated earlier, the amount is less than 50% of the value of the benefit. In my view, for Mr. Eddie to come within subsection 8(4), he had to specify the amount to be transferred. In short, "lump sum amount" means a sum certain, a specified amount. Paragraph 14 of the separation agreement does not contain a specified amount for transfer.

[35]            Counsel urges me to interpret this provision of the separation agreement to mean that the specified amount is to be ascertained by the Minister by reference to Schedule "C". I am not so inclined and I note, in passing, that Schedule "C" was not annexed to the copy of the separation agreement that was submitted with the initial application. If I am wrong in this respect, I do not, in any event, find that paragraph 14 can be interpreted as a directive to the Minister. The first sentence of paragraph 14 references the PBDA estimate report. It does nothing more than reference it. It neither specifies nor signifies acceptance of the value contained in the report as being the value to be used as a lump sum amount for purposes of the transfer of pension monies to Ms. Eddie. It could have done so, but did not. There is no reference to the estimate report in the operative portion of the paragraph relating to the division of the benefit. In terms of division, the paragraph states:

. . . The parties mutually agree to forthwith complete and submit whatever documentation may be required by the Minister in charge of administering the RCMPSA to promptly effect the division on a 50/50 basis of the husband's pension benefits between the husband, as a member of a federal public sector pension plan provided under the RCMPSA, and the wife, as his spouse. Once such division has been approved by the Minister, the wife's share shall be transferred as a lump sum amount directly to a retirement savings vehicle chosen by the wife. In the event that the husband dies before such equal division can be effected by the Minister, the wife's right to such equal division shall be a first lien on the Estate of the husband.

[36]            In my view, this language, rather than suggesting an intention to transfer a lump sum amount, constitutes a statement that Ms. Eddie's entitlement and share of Mr. Eddie's pension benefit is to be 50%. In this respect, the provision is consistent with the entire agreement. If the intention was otherwise, it was incumbent on the parties to the agreement to so state. Separation agreements are contracts. Although they arise in a unique legal context and differ from commercial contracts, they are nonetheless contracts: Miglin v. Miglin 2003 SCC 24">2003 SCC 24. I conclude that the adjudicator did not err when he determined that the provision in the separation agreement should be interpreted to mean that the pension benefits were to be split in half.

[37]            This result may seem unduly harsh to Mr. Eddie whose pension valuation falls within a relatively small percentage of cases where, between the date of separation and the date of valuation, the pension vests and as a result, its value is significantly enhanced. However, Mr. Eddie must accept that the initial estimate report was precisely that - an estimate of the value of an unvested pension. The covering letter that accompanied it specifically stated that an "actuarial division value would be based on salary, service and contribution data as at the date of formal division following submission and approval of an application to divide the pension" (emphasis added). Mr. Eddie was represented by counsel during the negotiation and execution stages of the separation agreement and must be taken to have known that he had to be separated from his spouse for a period of one year before an application for division could be effected (PBDA, para. 4(2)(b)(ii)). He was aware, or ought to have been aware (having served as a member of the force for 9 years and 8 months) that the vesting of his pension was imminent. The correspondence regarding approval of the division stated that "the amount payable under the PBDA will be 50% of the actuarial present value, calculated in accordance with the Act, of the benefits that accrued during this period" (emphasis added).   

[38]            In the result, I conclude that the adjudicator erred in law in his determination that "there is no standing". The adjudicator was correct in his determination that "the agreement has the intention to split the benefits in half" and that "there is no merit to the argument put forth by the Grievor". Had the adjudicator determined only the issue of standing, without consideration and determination regarding the merits, I would remit the matter back for redetermination. However, notwithstanding that there exists reviewable error, it is not appropriate to refer the matter back because the merits have been determined and determined correctly. To send the matter back would be to elevate form over substance.    A discussion of the circumstances in which a court may refuse to provide relief in the face of reviewable error is provided in Owusu v. Canada (Minister of Citizenship and Immigration) 2003 FCT 94. I adopt the words used by my colleague Gibson J. when he stated, "Acknowledging that to refuse to provide relief in the face of reviewable error is truly exceptional and should not be applied broadly, I am satisfied that this is a case that justifies denying relief".

[39]            The application for judicial review is dismissed and an order will so provide. The respondent did not seek costs and none are awarded.

___________________________________

Judge

Ottawa, Ontario

May 12, 2003.

                        FEDERAL COURT OF CANADA

             Names of Counsel and Solicitors of Record

DOCKET:                                           T-1516-00

STYLE OF CAUSE:               WILLIAM J. EDDIE

Applicant

- and

THE ATTORNEY GENERAL OF CANADA AND

CARMEN LOUISE EDDIE

Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       APRIL 29, 2003

REASONS FOR ORDER BY:           LAYDEN-STEVENSON, J.

DATED:                                              May 12, 2003

APPEARANCES BY:                         Ms. Martha Cook          

For the Applicant

Ms. Caroline Engmann

For the Respondent, The Attorney General of Canada

SOLICITORS OF RECORD:           Blake, Cassels & Graydon       

Barristers and Solicitors

                                                            Toronto, Ontario             

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent