Date: 20040123
Docket: T-1661-02
Citation: 2004 FC 101
Ottawa, Ontario, the 23rd day of January 2004
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
THE MINISTER OF HUMAN
RESOURCES DEVELOPMENT
Applicant
and
MONA NÉRON
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review, pursuant to subsection 18(1) and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of a decision by a review tribunal created pursuant to section 28 of the Old Age Security Act, R.S.C. 1985, c. O-9 (the Act). The review tribunal (the tribunal) had allowed the respondent's appeal from a decision by the Minister of Human Resources Development Canada (HRDC), which had inter alia ordered the respondent to reimburse a sum of $9,909.57 for an overpayment of spouse's allowances, when she was in fact separated from her spouse.
POINTS AT ISSUE
[2] The points at issue are the following:
1. Did the tribunal err in law in concluding that the respondent was not separated from her spouse?
2. Did the tribunal exceed its jurisdiction by ordering the payment of interest on money already recovered, if applicable?
[3] For the following reasons, I answer these two questions in the affirmative and accordingly allow the application for judicial review.
FACTUAL BACKGROUND
[4] On October 2, 1961, the respondent married Marcel Pesant. On April 7, 1995, the applicant received an application for a spouse's allowance payable under the Act and made by the respondent. In October 1998, the respondent and Mr. Pesant began living apart. On July 30, 2001, the applicant received a form from Mr. Pesant on which he indicated that he had been separated from the respondent since October 1, 2000. On August 17, 2001, the applicant received a form titled "Statutory Declaration - Separation of Legal Spouses . . .", in which the respondent stated she had lived apart from her spouse since September 1998. After receiving this form, the applicant sent the respondent a letter dated September 17, 2001, telling her that as of October 1998 she was no longer eligible for the spouse's allowance benefit. A review of the respondent's account disclosed that for the period from October 1998 to December 2000 she had received an overpayment of $9,909.57. At the same time, the sum of $974.81 was owed to her for the period from January 2001 to August 2001, as the respondent reached the age of 65 on December 15, 2000. Accordingly, an amount equivalent to $8,934.76 had to be reimbursed from the respondent's monthly benefit as of October 2001.
[5] In a letter dated September 22, 2001, the respondent reiterated that on September 19, 1998, Mr. Pesant had left the marital residence. In the same letter, she asked that her allowance be reviewed.
[6] On November 23, 2001, the applicant received a questionnaire completed by Mr. Pesant indicating that he had not lived under the same roof as the respondent since September 1998. He mentioned he did not regard himself as having voluntarily separated, but had left the marital residence because of mental cruelty. He added he could not gain access to the marital residence as the respondent had changed the locks.
[7] On December 4, 2001, the respondent was told that her case had been reviewed and that there was in fact an overpayment of $9,909.57 for the period from October 1998 to December 2001.
[8] By a letter dated September 17, 2001, the respondent appealed this decision to a tribunal. On July 3, 2002, a tribunal was convened and rendered its decision on August 26, 2002.
IMPUGNED DECISION
[9] In its reasons of August 26, 2002, the tribunal found the following:
[TRANSLATION]
The appeal is accordingly allowed, the Department's decision to claim an overpayment of some $9,909.57 is cancelled for all legal purposes, the appellant is entitled to the full pension with no deductions for her alleged overpayment, and consequently any amount withheld on account of the cancelled decision shall be reimbursed to the appellant, if applicable, and the tribunal considers it is fair and reasonable that in the present case any amount that may be owed to the appellant should be reimbursed to her with interest.
[10] It came to this conclusion for the following reasons:
[TRANSLATION]
The tribunal is of the view that the appellant's argument that she was not separated from her husband Marcel Pesant must be accepted both in fact and in law. Section 17 of the OAS Regulations . . . which refers to paragraph 19(1)(a) of the OAS Act, provided that there should be reference to the law of the province in which the spouses had resided at the time of the separation: in Quebec, the Civil Code provides that a marriage is dissolved by a divorce decree or by the death of one of the spouses. A de facto separation has no effect on the obligations of the spouses; and once again no legal separation proceeding was initiated by either of the spouses in the instant case. In the tribunal's opinion, the appellant and her spouse have never been separated although for a time they have not lived under the same roof . . . The tribunal prefers to accept as authentic the appellant's statement that she began divorce proceedings in November or December 2000, which on the facts is corroborated by the divorce proceedings number indicating that the case was begun in the Superior Court in 2000 . . . Accordingly, in the tribunal's opinion it is only at this last date that the appellant and her husband Marcel Pesant began to be separated within the mean of the OAS Act.
APPLICABLE LEGISLATIVE PROVISIONS
[11] Under paragraphs 19(1)(a) and (b) of the Act, an allowance is paid to the spouse of a pensioner who applies therefor and who meets the following conditions, inter alia: "is not separated from the pensioner" and "has attained sixty years of age but has not attained sixty-five years of age" (my emphasis). Under subsection 19(5) of the Act, this allowance ceases to be paid when the pensioner's spouse "is separated from the pensioner".
[12] The circumstances in which a spouse is deemed to be separated from the pensioner for the purposes of paragraph 19(1)(a) and subsection 19(5) of the Act are set out in section 17 of the Old Age Security Regulations, C.R.C. c. 1246 (section repealed November 30, 2000 - the Regulations):
(a) the pensioner left the spouse in accordance with the law of the province in which the spouse and the pensioner have most recently resided together;
(b) the spouse left the pensioner in accordance with the law of the province in which the spouse and the pensioner have most recently resided together;
(c) the spouse and the pensioner are living separate and apart as a result of marriage breakdown;
(d) the spouse and the pensioner have been divorced and a decree absolute of divorce or a judgment of nullity of the marriage has been issued.
ANALYSIS
[13] Since the question is one of legislative interpretation, namely the interpretation of section 17 of the Regulations, the applicable standard of review is the correct decision: the tribunal must arrive at the right decision, otherwise its decision will have to be quashed and the matter referred back for hearing by a tribunal of different members (Canada (Minister of Human Resources Development) v. Skoric, [2000] 3 F.C. 265 (C.A.); Dowe v. Canada (Minister of Human Resources Development), 2001 FCA 284, [2001] F.C.J. No. 1486 (F.C.A.) (QL)).
Errors of law
[14] The tribunal erred in law because it concluded that the respondent and her spouse had not been separated without considering the possibility that the situation mentioned in paragraph 17(c) applies here, thus ignoring a situation covered by the Regulations.
[15] The decisive error of law made by the tribunal in the case at bar turns on the fact that the latter did not analyze the situation mentioned in paragraph 17(c) of the Regulations, which stipulates "the spouse and the pensioner are living separate and apart as a result of marriage breakdown". The tribunal should have analyzed the facts to see whether the respondent and Mr. Pesant were living separate and apart because of marriage breakdown. Where separation is at issue, it is important to note that paragraph 17(c) does not refer to any other legislation and accordingly the word "separate" must be given its ordinary meaning, that is, the fact of no longer living together. It seems clear to the Court that the respondent and her spouse separated in September 1998. The respondent herself indicated in her "Statutory Declaration - Separation of Legal Spouses . . ." that as of September 1998 she and her spouse were no longer living together. She repeated her statements in a letter dated September 22, 2001. This statement was corroborated by a questionnaire completed and signed by Mr. Pesant in November 2001. Finally, at no time in the hearing before the tribunal did the applicant deny that she had been living apart from her spouse since September 1998; nor did she deny that she had never resumed living with her spouse since that date. Even at the hearing in this Court, the respondent admitted she had been separated de facto from Mr. Pesant since September 1998. It was only in his "Application for Renewal of Guaranteed Income Supplement or Allowance" dated July 13, 2001, that Mr. Pesant stated he had been separated from the respondent since October 1, 2000. This may be explained by documents in the record indicating the respondent's undertaking to keep the peace (a promise made to a justice of the peace or a judge, November 3, 2000, 540-01-013892-008, Laval Judicial District, Province of Quebec).
[16] In short, it appears to the Court that the tribunal had sufficient facts before it indicating that the respondent and her spouse had stated they were separated in September 1998 for this to constitute a de facto separation during the relevant period in the case at bar, so that the tribunal at least had a duty to consider and thoroughly analyze the situation mentioned in paragraph 17(c) of the Regulations. In my view, the conclusion regarding breakdown of the marriage was established by the questionnaire completed by Mr. Pesant and the tribunal should have taken this into account.
[17] I therefore consider that there is an error of law here justifying the referral of this case back to a tribunal of different members.
[18] The tribunal also made an error of law when it used the date on which the respondent began divorce proceedings, namely around November or December 2000, as the date the spouses separated. The date on which someone institutes divorce proceedings is not one of the circumstances mentioned in section 17 of the Regulations. Paragraph 17(d) mentions a divorce decree as a circumstance which may support a conclusion that the spouses have been separated, not the initiating of proceedings leading to a possible divorce.
Interest
[19] I concur in the applicant's argument at paragraphs 41 to 48 of her memorandum disputing the following conclusion by the tribunal:
[TRANSLATION]
. . . any amount that may be owed to the appellant should be reimbursed to her with interest.
[20] The tribunal exceeded its jurisdiction and made another error of law. Under the applicable legislation, there is no statutory provision for the payment of interest. Earlier decisions by the courts have confirmed that there must be a provision to this effect or a contractual agreement, which is not the case here ([1948] S.C.R. 126">Canada v. Carroll, [1948] S.C.R. 126).
ORDER
THE COURT ORDERS that the application for judicial review be allowed and the matter referred back for re-hearing before a tribunal of different members, and that the latter shall take these reasons into account.
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"Michel Beaudry"
Judge
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Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1661-02
STYLE OF CAUSE: THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
v.
MONA NÉRON
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 10, 2003
REASONS FOR ORDER AND ORDER BY: The Honourable Mr. Justice Michel Beaudry
DATED: January 23, 2004
APPEARANCES:
Nathalie Archambault FOR THE APPLICANT
Mona Néron FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR THE APPLICANT
Deputy Attorney General of Canada
Montréal, Quebec
Mona Néron (for herself) FOR THE RESPONDENT
Sainte-Dorothée, Quebec
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