Wiemer v. Ganim, docket T-1121-95

     T-1121-95

IN THE MATTER OF Section 18.1 of theFederal

Court Act; and

IN THE MATTER OF a decision by the Acting Director General, Canada Pension Plan, Income Security Programs Branch.

Between:

     GERHARD WIEMER,

     Applicant,

     - and -

     WAYNE GANIM, in his capacity as Acting

     Director General, Canada Pensions Plan

     Income Security Programs, and DOROTHEA

     HILDEGARD KUKAT,

     Respondents.

     REASONS FOR ORDER

MULDOON, J.:

     The applicant applies for judicial review of the decision of Wayne Ganim, Acting Director General, Canada Pension Plan, Income Security Program, Department of Human Resources Development, made on April 21, 1995, and that it be set aside.

     That decision, a copy of which is found on pp. 51 and 52 of the applicant's record is curious in that it purports to be "further to [the applicant's] appeal to the Pension Appeal Board (PAB) in the matter of a division of Canada Pension Plan [CPP] unadjusted pensionable earnings, and the subsequent decision of the PAB dated June 24, 1994." After apologizing for the lapse of time, the respondent Ganim continued.

I would like to explain, first of all, that my position of Acting Director General, Canada Pension Plan, Income Security Programs Branch, Department of Human Resources Development, is the successor position to that of "Director General, Programs Operations, Income Security Programs Branch of the Department of National Health and Welfare". In occupying that position I have the delegated authority under the Canada Pension Plan Regulations to make a determination in your case as to whether or not a Division of Unadjusted Pensionable Earnings should be made.

I have reviewed the application and have considered all of the particular circumstances of this case "including the intentions of the parties in establishing their conjugal relationship, their intentions in terminating it, the nature of the agreement entered into and the degree of finality to the relationship which the parties intended". I have also considered all other facts contained within the file.

I have been further obliged to consider as part of my review the relevant legislative provisions and the intentions of Parliament in enacting those provisions.

Having reviewed all relevant circumstances, facts and law as outlined above, and having given due consideration to all of them, I must inform you that it is my decision that the application for a Division of Unadjusted Pensionable Earnings submitted by your former spouse is approved. I am satisfied that the application meets the legislative and regulatory requirements for its approval and that all other factors that I have considered do not compel me to deny the application.

We will report the outcome of our review to the Pension Appeals Board so that they may take the necessary steps to dispose of your appeal in a final manner.

     The application herein is based on the following stated grounds:

1.      Wayne Ganim, Acting Director General, Canada Pension Plan, Income Security Programs (Mr. Ganim) had no jurisdiction to make the decision referred to in his letter dated April 21, 1995, in that the Applicant's appeal of the division of his pension benefits was decided by the Pensions Appeals Board on June 24, 1994.

2.      In the alternative to paragraph 1 hereof, Mr. Ganim, in making his decision, erred in law in the following respects:

a)      In failing to observe a principal of natural justice in that the Applicant was not provided with the opportunity to be heard or to make submissions with respect to the Respondent's review of Dorothea Hildegard Kukat's unsuccessful application for a Division of Unadjusted Pensionable Earnings of the Applicant's pension

b)      In basing his decision on an erroneous finding of fact without regard for the material before him, in particular, the Separation Agreement, which Dorothea Hildegard Kukat and Gerhard Wiemer intended would deal with all outstanding matters between them, including matters relating to their respective pensions.

c)      In proceeding to divide the pension benefits of the Applicant in circumstances where there was no such application before him.

     The application is supported by the affidavit of Mary Ann Russell which provides the documentation.

     The applicant, Mr. Weimer, and Ms. Kukat, the second named respondent cohabited together in a conjugal relationship from July 28, 1973 until their separation on November 3, 1990. On April 8, 1992, a separation agreement was negotiated. Mr. Weimer paid Ms. Kukat $167,000.00. In exchange, Ms. Kukat agreed to

remise, release and forever discharge Gerry [the applicant] from all and any claims relating to those enumerated...and needs for support, maintenance, alimony....and undertakes not to commence or prosecute any action or other actions for the sharing of Gerry's assets, support...in the future.

(Application Record, p. 61).

On May 21, 1992, Ms. Kukat applied for a Division of Unadjusted Pensionable Earnings under the Canada Pension Plan, R.S.C. 1985, Chap. C-8 (Act or CPP).

     In June, 1992 Mr. Wiemer received a letter advising him that Ms. Kukat was eligible for the division of their pension credits (applicant's record, p. 66). The applicant appealed this to the Minister on the grounds that there should be no division because of the terms of the separation agreement. This appeal was denied by letter of September 2, 1992 (applicant's record, p. 69). He then requested that the Minister reconsider the decision, a request denied on February 18, 1993. The applicant appealed the Minister's decision to the Canadian Pension Plan Review Tribunal. The tribunal rejected the appeal on July 22, 1993 (applicant's record, p. 74). The applicant then applied for leave to appeal to the Pensions Appeal Board (PAB), which was granted.

     The PAB, of course, took note of the relevant law, as expressed in the CPP Act:

55.1 (1) Subject to this section and sections 55.2 and 55.3, a division of unadjusted pensionable earnings shall take place in the following circumstances:

(a) * * *

(b) * * *

(c) following the approval by the Minister of an application made by or on behalf of either former spouse, within the meaning of subparagraph (a)(ii) of the definition "spouse" in subsection 2 (1), or his estate, if

(i) the former spouses have been living separate and apart for a period of one year or more, or

(ii) * * *

and the application is made within four years after the day on which the former spouses commenced to live separate and apart.

* * *

(5) Before a division of unadjusted pensionable earnings is made under this section, or within the prescribed time period after such a division has been made, the Minister may refuse to make the division or may cancel the division, as the case may be, if he is satisfed that the division would be, or is, as the case may be, to the detriment of both spouses for former spouses.

55.2 (1) in this section, "spousal agreement" means

(a) * * *

(b) an agreement between spouses or former spouses, including a separation agreement, entered into

(i) before the day of any application made under section 55 or 55.1, or

(ii) * * *

(2) Except as provided in subsection (3), where a spousal agreement was entered into or a court order was made on or after June 4, 1986, the provisions of that spousal agreement or court order are not binding on the Minister for the purposes of a division of unadjusted pensionable earnings under section 55 or 55.1.

(3) Where

(a) a spousal agreement entered into on or after June 4, 1986 contains a provision that expressly mentions this Act and indicates the intention of the spouses or former spouses that there be no division of unadjusted pensionable earnings under section 55 or 55.1,

(b) that provision of the spousal agreement is expressly permitted under the provincial law that governs the spousal agreement, and

(c) that provision of the spousal agreement has not been invalidated by a court order,

     The powers of disposition of the tribunals, including the PAB, whereby the division of the CPP may be determined are found, in part, in the following provisions of the Act:

82. (1) A spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse who is dissatisfied with a decision of the Minister made under section 81 or subsection 84 (2) or, subject to the regulations, any person on behalf thereof, may appeal the decision to a Review Tribunal in writing within ninety days after the day on which the spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse is notified in the prescribed manner of the decision, or within such longer period as the Commissioner of Review Tribunals may either before or after the expiration of those ninety days allow.

* * *

(11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84 (2) and may take any action in relation thereto that might have been taken by the Minister under that section or subsection, and the Commissioner of Review Tribunals shall thereupon notify in writing the Minister and the other parties to the appeal of the Review Tribunal's decision and of its reasons therefor.

83. (1) A spouse, former spouse, estate, applicant, beneficiary or beneficiary's spouse or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82 or subsection 84 (2), may, within ninety days after the day on which that decision is communicated to the spouse, former spouse, estate, applicant, beneficiary, beneficiary's spouse or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pensions Appeal Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board.

* * *

(11) The Pensions Appeal Board may confirm or vary a decision of a review Tribunal under section 82 or subsection 84 (2) and may take any action in relation thereto that might have been taken by the Review Tribunal under section 82 or subsection 84 (2), and shall thereupon notify in writing the parties to the appeal of its decision and of its reasons therefor.

84. (1) A Review Tribunal and the Pension Appeals Board have authority to determine any question of law or fact as to

(a) whether any benefit is payable to a person,

(b) the amount of any such benefit,

(c) whether any person is eligible for a division of unadjusted pensionable earnings,

(d) the amount of that division,

* * *

and the decision of a Review Tribunal, except as provided in this Act, or the decision of the Pension Appeals Board, except for judicial review under the Federal Court Act, as the case may be, is final and binding for all purposes of this Act.

     Now, the Federal Court Act has always contained a provision (subsection 28 (3), today) which exacts that where the Court of Appeal has jurisdiction in any matter, then the Trial Division correspondingly lacks jurisdiction in that matter.

Pertinent here is the provision of paragraph 28 (1) (d), thus:

28. (1) The Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals:

* * *

(d) the Pension Appeals Board established by the Canada Pension Plan.

     The Trial Division obviously must not, and must not purport to, perform judicial review in respect of the PAB.

     Here, the applicant does not ask this Court to review the PAB's decision of June 24, 1994. Indeed the applicant was accorded the benefit of that decision insofar as it conformed with the PAB's statutory jurisdiction above recited, to "confirm or vary a decision of [the] review tribunal under section 81 or subsection 84 (2) and may take any action in relation thereto that might have been taken by the review tribunal * * *, and its decision is final and binding for all purposes of this Act." The circumstances here are delicate and cry out to be properly sorted, but exceeding this Court's jurisdiction in the attempt will not advance the cause of law or of justice.

     The respondent's counsels both urge the Court to dismiss the application for want of jurisdiction pursuant to subsections 28 (1) (d) and (3) of the Federal Court Act, and because, they argue, the applicant has not pursued the provided path for relief, as stated by the Supreme Court of Canada in Harelkin v. University of Regina [1979] 2 S.C.R. 561">[1979] 2 S.C.R. 561 at pp. 574-80. There would be merit to these arguments if the Court were being asked for judicial review of the PAB's decision, but it is not so asked. The applicant seeks judicial review of Wayne Ganim's decision and he and it are not immunized from Trial Division review pursuant to paragraph 28 (1) (d) and subsection 28 (3) in favour of the Appeal Division, or by any other provision of the constituent Act.

     It is a delicate situation because the PAB incited Mr. Ganim to interject himself as the Minister's delegate, again, after the PAB had varied the Minister's decision in a manner wholly satisfactory to the applicant. The applicant would never seek to set aside the PAB's decision to quash the Minister's decision which divided his pension. The very words of the decision, dated June 27, 1994, are (with the quaint old verb form persisting)

THIS BOARD DOTH ORDER AND ADJUDGE that this appeal be and the same is allowed, that the decision of the said Review Tribunal dated the 17th day of June, 1993, be and the same is quashed, and that the matter be referred back to the Minister for consideration.

(applicant's record, p.p. 43 & 44)

    

     It was this reference back which incited Wayne Ganim to render a superfluous decision contrary to the Board's expressed reasons.

     Those reasons, although they are not the decision itself, are important. Be it remembered that the PAB's proceedings were the ultimate appeal (through certain other levels) from the Minister's decision to divide the applicant's pension in the first place. One wonders why the PAB, whose powers are as set out in the statutory passages above recited, purported to refer "the matter" back to the Minister for yet more "consideration". Here is what the PAB wrote:

Counsel for Mr. Weimer does not dispute the position of the Minister with respect to the provisions of the Act, but he maintains that because the law requires the application to be approved by the Minister or his delegate, such approval requires a decision on the merits.

There is no doubt that where the conditions set out in subsection 55.2 (3) of the Act are satisfied, the spousal agreement is binding on the Minister. However, where the agreement is not binding on the Minister, it does not imply that its provisions should be disregarded. On the contrary, it is when a case falls between the mandatory division [subsection 55. 1 (1)] and the binding separation agreement [subsection 55.2] that the Minister or his delegate must exercise his discretion and decide whether or not to approve the application.

The decision should be based on the particular circumstances of the case including the intentions of the parties in establishing their conjugal relationship, their intentions in terminating it, the nature of any agreement entered into and the degree of finality to the relationship which the parties intended. I am sure there will be other considerations, but in the end, the decision would be based on the merits of each case.

In the present instance, it seems to me that the Minister was of the view that since he was not bound by the spousal agreement, he had no choice but to allow the division, as if it was mandatory. This is evident from the words in a letter on behalf of the Minister dated February 18, 1993, to counsel for Mr. Weimer denying an appeal from the decision to divide his pension credits. The letter says at the outset of paragraph 3:

in prescribed circumstances, a division may be granted without regard to the terms of separation agreements...

(emphasis added)

and goes on to state that:

...the Separation Agreement (sections 2, 5 and 6) is not binding on the Minister. Accordingly, the appeal has been denied.

(emphasis added)

That was certainly the approach taken by the Review Tribunal as well. It identified the "narrow question" as whether the Minister was bound by the agreement. Since he was not, he had to divide the pension earnings. In doing so, the Review Tribunal overlooked the fact that not being bound by an agreement does not mean that the agreement should not be given due consideration.

For these reasons, I would allow the appeal and refer the matter back to the Minister or his delegate to decide whether to approve the application of Ms. Kukat after giving due consideration to all the circumstances and merits of this case, including the spousal agreement and the intentions of the parties.

     Now, if the PAB had referred the matter back to the Minister with appropriate directions to make the decision in accordance with the reasons which the Pensions Appeal Board was then rendering, Mr. Ganim might not have been incited to make a decision contrary to that of the Board. Such a power and disposition are indicated in paragraph 18. 1 (3) (b) of the Federal Court Act. While the PAB here was composed of superior Court judges, it is not a superior Court: it is a federal tribunal within the meaning of the Federal Court Act's section 2. So having indirectly but effectively quashed the Minister's decision, why did the PAB refer the question of pension division back to the Minister, when it had no power to direct the Minister according to law as the PAB found to be applicable? Those are questions which might be asked by a judicial authority performing judicial review of the PAB's decision, that which this Court is not asked to do, and is not empowered to do.

     Returning to the PAB's decision, as distinct from its reasons, the applicant's counsel argues that the words "and that the matter be referred back to the Minister for consideration." are rendundant and clearly beyond the PAB's statutory power. Strictly, PAB makes its dispositions in its orders, not its reasons. Counsel asserts that the purported reference back is so abundantly clearly beyond the PAB's jurisdiction that it can be ignored as a nullity without the necessity of any judicial review. That is not such a stark or alarming statement as it would be if the PAB were a superior Court, which it is not. It has no inherent power and referring a matter back to the Minister for another consideration just after the PAB found the Minister's original consideration, upheld by the review tribunal, to have been quite wrong, is not to be found among the PAB's statutory powers.

     Now, under subsection 82 (11) the review tribunal "may take any action . . . that might have been taken by the Minister", and under subsection 83 (11) the Pensions Appeal Board" may take any action.. . .that might have been taken by the review tribunal under section 82", it is clear that the PAB was empowered to take any action which the Minister could have taken. The Minister could either allow or refuse the division of the applicant's pension, and the PAB quashed the review tribunal's affirmation of the Minister's allowance of the division, because the Minister ignored the separation agreement's utterly absolute, eternal discharge of the applicant from all and any of Ms. Kukat's claims, upon his having paid her $167,000.00. This is all abundantly clear.

     It surely appears from the grant of statutory powers that reference back to the Minister, (so that his delegate could oppose the PAB's otherwise well-reasoned quashing, in effect, of the Minister's initial decision), is not among those powers. Is this too so clear that the reference by a statutory tribunal can be just ignored as a nullity because it is clearly not now and never was clothed with statutory validity?

     The applicant's counsel referred to some trenchant jurisprudence. Volhoffer v. Volhoffer [1925] 2 WWR 304 (Sask. C/A.), asks at p. 308:

The local Master having no jurisdiction to make the order, a question arises as to whether or not it had any effect. Should the order be treated as a nullity, or should it be treated as as a valid and subsisting order until it is discharged on appeal?

In the case of In re Sproule, 12 S.C.R. 140, Taschereau, J., at p. 242, said:

Where, as here, a judge having a limited jurisdiction exercises a jurisdiction which does not belong to him, his decision or his acts, amount to nothing and do not create any necessity for an appeal.

For this proposition the learned Judge quoted as authority the case of Atty.-Gen. v. Hotham, Turn. & R. 209 (37 E.R. 1077, at p. 1081) affirmed on appeal 3 Russ. 415 (38 E.R. 631) where, at p. 632, the Lord Chancellor said:

The commissioners, under the inclosure act having no jurisdiciton to determine with respect to the title of lands in question, their decision was a nullity.

(p. 308)

* * *

There follows cited authority for differentiating the orders of a superior Court which must be set aside on appeal, from the orders of an inferior tribunal, such as the PAB is, whose orders in excess of jurisdiction are ignorable nullities. The Volhoffer reasons continue with consideration of the operations of the Saskatchewan Act and Rules and their specific applications, but there is a fine statement of the principle which applies here:

But where the tribunal has not been given any jurisdiction over the subject-matter, no matter what state of facts may exist, an order made in respect of it is a nullity and need not be appealed against, and its invalidity may be set up as an answer in any proceedings taken under it.

(p. 309)

     Inevitably, when a tribunal of precisely described and limited statutory jurisdiction makes an order or award outside of, that is, beyond the statutory grant of jurisdiction, its order or award to that extent will be quashed (Re. Pacific Petroleum Limited (1957) 23 WWR 1), or such order or award, if utterly obvious on the face of the record, may simply be ignored without having to seek a judicial remedy to quash, set side or appeal against such impugned order or award.

     The latter proposition was recently taken to be regular and affirmed by the unanimous decision of the Manitoba Court of Appeal in Radlinsky v. Local 511. . .of the Sheet Metal Workers' International Association and The Manitoba Labour Board, AI 95-30-02493 (February 13, 1966). Here is what Mr. Justice Twaddle wrote for the Court:

The applicant and his co-employee made several applications to the [Manitoba Labour] Board for an order terminating the Union's bargaining rights. The last of these applications was dismissed by order dated December 21, 1994. The applicant and his co-employee sought a Board review of that order. A review was denied by order dated March 15, 1995. The applicant and his co-employee then sought a judicial review on a multiplicity of grounds.

The application for judicial review was partly heard in June, 1995, but adjourned for further argument in the fall. In the meantime, it came to the attention of the industrial consultant who had represented the applicant and his co-employee before the Board that there had been a communication between a member of the panel which heard the application and counsel for the Union during the period when the Board's decision was under consideration. He drew this fact to the attention of the Board's chairperson who had not been a member of the original panel.

The chairperson convened a meeting to which the industrial consultant and counsel for the Union were invited. Following that meeting, the chairperson issued an order purporting to be made by him as a panel of the Board. By that order, the chairperson purported to rescind the previous Board order dismissing the application which the applicant and his co-employee had made.

When the matter came back on for hearing in the Court of Queen's Bench, Morse J. dismissed the application on the ground that, in light of the rescinding order, there was no order to review. He also held that, as no Board review of the chairperson's order had been sought, it was not open to the applicant to challenge the validity of the rescinding order.

In arguing his appeal from the denial of his application, the applicant contends that the rescinding order is a nullity and that, as such, it need not first be reviewed by the Board. I accept that contention. Section 143 (6) of The Labour Relations Act, R.S.M. 1987, c. L10, which mandates a request for a review as a condition precedent to a judicial review, applies, in my opinion, only to a final disposition of the Board which, but for some irregularity, would have been one within its jurisdiciton. If the rescinding order here was not one which the chairperson could make, even as a panel of the Board, its invalidity arises not from an irregularity, but from the total lack of authority vested in one panel to rescind the order of another.

A case such as this is to be distinguished from one in which a panel of the Board hears a matter within its jurisdiction and then makes an order which, allegedly, is beyond it. In that circumstance, it may well be that a judicial review can only be sought after a Board review has been held or at least requested. In this case, the chairperson either had or had not the power to rescind the earlier order. If he lacked the power even to consider the question, the order which he made was a nullity from the outset. In my view, an order made in such circumstances is not an order at all. It can simply be ignored.

(typescript - unreported)

     It appears clearly in the cited provisions of the CPP that referring a matter back to the Minister or his wilful delegate after having found that the Minister's original consideration of it was wrong and quashing the review tribunal's decision which upheld the Minister's wrong decision is not among the PAB's powers, and cannot be casually or arbitrarily inferred. Why? Because Parliament simply declined to grant to the PAB that power, of the very kind noted in section 18.1 of the Federal Court Act. Moreover, if such a power were to be granted to the PAB, it would surely be a power to refer the matter back to the review tribunal for disposition, inevitably in accordance with the law as declared by the PAB. It was the whole foundation of the PAB's decision to quash the review tribunal's disposition that Ms. Kukat had agreed to release the applicant absolutely from all claims of any and every kind, in consideration of his paying her $167,000.00. That, clearly is what struck the PAB's sensitivities and notions of where justice lay, and how the CPP was being misinterpreted.

    

     The reference back appears plainly, clearly to be one of those obvious excesses of jurisdiciton which can just be ignored without judicial review proceedings. Therefore, this Court's merely noticing it, surely cannot be construed as this Court's performing judicial review which is reserved uniquely for the Appeal Division.

     There are two good reasons why Minister's Delegate Ganim's decision, which is susceptible to this Court's review, cannot stand.

     In the first place, there is and was no lawful basis for his intervention into this matter. He was not compelled by the PAB to interfere, for the PAB has no lawful authority to compel either Minister or delegate to do anything outside of, or beyond, the PAB's statutory powers. If the PAB's decision be, and it is by law, final and binding, Mr. Ganim's intrusion would, in effect, badly dilute the finality of the PAB's decided disposition of the matters in issues before it. Counsel for the respondent Ms. Kukat at the hearing of this case was "not sure that the wording of the statute is as crystal clear in that regard as we would like". (transcript, p. 85). Indeed, it is, alas for that contention, crystal clear that Mr. Ganim had no lawful authority for his intrusive, counter-productive decision.

     So that is count one: the impugned decision was unlawful, having no legal basis or authority. This is one cogent reason for quashing it.

     In the second place, it was made in violation of the principle of natural or fundamental justice. It will be recalled that Mr. Ganim began his decision by apologizing for the lapse in delivering it. At no time during those months did the Minister's delegate ever call for submissions on behalf of the applicant. Despite thorough adversarial hearings by the review tribunal and the PAB, the Minister's delegate evidently believed that he alone, without hearing from the contending

parties - especially the applicant - could adjudicate this serious, contentious matter all on his own. It may be that the Minister's original decision is of such a low-level administrative function that submissions are not required, but after conflicting decisions emanating from the review tribunal and the Pension Appeals Board, consideration on the merits by Mr. Ganim clearly called for submissions from the parties, not just his own divination of the matter no matter what his recitation in his decision of what he had considered.

     So, Mr. Ganim, the Minister's delegate acted not only tardily (for which he apologized) but also arbitrarily, despite having taken enough time to receive and consider the parties' submissions. For that reason, too, his decision of April 21, 1995, even if it had a lawful basis, must be quashed for failure of fundamental justice.

     There is a third reason to quash Mr. Ganim's decision. It appears to have been formulated without regard to the material before him, although he recited all he considered including the separation agreement. What did he make, then, of Ms. Kukat's absolute release of the applicant from any and all of her claims in exchange for his paying her $167,000.00? Did he regard that as mere empty words without connexion to the parties' intentions or to reality? Could he believe that such a quid pro quo operated against Ms. Kukat's interests, and if so, how? Up to now Ms. Kukat has been receiving a share of the applicant's CPP even although she agreed, with her solicitor's advice, to release him from any and all claims. So, a third reason for quashing the decision, if it were an authentically lawful one, is failure to have regard for the material before the Minister's delegate. That absolute release for compensation was a salient point and Mr. Ganim never indicated why he ultimately accorded insufficient importance to it.

     A final point against the validity of the impugned decision of April 21, 1995 is that having rendered his initial decision to permit division of the applicant's pension, the Minister, and that includes the Minister's delegate, is simply functus officio, and simply cannot second-guess the PAB's final and binding decision. Also to the point is that the Minister or the Minister's delegate cannot make a second decision in order to shore-up if the Minister's original decision in the same matter. The conseuqence of violating the principle of functus officio in that manner, would surely be to permit the applicant to start up again the whole sequence of appeals leading to the review tribunal and the PAB. However, except for the extraneous reference back to the Minister, which everyone ought to have ignored, the PAB awarded the applicant what he wanted, and for the right reasons: it quashed the Minister's original decision which had been upheld by the review tribunal. That is why the applicant was correct in not commencing judicial review proceedings against the PAB's decision, which he has not done and which this Court does not purport to undertake.

     In avoidance of seeming be performing judicial review, forbidden to the Trial Division in regard to the Pension Appeals Board, it should be stated that the CPP has no provision which allows the Minister, once he has made an original decision in a case to receive its reference back and to reconsider the decision, even if directed to do so by the PAB. This is clearly beyond the Minister's statutory powers. The PAB delegated its decision-making authority to the Minister, here the Minister's delegate Ganim, a procedure not contemplated by the legislation.

     On the principle of functus officio one may note the majority decision of the Supreme Court of Canada in Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848.

. . . that decision cannot be revisited because the tribunal [ie the Minister] has changed its mind, made an error within jurisdiction or because there has been a change circumstances. It can do so only if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.

(p. 861)

     So the Minister would have to have been authorized by statute in order lawfully to reconsider the original decision. That is not the case. The Minister is functus, but the PAB is still seized with its case in terms of section 84 (1) (c), at least.

     For all of the foregoing reasons this Court quashes and sets aside the impugned decision of Wayne Ganim made on April 21, 1995.

     "F. C. Muldoon"

     Judge

Calgary, Alberta

November, 8, 1996

     T-1121-95

IN THE MATTER OF Section 18.1 of theFederal Court Act; and

IN THE MATTER OF a decision by the Acting Director General, Canada Pension Plan, Income Security Programs Branch.

Between:

     GERHARD WIEMER,

     Applicant,

     - and -

     WAYNE GANIM, in his capacity as Acting

     Director General, Canada Pensions Plan

     Income Security Programs, and DOROTHEA

     HILDEGARD KUKAT,

     Respondents.

==========================================

     REASONS FOR ORDER

==========================================

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:      T-1121-95

STYLE OF CAUSE:      GERHARD WIEMER v. WAYNE GANIM,

                 in his capacity as Acting Director General,

                 Canada Pensions Plan Income Security

                 Programs and Dorothea Hildegard Kukat

PLACE OF HEARING:      Winnipeg, Manitoba

DATE OF HEARING:      May 27, 1996     

REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MULDOON

DATED:              Friday, November 8, 1996

APPEARANCES:

     Sidney Green, Q.C.     

     Marla Altman      for the Applicant

    

     Christopher Mainella                      for the Respondent

     Wayne Ganim

     Donald George      for the Respondent

     Winnipeg, Manitoba      Dorothea Hildegard Kukat

SOLICITORS OF RECORD:

    

     Sidney Green, Q.C.

     Winnipeg, Manitoba      for the Applicant

     George Thomson

     Deputy Attorney General     

     of Canada      for the Respondent

     Ottawa, Ontario      Wayne Ganim

     Swystun, Karasevich, Windsor      for the Respondent

     Winnipeg, Manitoba      Dorothea Hildegard Kukat