Date: 20100205
Docket: T-783-09
Citation:
2010 FC 121
Montréal, Quebec, February 5, 2010
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
NORMAND
FRANCOEUR
Applicant
and
THE
TREASURY BOARD OF CANADA
and
THE ATTORNEY
GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 18.1(4) of the Federal
Courts Act, R.S.C. 1985, c. F-7, of a decision by Public Works and
Government Services Canada (PWGSC) to reduce the superannuation of Normand
Francoeur (applicant) under subsection 11(2) of the Public Service Superannuation
Act, R.S.C. 1985, c. P-36 (PSSA), and of subsequent letters sent to the
applicant by the PWGSC and the President of the Treasury Board of Canada.
FACTS
[2]
The
applicant was the victim of an automobile accident in 2003. The resulting
disability forced him to retire from the Public Service of Canada on April 13,
2007.
[3]
On July
18, 2007, the PWGSC informed him of his entitlement to superannuation of
$1,091.79 per month.
[4]
On August
7, 2008, the PWGSC found out that, since June 2003, the applicant had been
eligible for a disability pension of $941.06 per month under the Act
respecting the Québec Pension Plan, R.S.Q. c. R-9 (QPP pension). However,
since the applicant’s disability resulted from an automobile accident, the
Société de l’assurance automobile du Québec (SAAQ) was already paying him an
indemnity that was more than the QPP pension. That is why the latter was paid
to the SAAQ, as a partial offset of the indemnity it was paying to the
applicant, rather than directly to the applicant.
[5]
A PWGSC
pension officer informed the applicant, by letter dated December 28, 2008, that
his superannuation would be reduced retroactively as of the date of his
retirement because he had been eligible for the QPP pension even before that
date. The applicant’s basic superannuation was adjusted to $766.06 per month. The
PWGSC also sought from the applicant reimbursement of a total overpayment of
$7,093.14.
[6]
On January
6, 2009, the applicant sent a letter to the PWGSC, appealing the reduction of
his superannuation. The applicant stressed the precariousness of his financial
situation and the fact that, since the QPP pension was paid entirely to the SAAQ,
he did not benefit from it in any way.
[7]
The PWGSC
replied to the applicant by a letter dated February 16, 2009, explaining that
his superannuation had been reduced in accordance with subsection 11(2) of the PSSA,
and that the payment of the QPP pension to the SAAQ did not change the fact
that he was eligible for it. The PWGSC therefore upheld its decision, but
stated that it was willing to consider a reduced rate of reimbursement to
accommodate the applicant’s financial situation.
[8]
On
February 20, 2009, the applicant sent a letter to the President of the Treasury
Board of Canada. In a letter dated April 21, 2009, the President explained that
the applicant’s superannuation had been reduced in accordance with paragraph
11(2)(b)of the PSSA because he was eligible for the QPP pension paid
through the Société de l’assurance automobile du Québec. He added that
[TRANSLATION] “as sponsor of the superannuation plan”, the government was
required to apply the PSSA uniformly and that, [TRANSLATION] “even in exigent
circumstances, it is not possible to grant an exemption from the requirements
of the Act”.
[9]
After
receiving this letter, the applicant filed an application for judicial review
of this decision.
STATUTORY FRAMEWORK
[10]
The PSSA
governs the superannuation plan of members of the Public Service of Canada. Superannuation
is payable, for example, on the death or retirement of a plan member. The President
of the Treasury Board is responsible for the application of the PSSA, but
administration of the plan is delegated to the PWGSC under section 13 of the Department
of Public Works and Government Services Act, S.C. 1996, c. 16.
[11]
Moreover,
like all Canadian workers, members of the Public Service of Canada must
contribute, depending on their place of residence, either to the Canada Pension
Plan or to a similar provincial plan, such as the Quebec Pension Plan (QPP),
which in fact is the only existing provincial plan. Since the applicant is a
resident of Quebec, he contributed to the QPP.
[12]
The superannuation
plan established by the PSSA is harmonized with the QPP. Subsection 11(1) of
the PSSA provides for the payment of superannuation in accordance with a
certain formula. However, subsection 11(2) provides as follows :
Notwithstanding subsection
(1), unless the Minister is satisfied that a contributor
(a) has not reached the
age of sixty-five years, and
(b) has not become
entitled to a disability pension payable under paragraph 44(1)(b) of the
Canada Pension Plan or a provision of a provincial pension plan similar
to the Canada Pension Plan,
there shall be deducted from
the amount of any annuity to which that contributor is entitled under this Part
an amount [calculated according to a formula set out in subsections 11(2) and 11(2.1)].
Thus, the superannuation of a
retired public servant who is entitled to a disability pension under a
provincial plan such as the QPP will be reduced.
PRELIMINARY ISSUE
[13]
The
respondents contend that this application for judicial review should be
dismissed because it does not concern a “decision” within the meaning of
section 18.1 of the Federal Courts Act. In fact, the letter from the President
of the Treasury Board to which this application apparently pertains is seemingly
a courtesy letter, of an administrative nature only, merely confirming the
decision made on December 28, 2008. Since this letter does not set out either a
de novo exercise of discretion or a reconsideration of the previous
decision, it is not a decision. The respondents rely, inter alia, on
this Court’s decision in Moresby Explorers Ltd. v. Gwaii Haanas National
Park Reserve, [2000] F.C.J. No. 1944 (QL), in which Justice Pelletier ruled
that “correspondence [that] simply
shows persistent attempts to reverse a negative decision and a continuing
commitment to the original decision by the respondents” does not constitute a new
decision or a course of conduct.
[14]
According
to the respondents, the applicant should have applied for judicial review of
the initial decision dated December 28, 2008. However, he did not do so, and is
now out of time. The respondents add that the Court should not exercise its
discretionary power to extend the time to enable him to do so.
[15]
According
to the applicant, he is not, in fact, seeking judicial review of the decision
dated April 21, 2009, but rather of the reduction of his superannuation by the PWGSC,
as well as of the decision dated February 16, 2009. He denies being out of time,
but adds that, if he is, the Court should extend the time since the letters
sent to him did not explain the deadlines and procedures to be followed to
challenge the reduction of his superannuation, and that he believed in good
faith to have undertaken the appropriate procedures for doing so. He stresses
the fact that his application is serious.
[16]
I agree
with the respondents that, as presented, the application for judicial review
pertains to the letter of April 21, 2009, which is not a decision, but rather the
expression of what Justice Pelletier, in Moresby Explorers, above, had
described as the “continuing commitment to the original
decision by the respondents”.
[17]
However, I
granted at the hearing an extension of time in order to decide on the merits of
this application. In Canada (Attorney General)
v. Hennelly (1999), 244 N.R. 299, [1999] F.C.J. No. 846
(QL) (F.C.A.), at para. 3, the Federal Court of Appeal determined that the
proper test to be taken into account when examining such an application was the
continuing intention to pursue the application, the existence of some merit in the
application, the prejudice to the respondent arising from the delay and the
explanation for the delay.
[18]
In
the case at bar, the applicant, who is representing himself, has demonstrated
his continuing intention to challenge the reduction of his superannuation, and he
failed to submit an application for judicial review because he tried to do so
by other means which seemed more appropriate to him. I note that in his letter
of January 6, 2010, he said that he was [TRANSLATION] “appealing”
the PWGSC’s decision. In addition, the respondents, who made submissions on the
merits of the case, have not suffered any prejudice from the fact that the case
will be decided on its merits and not on a preliminary point. For that same
reason, dismissing the application for an extension of time because of the
weakness of its merits would not help the respondents because, in any case,
they would have already lost the time needed to defend themselves.
ANALYSIS
[19]
The issue
raised by this application for judicial review is whether the PWGSC erred in
reducing the applicant’s superannuation and in seeking reimbursement of the
overpayment on the grounds that the applicant was entitled to a provincial
disability pension, namely, the QPP.
[20]
I agree
with the respondents that it is a question of mixed fact and law, since it
involves interpreting paragraph 11(2)(b) of the PSSA while applying it
to the applicant’s specific situation. Therefore, the applicable standard of
review is reasonableness.
[21]
The
applicant contends that subsection 11(2) of the PSSA does not apply to him
because he is not yet 65, because the QPP pension is not a [TRANSLATION] “regular
annuity” of the Quebec Pension Plan, and because he does not receive it as it
is paid to the SAAQ.
[22]
According
to him, the reduction of his superannuation is abusive, because he does not
benefit in any way from the QPP pension, which is paid to the SAAQ. He argues
that this reduction amounts to deductions totalling more than 130% within a
single plan, whereas there is no legal system anywhere in Canada that allows for coordination
and offset of more than 100%. He also stresses that the reduction of his superannuation
has caused him irreparable damage and serious economic and moral harm.
[23]
The
respondents argue that, although the QPP pension is not paid to the applicant,
he is still eligible for it, and that paragraph 11(2)(b) of the PSSA
therefore applies to him. According to them, the Act respecting the Québec
Pension Plan (AQPP) harmonizes the SAAQ income replacement indemnity and
the QPP disability pension of a person who is potentially eligible for both.
[24]
The first
paragraph of section 105.1 of the AQPP provides as follows:
…a disability pension shall be
payable to a contributor for a disability resulting from an accident within the
meaning of the Automobile Insurance Act (chapter A-25) only if the amount of
income replacement indemnity to which the contributor is entitled under that
Act is less than the amount of disability pension that would otherwise be
payable to him. The amount of the pension shall, in such a case, correspond to
the difference between the amount of disability pension otherwise payable and
the amount of the income replacement indemnity….
However, the second paragraph
of that section specifies that “[e]ven if the contributor's disability pension
is reduced or no pension is payable to him, the other provisions of this Act
remain applicable in respect of the contributor as if the pension to which he
would have otherwise been entitled were payable to him…”.
[25]
Moreover,
section 180.3 of the AQPP provides that the Régie des rentes du Québec “pay[s]
to the Société de l'assurance automobile du Québec, on a monthly basis, a total
amount corresponding to the amounts of disability pension which, by reason of
section 105.1, cannot be paid to the contributors referred to in that section”.
[26]
The
respondents note that the Régie des rentes du Québec informed the applicant, by
letter dated July 8, 2008, that he was entitled to a disability pension of
$941.06 per month, but that this pension would not be payable to him because he
was already receiving an indemnity from the SAAQ. The payment of this pension
to the SAAQ rather than to the applicant is a result of sections 105.1 and
180.3 of the AQPP.
[27]
According
to the respondents, the Quebec legislator wanted to prevent
a person from receiving compensation from the SAAQ and a disability pension
from the QPP for the same disability. Similarly, it would be contrary to the
objective of Parliament for a person to receive his or her full superannuation and
a disability pension, in the interests of fairness to all contributors to the Public
Service Superannuation Plan. Regardless of the arrangements made between the
SAAQ and the Régie des rentes du Québec to harmonize the payment of disability
benefits in Quebec following an automobile accident, the fact remains that
federal legislation must be applied in accordance with its purpose. I concur.
[28]
In fact,
although the amount of the QPP pension is not paid to the applicant, it cannot
be said that he is not eligible for it within the meaning of paragraph 11(2)(b)
of the PSSA.
[29]
Unfortunately
for Mr. Francoeur, the arrangements made by the Quebec legislator are not subject to federal
authority. The Quebec legislator could have made
other arrangements. For example, the QPP pension could have been paid directly
to the retired public servant, with the SAAQ indemnity reduced accordingly.
[30]
As for
paragraph 11(2)(b) of the PSSA, unless the applicant directly challenges
the constitutionality of this provision by means of the appropriate procedure,
the Court has no choice but to ensure that the PWGSC’s application of it is
reasonable. It is impossible for me to find in this case that it is not.
[31]
I
therefore find that the reduction of the applicant’s superannuation was not
only reasonable, but simply an inescapable consequence of the PSSA. It is
unfortunate that the applicant is in a financial situation that he claims is precarious,
but this fact alone does not allow the PWGSC or this Court to help him by
applying the PSSA in contravention of its unequivocal terms and without regard
for Parliament’s intention.
[32]
For
these reasons, this application for judicial review is dismissed, without
costs.
JUDGMENT
THE COURT ORDERS that:
the application for judicial review is
dismissed, without costs.
“Danièle
Tremblay-Lamer”
Certified
true translation
Susan
Deichert,
LLB
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