Docket: T-1419-11
Citation: 2012 FC 556
Ottawa, Ontario, May 9, 2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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DONNA MCLAUGHLIN
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review in respect of the decision of the Pension
Appeals Board [PAB or the Board], dated May 27, 2011, in which the PAB denied
the applicant leave to appeal the decision of the Review Tribunal [RT] to the
PAB. In its decision, the RT determined that the applicant was not entitled to
survivor benefits under the Canada Pension Plan, RSC 1985, c C-8 [CPP]
even though she was still married to Mr. McLaughlin at the time of his death,
because Mr. McLaughlin had cohabited with another woman, Diana Gunderman, for
more than a year prior to his death and, accordingly, Ms. Gunderman met the
definition of survivor under the CPP.
[2]
The
statutory provisions that govern this case are set out in the CPP. Paragraph
44(1)(d) of the CPP provides that a survivor's pension is payable
to the "survivor" of a deceased contributor. Subsection 42(1) of the
CPP defines a "survivor" as meaning:
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(a) if
there is no person described in paragraph (b), a person who was married to
the contributor at the time of the contributor’s death, or
(b) a
person who was the common-law partner of the contributor at the time of the
contributor’s death;
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a) à
défaut de la personne visée à l’alinéa b), de l’époux du cotisant au décès de
celui-ci;
b) du
conjoint de fait du cotisant au décès de celui-ci.
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"Common-law partner" is defined
in subsection 2(1) of the CPP as:
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… a
person who is cohabiting with the contributor in a conjugal relationship at
the relevant time, having so cohabited with the contributor for a continuous
period of at least one year. For greater certainty, in the case of a
contributor’s death, the “relevant time” means the time of the contributor’s
death.
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…La
personne qui, au moment considéré, vit avec un cotisant dans une relation
conjugale depuis au moins un an. Il est entendu que, dans le cas du décès du
cotisant, « moment considéré » s’entend du moment du décès.
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[3]
These
provisions create a presumption that the individual who is married to the contributor
at the time of his or her death is entitled to the survivor pension. This
presumption, however, is displaced where the contributor no longer cohabits
with the person to whom he or she is married and, instead, enters into a
conjugal relationship with a common-law partner. Where such relationship exists
for at least a year prior to the contributor's death, the statute provides that
survivor benefits are entirely payable to the common-law partner, regardless of
how long the contributor might have been married.
[4]
In
the present case, both the applicant and Ms. Gunderman made an application for
CPP survivor benefits. The Department of Human Resources and Skills Development
Canada [HRSDC], which administers the CPP, determined that Ms. Gunderman was
entitled to the survivor benefits because she met the definition of a
common-law partner contained in the CPP. The applicant appealed HRSDC's
decision to the RT, where she represented herself during the hearing. She
argued that as she was the contributor’s legal wife and supported their
children, she should be entitled to the benefits, especially because she
claimed that Ms. Gunderman had manipulated
Mr. McLaughlin and used the power of
attorney she possessed over his affairs to make decisions he would not have
countenanced, like making herself (Ms. Gunderman), as opposed to the children,
the beneficiary of his life insurance policy.
[5]
The
RT dismissed the applicant's appeal, determining that Ms. Gunderman met the
statutory definition of a common-law partner as she had cohabited with the
deceased for more than one year, was joint owner of their home, paid some of
the utility bills for the home, was listed in
Mr. McLaughlin’s tax return as his
common-law spouse, was involved in a sexual relationship with the deceased for
more than one year, and as the couple had given each other assistance,
communicated on a personal level and represented to the world that they were
common-law partners. In so doing, the RT applied the criteria for a conjugal
relationship set out in the leading decision on the point: Canada (Minister of
Social Development) v Pratt, 2006 CP 22323 (PAB), 2006 LNCPEN 5 [Pratt].
[6]
In
her application for leave to appeal to the PAB, the applicant raised the same
arguments she made before the RT and referred to (but did not file) an
affidavit from her nephew, Jason McLaughlin, which had been filed in an action
commenced in the Ontario Superior Court by the applicant, where, amongst other
things, she sought to set aside some of the decisions Ms. Gunderman had
made under the power of attorney. The PAB dismissed the application for leave,
holding that the applicant had “no arguable case to present on appeal” (at para
4 of the PAB's decision). In making its decision, the PAB referred to several
paragraphs in the RT's decision, where the salient facts were summarized.
[7]
The
parties have raised three issues in the present application for judicial
review:
1.
Should
large portions of the applicant's affidavit be struck as an improper attempt to
place evidence before the court that was not before the PAB?
2.
Did the
PAB fail to observe the requirements of natural justice in rendering inadequate
reasons? and
3.
Should the
PAB's decision be set aside as being unreasonable?
Each of these issues is examined below.
Should portions of the
affidavit be struck?
[8]
The
general rule, which has been qualified as “trite law”, is that an applicant on
judicial review can only rely on evidence that was before the decision-maker.
There are limited exceptions to this general principle, namely, where the
evidence is directed toward an alleged breach of natural justice or of the duty
of fairness, where the evidence is necessary to understand the scope of the
inferior tribunal’s jurisdiction or where the evidence merely provides
uncontroversial background facts for the assistance of the Court (see e.g. Ochapowace
Indian Band v Canada (Attorney General), 2007 FC 920 at para 9, 316
FTR 19; Bekker v Canada, 2004 FCA 186).
[9]
The
respondent argues that virtually all of the applicant's affidavit should be struck
because it contains material that was not before the PAB. In addition, the
respondent asserts that Jason McLaughlin’s affidavit, which is attached as an exhibit
to the applicant's affidavit, should be given virtually no weight because, as
an exhibit, its deponent could not be cross-examined, citing in this regard 594872
Ontario Inc v Her Majesty the Queen (No 2), [1992] 1 CTC 344, 92 DTC 6298,
at para 14. The applicant, on the other hand, argues that most of the facts
contained in
Ms. McLaughlin’s affidavit were also before
the PAB (albeit in a less eloquent form) through the applicant's written
submissions and that she referred to (but did not file) Jason McLaughlin’s affidavit
with the PAB. The applicant also asserts that many of the impugned paragraphs
in her affidavit are relevant to her natural justice argument.
[10]
In
my view, the applicant is correct in stating that many of the impugned
paragraphs in her affidavit contain information that was before the PAB. More
specifically, the facts set out in paragraphs 4-6, 9-12, 16, 17 and 19 of the
applicant's affidavit are all contained in the record that was before the PAB.
While the affidavit was prepared with the assistance of counsel and is
expressed in clearer and more convincing terms than the applicant's written
submissions to the PAB, the facts in these paragraphs were all before the PAB
and, accordingly, may be restated by the applicant in her affidavit. It is
arguable that the facts contained in paragraphs 18, 21 and 22 of the
applicant's affidavit relate to the applicant's natural justice argument and,
accordingly, are likewise properly before the Court. However, the facts (and
exhibits) referenced in paragraphs 13 through 15 of the applicant's affidavit
were not before the PAB and do not fall into one of the recognized exceptions
regarding the admission of new evidence on a judicial review application. The
fact that Ms. McLaughlin referred to Jason McLaughlin’s affidavit in her
comments to the PAB did not place that affidavit in evidence; as counsel for
the respondent properly noted, had Ms. McLaughlin tried to do so, the
respondent could have argued that the affidavit could not be filed as it could
not cross-examine the deponent. Accordingly, paragraphs 13 through 15 of the
applicant's affidavit will be struck. I would, however, note that even if the
evidence contained in these paragraphs were before the Court, it would have no
impact on the outcome of this judicial view application.
Did the PAB fail to
apply the principles of natural justice?
[11]
The
applicant's argument that the PAB violated the principles of natural justice in
failing to provide adequate reasons may be disposed of summarily in that the
Supreme Court of Canada has recently determined that the inadequacy of reasons
given by a tribunal does not give rise to breach of natural justice, provided
that some reasons are given. In this regard, in Newfoundland and Labrador
Nurses Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62,
[2011] 3 S.C.R. 708, Justice Abella, writing for a unanimous Court, stated at paragraphs
20 and 22:
Procedural fairness … can be easily disposed of here. Baker
stands for the proposition that “in certain circumstances”, the duty of
procedural fairness will require “some form of reasons” for a decision (para
43). It did not say that reasons were always required, and it did
not say that the quality of those reasons is a question of procedural
fairness.
[…]
It strikes me as an unhelpful elaboration on Baker to suggest
that alleged deficiencies or flaws in the reasons fall under the category of a
breach of the duty of procedural fairness and that they are subject to a
correctness review. …
It is true that the breach of a duty of procedural fairness is an error
in law. Where there are no reasons in circumstances where they are
required, there is nothing to review. But where, as here, there are
reasons, there is no such breach. Any challenge to the reasoning/result
of the decision should therefore be made within the reasonableness analysis.
[Emphasis added]
Should the PAB's decision be
set aside as being unreasonable?
[12]
The
parties agree that in reviewing the PAB’s decision, this Court must a) assess whether
the PAB applied the correct legal test in determining whether or not to grant
leave and b) assess whether its application of the test to the facts before it
was reasonable (citing Callihoo v Canada (Attorney General), [2000]
FCJ No 612, 190 FTR 114 at para 15 [Callihoo] and Farrell v Canada
(Attorney General), 2010 FC 34 at para 26, [2010] FCJ No 30 [Farrell]).
They also concur that the test to be applied by the PAB in deciding whether or
not to grant leave requires that it determine whether or not the applicant has
raised an arguable case or, to put the matter another way, has a reasonable
chance of success on the appeal (see Callihoo at para 15; Farrel
at para 26; Fancy v Canada (Minister of Social Development), 2010
FCA 63). Where they part company, though, is in the application of these
principles to the instant case.
[13]
The
applicant asserts that the PAB applied the incorrect test and that, as opposed
to evaluating the chances of success of an appeal, the Board incorrectly
focused on the merits of the proposed appeal and determined that it had no
chance of success. A review of the PAB’s decision reveals that this argument
is without merit. The PAB in fact determined that the applicant had “no
arguable case to present on appeal” in the final paragraph of its decision
(para 4 of the PAB’s decision). It thus applied the correct test.
[14]
As
concerns the reasonableness of the PAB's assessment of the merits of the
applicant's proposed appeal, the applicant asserts that she possessed an
arguable case that Ms. Gunderman did not meet the definition of a “common-law
partner”, within the meaning of the CPP, because Ms. Gunderman in effect
perpetrated a fraud upon Mr. McLaughlin, by taking advantage of him in his
dying days to change the beneficiaries under his life insurance policy, and by
making other decisions that were to her own financial benefit and to which he
would not have agreed. The applicant asserts in this regard that the PAB was
required to apply a multi-factored analysis in determining whether Ms.
Gunderman met the definition of a “common-law partner”, and that one of the
factors it ought to have considered was whether she had committed breaches of
trust or engaged in other wrongful conduct to the detriment of Mr. McLaughlin. Unsurprisingly,
the applicant was unable to cite any authority in support of this proposition.
[15]
In
essence, the applicant is requesting that a decision-maker evaluate the quality
of the relationship between two individuals to determine whether or not the
relationship should fall within the definition of a “common-law partnership”.
However, the case law interpreting the definition of a “common-law partner” in
the CPP (or in family law jurisprudence on the similar concept of “common-law
relationship”) does not contemplate an assessment of the type the applicant urges.
Indeed, this type of assessment would not be an appropriate inquiry for an administrative
adjudicator or a court and, accordingly, the applicable tests all involve
consideration of questions
of fact and intent to ascertain whether the parties live in a conjugal
relationship that is similar to marriage. Thus, in Pratt at para 42, the
Board reviewed the common-law jurisprudence and listed the following factors as
being indicative of a conjugal relationship:
1)
Shelter, including
considerations of whether the parties lived under the same roof, slept
together, and whether anyone else occupied or shared the available
accommodation;
2)
Sexual and
personal behaviour, including whether the parties have sexual relations,
maintain an attitude of fidelity to each other, communicate on a personal
level, eat together, assist each other with problems or during illness or buy
each other gifts;
3)
Services,
including the roles they played in preparation of meals, doing laundry,
shopping, conducting household maintenance and other domestic services;
4)
Social,
including whether they participated together or separately in neighbourhood and
community activities and their relationship with respect to each other's family
members;
5)
Societal,
including the attitude and conduct of the community towards each of them as a
couple;
6)
Support,
including the financial arrangements between the parties for provision of
necessaries and acquisition and ownership of property; and
7)
Attitude
and conduct concerning any children.
[16]
The
Supreme Court of Canada confirmed, in the family law context, that these are
the factors that ought to be used to test whether or not a common-law conjugal
relationship exists in M
v H, [1999] 2 S.C.R. 3, [1999] SCJ No 23 at para 59: “the generally accepted
characteristics of a conjugal relationship... include shared shelter, sexual
and personal behaviour, services, social activities, economic support and
children, as well as the societal perception of the couple.”
[17]
In
light of the foregoing, the PAB’s conclusion that the applicant had no arguable
case to present on appeal is certainly reasonable.
[18]
The
present application for judicial review, accordingly, must be dismissed.
Costs
[19]
The
respondent does not seek its costs in this matter, given the issues involved,
the very modest means of the applicant and the fact that counsel for the
applicant has acted on a pro bono basis. In the circumstances, no award
of costs is made.
JUDGMENT
THIS COURT’S JUDGMENT is
that:
1.
Paragraphs
13, 14 and 15 of the applicant's affidavit, sworn September 21, 2001, as well
as exhibits "A" and "B" to that affidavit are struck;
2.
This
application for judicial review of the decision of the PRB, dated May 27, 2011,
is dismissed; and
3.
There
is no order as to costs.
"Mary
J.L. Gleason"
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