Date: 20120619
Dockets: T-1324-11
T-1325-11
Citation:
2012 FC 782
Ottawa, Ontario,
June 19, 2012
PRESENT: The
Honourable Mr. Justice Harrington
Docket:
T-1324-11
BETWEEN:
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MATILDA FLITCROFT
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Applicant
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and
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THE ATTORNEY GENERAL
OF CANADA
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Respondent
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Docket: T-1325-11
AND BETWEEN:
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BARRIE FLITCROFT
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Applicant
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and
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THE ATTORNEY GENERAL
OF CANADA
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Respondent
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REASONS FOR
ORDER AND ORDERS
[1]
The
issue is whether the Review Tribunal, constituted under the Old Age Security
Act, got it wrong in awarding the Flitcrofts a partial, rather than a full,
pension. Entitlement is based on the number of years of residence in Canada, and not citizenship.
[2]
The
facts are not in dispute. Barrie Flitcroft left Canada as a young child. He
only returned in 1984 with his English wife, Matilda. At that time, he was
forty-one years of age and Matilda was forty-three. Thereafter, they were out
of the country for some time serving as Christian missionaries in the Philippines and in the United States. However, in accordance with the applicable regulations, those
years are calculated as Canadian for pension purposes.
[3]
Based
on its understanding of the Act, more particularly section 3 thereof, the
Tribunal awarded Mr. Flitcroft 23/40th’s and Mrs. Flitcroft 21/40th’sof
a full pension. Both submit that they are entitled to a full pension.
[4]
An
applicant must meet three requirements to be eligible for a full pension
pursuant to subsection 3(1) of the Act. He or she must:
a. be 65
years of age;
b. have resided
in Canada for the ten years immediately preceding the day the application was
approved; and
c. had
to have either resided in Canada on 1 July 1977 or at any period prior thereto,
as long as they were then between the ages of 18 and 25.
[5]
The
Flitcrofts were both 65 years of age and had resided in Canada for the ten years immediately preceding the approval of their applications. The problem
is subparagraph 3(1)(b)(i) of the Act. Although all of section 3 is appended
hereto, for ease of reference that subsection reads as follows:
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3. (1) Subject to this Act and the regulations, a full
monthly pension may be paid to
[…]
(b) every person who
(i) on
July 1, 1977 was not a pensioner but had attained twenty-five years of age
and resided in Canada or, if that person did not reside in Canada, had
resided in Canada for any period after attaining eighteen years of age or
possessed a valid immigration visa,
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3. (1) Sous réserve des autres dispositions de la présente
loi et de ses règlements, la pleine pension est payable aux personnes
suivantes :
…
b) celles qui, à la fois :
(i) sans être pensionnées au 1er juillet 1977,
avaient alors au moins vingt-cinq ans et résidaient au Canada ou y avaient
déjà résidé après l’âge de dix-huit ans, ou encore étaient titulaires d’un
visa d’immigrant valide,
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[6]
On
1 July 1977, neither Flitcroft was then a pensioner, both were more than 25
years of age, but neither was then residing in Canada or had resided in Canada at any time between the ages of 18 and 25, and neither possessed a valid immigration
visa.
THE DECISIONS
[7]
The
argument before the Tribunal, and indeed repeated in this Court, is that the
words “for any period” in subsection 3(1)(b)(i) refer to any period prior to
the ten years immediately preceding the day the application was approved, and
not “for any period” prior to 1 July 1977. The Tribunal was of the view that “for
any period” meant any period on or before 1 July 1977. Either the Flitcrofts
had to have been residing in Canada on that day, which they were not, or they
had to have resided here at some period when they were between the ages of 18
and 25, which they had not.
[8]
The
Flitcrofts’ position is that the decision was both unreasonable and incorrect.
They submit that subsection 3(1)(b)(i) is ambiguous, and more particularly that
the date of 1 July 1977 only relates to the age requirement as of that date,
but does not provide that the applicant had to have resided in Canada at some point prior thereto. The Attorney General submits that there is only one way
to interpret subparagraph 3(1)(b)(i). The decision is both correct in law and
reasonable. He is, quite understandably, somewhat ambivalent as to the standard
of review.
THE STANDARD OF REVIEW
[9]
The
Review Tribunal was interpreting one of its “home” statutes. As stated in Dunsmuir
v New Brusnwick, 2008 SCC 9, [2008] 1 S.C.R. 190, this Court should show
deference and review on a reasonableness standard where a tribunal is
interpreting its own statute or statutes closely connected to its function
(para 54). When it comes to questions of law, however, Dunsmuir also
points out that the correctness standard will apply if the question of law is
of central importance to the legal system and outside the specialized area of
expertise of the administrative decision-maker. Nevertheless, at paragraphs 57
and 62 the Court also noted that it was not necessary in every case to re-determine
the proper standard of review, as existing jurisprudence may be helpful.
[10]
The
existing jurisprudence indicates review of pure questions of law, as this
surely is, on a correctness standard. Prior to Dunsmuir, this Court held
that decisions of the Review Tribunal involving statutory interpretation of the
Old Age Security Act were reviewable on a correctness standard (Stachowski
v Canada (Attorney General), 2005 FC 1435, 282 FTR 99 and Canada
(Minister of Human Resources Development) v Stiel, 2006 FC 466, [2006] 4
FCR 489). Post-Dunsmuir, it was also held by Madam Justice Gauthier, as
she then was, that the correctness standard applied (Singer v Canada (Attorney General), 2010 FC 607, 370 FTR 121). That decision was upheld by the
Court of Appeal, 2011 FCA 178, 423 NR 212, but it was not necessary for it to
consider the standard of review.
[11]
However,
more recent jurisprudence from the Supreme Court may well suggest that previous
decisions are not as relevant as they once were (Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 SCR 654). Mr. Justice Rothstein, with whom Chief Justice McLachlin and
Justices LeBel, Fish, Abella and Charron concurred, said at paragraph 34:
[…] it is
sufficient in these reasons to say that, unless the situation is exceptional,
and we have not seen such a situation since Dunsmuir, the interpretation
by the tribunal of “its own statute or statutes closely connected to its
function, with which it will have particular familiarity” should be presumed to
be a question of statutory interpretation subject to deference on judicial
review.
See also Canada (Canadian
Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3
SCR 471 at paragraph 16.
[12]
However,
I do not have to grapple with this issue. In my opinion, the Review Tribunal’s
interpretation of section 3 of the Act is correct. A decision which is correct
in law cannot be unreasonable for the purposes of judicial review.
[13]
I
do not find the section vague and so have no need to resort to the history of
the statute or to Hansard. If I had, I would have relied upon Madam
Justice Gauthier’s detailed analysis in Singer, above, which dealt with
a somewhat different issue.
[14]
Even
if there were any ambiguity in the English text, and I stress that in my
opinion there is not, any doubt would be dispelled by the French version. The
Flitcrofts note that there is a comma after “resided in Canada”. They submit, therefore, that if the person did not reside in Canada on 1 July 1977 they nevertheless fell within the subsection if they thereafter resided
in Canada after attaining 18 years of age, as the Flitcrofts did when they were
41 and 43 respectively. However, there is no such comma in the French version
so that a person who did not reside in Canada on 1 July 1977 had to, before
then, have resided here after attaining the age of 18. Neither Mr. nor Mrs.
Flitcroft fall within that category.
[15]
The
Flitcrofts submit that the decisions are procedurally unfair in that the
Tribunal did not adequately rationalize its decisions as per paragraph 47 of Dunsmuir.
I do not agree. Even if I were to agree, in Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708, Madam Justice Abella, speaking for the Court, held that
inadequacy of reasons was not a stand-alone basis for quashing a decision in
judicial review. Furthermore, at paragraph 15 it was stated that the Court may,
if found necessary, look at the record for the purpose of assessing the
reasonableness of the outcome. The record includes section 3, which was
reasonably interpreted by the Tribunal. Indeed, as aforesaid, in my opinion the
interpretation was correct.
[16]
Even
leaving aside the 40-year residency requirement of subsection 3(1)(c) the
Flitcrofts’ interpretation of the Act is unreasonable. According to them, applicants
65 years of age who neither resided in Canada on 1 July 1977, nor at any time prior
thereto when they were between the ages of 18 and 25 would not be entitled to a
full pension if they resided here for exactly 10 years prior to the approval of
their application. However, if they resided here 10 years plus one day they
would be entitled to a full pension. That interpretation is, in my opinion,
unreasonable.
COSTS
[17]
The
Attorney General does not seek costs, and so none shall be granted.
ORDERS
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
applications for judicial review are dismissed.
2.
There
shall be no order as to costs.
“Sean Harrington”
APPENDIX
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Old Age Security Act
Section 3
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Loi sur la sécurité de la vieillesse
Article 3
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3. (1) Subject to this Act and the regulations, a full
monthly pension may be paid to
(a) every
person who was a pensioner on July 1, 1977;
(b) every
person who
(i) on July 1, 1977 was not a pensioner but had attained
twenty-five years of age and resided in Canada or, if that person did not
reside in Canada, had resided in Canada for any period after attaining
eighteen years of age or possessed a valid immigration visa,
(ii) has attained sixty-five years of age, and
(iii) has resided in Canada for the ten years immediately
preceding the day on which that person’s application is approved or, if that
person has not so resided, has, after attaining eighteen years of age, been
present in Canada prior to those ten years for an aggregate period at least
equal to three times the aggregate periods of absence from Canada during
those ten years, and has resided in Canada for at least one year immediately
preceding the day on which that person’s application is approved; and
(c) every
person who
(i) was not a pensioner on July 1, 1977,
(ii) has attained sixty-five years of age, and
(iii) has resided in Canada after attaining eighteen years of
age and prior to the day on which that person’s application is approved for
an aggregate period of at least forty years.
(2) Subject to this Act and the
regulations, a partial monthly pension may be paid for any month in a payment
quarter to every person who is not eligible for a full monthly pension under
subsection (1) and
(a) has
attained sixty-five years of age; and
(b) has
resided in Canada after attaining eighteen years of age and prior to the day
on which that person’s application is approved for an aggregate period of at
least ten years but less than forty years and, where that aggregate period is
less than twenty years, was resident in Canada on the day preceding the day
on which that person’s application is approved.
(3) The amount of a partial monthly
pension, for any month, shall bear the same relation to the full monthly
pension for that month as the aggregate period that the applicant has resided
in Canada after attaining eighteen years of age and prior to the day on which
the application is approved, determined in accordance with subsection (4),
bears to forty years.
(4) For the purpose of calculating the
amount of a partial monthly pension under subsection (3), the aggregate
period described in that subsection shall be rounded to the lower multiple of
a year when it is not a multiple of a year.
(5) Once a person’s application for a
partial monthly pension has been approved, the amount of monthly pension
payable to that person under this Part may not be increased on the basis of
subsequent periods of residence in Canada.
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3. (1) Sous réserve des autres dispositions de la présente
loi et de ses règlements, la pleine pension est payable aux personnes
suivantes :
a) celles qui avaient la qualité
de pensionné au 1er juillet 1977;
b) celles qui, à la fois :
(i) sans être pensionnées au 1er juillet 1977,
avaient alors au moins vingt-cinq ans et résidaient au Canada ou y avaient
déjà résidé après l’âge de dix-huit ans, ou encore étaient titulaires d’un
visa d’immigrant valide,
(ii) ont au moins soixante-cinq ans,
(iii) ont résidé au Canada pendant les dix ans précédant la
date d’agrément de leur demande, ou ont, après l’âge de dix-huit ans, été
présentes au Canada, avant ces dix ans, pendant au moins le triple des
périodes d’absence du Canada au cours de ces dix ans tout en résidant au
Canada pendant au moins l’année qui précède la date d’agrément de leur
demande;
c) celles qui, à la fois :
(i) n’avaient
pas la qualité de pensionné au 1er juillet 1977,
(ii) ont
au moins soixante-cinq ans,
(iii) ont,
après l’âge de dix-huit ans, résidé en tout au Canada pendant au moins
quarante ans avant la date d’agrément de leur demande.
(2) Sous réserve
des autres dispositions de la présente loi et de ses règlements, une pension
partielle est payable aux personnes qui ne peuvent bénéficier de la pleine
pension et qui, à la fois :
a) ont au moins soixante-cinq
ans;
b) ont, après l’âge de dix-huit
ans, résidé en tout au Canada pendant au moins dix ans mais moins de quarante
ans avant la date d’agrément de leur demande et, si la période totale de
résidence est inférieure à vingt ans, résidaient au Canada le jour précédant
la date d’agrément de leur demande.
(3) Pour un mois donné, le montant de
la pension partielle correspond aux n/40 de la pension complète, n
étant le nombre total — arrondi conformément au paragraphe (4) — d’années de
résidence au Canada depuis le dix-huitième anniversaire de naissance jusqu’à
la date d’agrément de la demande.
(4) Le nombre total d’années de
résidence au Canada est arrondi au chiffre inférieur.
(5) Les années de résidence
postérieures à l’agrément d’une demande de pension partielle ne peuvent
influer sur le montant de celle-ci.
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