Date: 20110112
Docket: T-955-09
Citation: 2011 FC 26
BETWEEN:
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NASEEM HUSSAINI
AND SYED HUSSAINI
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Applicants
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and
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MINISTER OF SOCIAL DEVELOPMENT
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Respondent
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REASONS
FOR JUDGMENT
HENEGHAN J.
Introduction
[1]
Mrs.
Naseem Hussaini (the “Applicant”) and Mr. Syed Hussaini (collectively the
“Applicants”) seek judicial review of a decision made on May 11, 2009 by the
Canada Pension Plan/Old Age Security Review Tribunal (the “Review Tribunal”).
In that decision, the Review Tribunal dismissed the Applicant’s appeal from a
review decision which determined that the Applicant did not qualify for
an Old Age Security (“OAS”) pension as of July 2005.
Facts
[2]
The
facts are taken from the affidavit of Mr. Trevor Bank, including the attached
exhibits. The relevant materials from the Minister of Social Development Canada’s
(the “Minister”) department are attached as exhibits to the affidavit of Mr. Bank.
[3]
The
Applicants were born in India. The female Applicant claims that she was
born on June 8, 1939 but all her documentation issued prior to 2007
indicates that she was born on June 10, 1948.
[4]
The
female Applicant met Mr. Hussaini when her family was living in a building with
his family. Her marriage was arranged to Mr. Hussaini following her father’s
death. Although the dates seem to be contested, the Applicants’ marriage
certificate indicates that they were married on June 4, 1966. At the
hearing before the Review Tribunal, the female Applicant testified that she was
between the ages of 17 and 19 when she married Mr. Hussaini. The Applicants’
first son was born in India on May 25, 1967 and their second son was born in Canada on June 1,
1974.
[5]
The
female Applicant was issued an Indian passport on February 18, 1970. This
document records that her date of birth is June 10, 1948. Her Canadian
Immigration Identification Record of January 28, 1974, her certificate of
Canadian Citizenship dated 1977 and her application for a Canadian Social
Insurance Number card dated September 7, 1973 all show that her date of birth
is June 10, 1948. The female Applicant made two attempts to amend her Canadian
Immigration Identification Record but these were denied. Her Canadian
passport was issued on May 11, 2005 with a birth date of June 10, 1948.
[6]
At
the hearing before the Review Tribunal, the female Applicant testified, and
confirmed her testimony, that she was unaware of her true birth date until
2005.
[7]
On
March 29, 2005, the female Applicant applied for an OAS pension, using the birth
date of June 8, 1939. On February 21, 2006, she was granted a full OAS pension
and Guaranteed Income Supplement (“GIS”) effective July 2004, using June 8,
1939, as her birth date.
[8]
The
Minister advised the Applicant on April 18, 2007, that she did not qualify for
the OAS as of June 2004, and as a result had been overpaid a total of
$21,016.46. The female Applicant requested a review of that decision. She
submitted, among other documents, marriage certificates obtained in March 2005,
affidavits from herself, her aunt, and her uncle dated February 2005, and a
letter dated April 4, 2007, from Argosy Securities Inc. verifying the age of
the female Applicant and the fact that she receives a monthly Life Income Fund
payment from that company.
[9]
The
Minister rejected the Applicants’ request for a review on June 4, 2007 on the
basis that the female Applicant’s Canadian Citizenship card, Canadian Passport,
and Canadian Immigration Identification Record tended to show that the
female Applicant was born in June 1948.
[10]
The
Minister did not file materials pursuant to Rule 317 of the Federal Courts
Rules, SOR/98-106 (the “Rules”), as she was of the opinion that all the
Review Tribunal material was in the possession of the Applicants. That material
was provided as appendixes to affidavits filed on behalf of the Applicants and
the Minister.
[11]
The
female Applicant submitted a Notice of Appeal to the Review Tribunal on
September 5, 2007. Together with her Notice of Appeal, she submitted letters
from a Dr. De Souza and a Dr. Lacy dated November 27, 2007 and August 9, 2007,
respectively. These letters say that the Applicant was born in 1939. Dr. Lacy,
the Applicants’ family doctor for twenty years, indicated that there was no
reason to doubt that the female Applicant was 68 years old in 2007. Her income
tax records for 2006 and 2007 also reflected a birth date in 1939.
[12]
The
Review Tribunal hearing was held on January 27, 2009. The Review Tribunal
dismissed the appeal on May 11, 2009, finding that the female Applicant’s date
of birth was June 10, 1948.
[13]
Mr.
Hussaini also appealed a decision of the Minister. His appeal was heard
together with his wife’s appeal, but a separate decision was rendered and the
within application for judicial review does not address the decision relative to
Mr. Hussaini.
Discussion and
Disposition
Preliminary Issues
[14]
The
Minister has raised a couple of preliminary issues. The first issue relates to
the Affidavit of Mr. Hussaini dated December 21, 2009. This Affidavit is not
sworn and it is not commissioned. Further, the Minister says that the exhibits
are not accurately identified in accordance with Rule 80(3) of the Rules.
[15]
The
Minister argues that the Affidavit is liable to be found inadmissible, relying
upon the decision in Huang v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 106 (QL). As well, the Minister
submits that much of the Affidavit contains argument and opinion. The Minister
argues that it should be struck in its entirety.
[16]
As
well, the Minister submits that the failure of the female Applicant to
file an affidavit should lead to the finding of an adverse inference against
her, pursuant to Rule 81(2) of the Rules.
[17]
The
Applicant did not reply to this issue as explained by the Minister.
[18]
I
agree with the arguments advanced by the Minister. The only affidavit filed by
the Applicants on the record before the Court is the Affidavit of Mr. Hussaini.
It is signed by him but it is not sworn. In Huang, the respondent’s
objection to an affidavit was dismissed, in part because the objection was
raised for the first time at the oral hearing. In the present case, the Minister
objected to the admission of the Affidavit in written argument and it was open
to the female Applicant to seek leave to file a supplementary affidavit or
record.
[19]
Since
all of the exhibits attached to Mr. Hussaini’s Affidavit are unidentified and
the Affidavit is largely argumentative, it should be struck. However, this does
not mean that it must be physically removed from the record. In this case, it
means that it will not be considered.
[20]
It
is unclear that Rule 81(2) necessarily applies in this case. That Rule provides
as follows:
81(2)
Where an affidavit is made on belief, an adverse inference may be drawn from
the failure of a party to provide evidence of persons having personal
knowledge of material facts.
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81(2)
Lorsqu’un affidavit contient des déclarations fondées sur ce que croit le
déclarant, le fait de ne pas offrir le témoignage de personnes ayant une
connaissance personnelle des faits substantiels peut donner lieu à des
conclusions défavorables.
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[21]
This
Rule merely grants discretion in the Court to draw an adverse inference where
an affidavit is based on belief. This Rule does not necessarily prescribe that
the failure by an applicant to file her own affidavit necessarily leads to
dismissal of the application. An application for judicial review can proceed
without an affidavit being filed on behalf of the applicant or applicants; see Ominayak
v. Lubicon Lake Indian Nation Election (Returning Officer) (2000), 185
F.T.R. 33, reversed on other grounds (2000), 267 N.R. 96.
[22]
In
any event, this is an application for judicial review and as such, proceeds on
the basis on the record that was before the subordinate decision-maker. In the
absence of evidence based on personal knowledge, any error must appear on the
face of that record; see Turcinovica v. Canada (Minister of
Citizenship and Immigration) (2002), 216 F.T.R. 305. The
necessary facts are contained in that record, which is attached to an
affidavit filed on behalf of the Minister. The necessary facts are accordingly
before the Court. The Affidavit of Mr. Hussaini can stand but as noted above,
it will not be considered.
[23]
The
Minister further objects to the manner in which the Applicants have framed the
style of cause. The Minister submits that there is only one Applicant, the
female Applicant. She was the sole appellant before the Review Tribunal. Mr.
Hussaini did not seek judicial review of the Review Tribunal’s decision
dismissing his appeal and according to the Minister, he is not a proper party
in the within proceedings.
[24]
As
well, the Minister argues that the style of cause should be amended to show the
Attorney General of Canada as the Respondent rather than the Minister of Social
Development.
[25]
Once
again, the Applicants did not address these arguments. However, these matters
merit some brief comments.
[26]
Part
5 of the Rules dealing with applications including applications for judicial
review does not contain a definition of “applicant”. However, a definition is
found in Rule 2 as follows:
The
following definitions apply in these Rules.
…
“applicant”
(a)
except in the case of an application that has been certified as a class
proceeding, includes a person on whose behalf an application is commenced;
and
(b)
in the case of an application that has been certified as a class proceeding,
means
(i)
in respect of the common questions of law or fact, the representative
applicant, and
(ii)
in respect of individual questions, the member to whom those questions apply.
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Les
définitions qui suivent s’appliquent aux présentes règles.
…
«
demandeur »
a)
Dans le cas d’une action ou d’une demande autre que celle autorisée comme
recours collectif, est assimilée au demandeur toute personne pour le compte
de laquelle l’action ou la demande est introduite;
b)
dans le cas d’une action ou d’une demande autorisée comme recours collectif :
(i)
à l’égard des points de droit ou de fait communs, le représentant demandeur,
(ii)
à l’égard des points individuels, le membre concerné.
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[27]
Paragraph
(a) of the above quoted definition applies in this case. The definition is
basic and the criterion is that an application has been commenced. Finer
questions as to the true status of an “applicant” can be addressed in the
context of subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c.
F-7, which provides as follows:
An application
for judicial review may be made by the Attorney General of Canada or by
anyone directly affected by the matter in respect of which relief is sought.
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Une
demande de contrôle judiciaire peut être présentée par le procureur général
du Canada ou par quiconque est directement touché par l’objet de la demande.
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[28]
The
key factor here is that a person bringing an application is “directly affected
by the matter in respect of which relief is sought”.
[29]
In
the present case, Mr. Hussaini was a party to the Applicant’s appeal before the
Review Tribunal. However, that proceeding is not co-equivalent with the present
proceeding. While the quantum of the female Applicant’s pension benefits may
form part of the family income for the female Applicant and Mr. Hussaini, there
is no evidence before me to show that Mr. Hussaini is “directly affected” by
the decision under review. Accordingly, in the absence of evidence, I decline
to exercise my discretion to recognize him as an appropriate party to this
application for judicial review and the style of cause will be amended
accordingly.
[30]
Rule
303 defines who shall be named as a respondent in an application for judicial
review, as follows:
303.
(1) Subject to subsection (2), an applicant shall name as a respondent every
person
(a)
directly affected by the order sought in the application, other than a
tribunal in respect of which the application is brought; or
(b)
required to be named as a party under an Act of Parliament pursuant to which
the application is brought.
Application
for judicial review
(2)
Where in an application for judicial review there are no persons that can be
named under subsection (1), the applicant shall name the Attorney General of
Canada as a respondent.
Substitution
for Attorney General
(3)
On a motion by the Attorney General of Canada, where the Court is satisfied
that the Attorney General is unable or unwilling to act as a respondent after
having been named under subsection (2), the Court may substitute another
person or body, including the tribunal in respect of which the application is
made, as a respondent in the place of the Attorney General of Canada.
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303.
(1) Sous réserve du paragraphe (2), le demandeur désigne à titre de défendeur
:
a)
toute personne directement touchée par l’ordonnance recherchée, autre que
l’office fédéral visé par la demande;
b)
toute autre personne qui doit être désignée à titre de partie aux termes de
la loi fédérale ou de ses textes d’application qui prévoient ou autorisent la
présentation de la demande.
Défendeurs
— demande de contrôle judiciaire
(2)
Dans une demande de contrôle judiciaire, si aucun défendeur n’est désigné en
application du paragraphe (1), le demandeur désigne le procureur général du
Canada à ce titre.
Remplaçant
du procureur général
(3)
La Cour peut, sur requête du procureur général du Canada, si elle est
convaincue que celui-ci est incapable d’agir à titre de défendeur ou n’est
pas disposé à le faire après avoir été ainsi désigné conformément au
paragraphe (2), désigner en remplacement une autre personne ou entité, y
compris l’office fédéral visé par la demande.
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[31]
The
Minister of Social Development, who is currently named as the Respondent in
this application, is not “directly affected” by the relief sought in this
application for judicial review, nor is there any requirement in the Old Age
Security Act, R.S.C. 1985, c. O-9, that he be named as a respondent.
[32]
It
follows then, that the conditions of Rule 303(1) are not met and that Rule
303(2) applies, meaning that the appropriate respondent is the Attorney General
of Canada.
[33]
Accordingly,
the style of cause will be amended to delete Mr. Hussaini as an applicant and
to delete the Minister of Social Development as a respondent and to name the
Attorney General of Canada as the sole Respondent (the “Respondent”).
[34]
The
Respondent raises a further issue which is in the nature of a preliminary issue
relating to the attempt of the Applicant to introduce new evidence. The
so-called new evidence is a picture of Mr. Hussaini as a six-year old boy.
According to the submissions filed on behalf of the Applicant, this photograph
was discovered, by accident, subsequent to the hearing before the Review
Tribunal. The Applicant seeks to have this photograph entered as new evidence,
presumably in support of her claim that her correct birth date should be
recognized as June 8, 1939.
[35]
The
two-part test for the introduction of new evidence is set out in Kent v. Canada (Attorney General) (2004), 328
N.R. 161, as follows:
a. the new facts must
not have been discoverable with due diligence, and
b. the new facts must
be material, in that they would be practically conclusive to the matter.
[36]
While
the Applicant argues that this test has been met in this case, the Respondent
disagrees. In the first place, he says that the Review Tribunal could not have “failed”
to admit new evidence as none was placed before it, pursuant to the applicable
legislation. Further, he argues that the Applicant cannot now try to introduce
new facts that are not the subject of the application for judicial review.
[37]
This
issue can be disposed of briefly. The Applicant has not met the legal test as
set out in Kent. Even if I
assume that the photograph was discoverable with due diligence, it is not
material to the matter at hand. The photograph relates to the birth date of Mr.
Hussaini. The Review Tribunal’s decision with respect to Mr. Hussaini is not a
matter that is before the Court in the present application for judicial review.
A photograph of Mr. Hussaini would not conclusively show that the Review
Tribunal erred in its factual finding concerning the Applicant’s date of birth.
Substantive Issues
[38]
Turning
now to the merits of this matter, the first issue to be addressed is the
appropriate standard of review. Having regard to the decision of the Supreme
Court of Canada in Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, there are now only two possible standards of review, correctness or
reasonableness. The standard of correctness will apply to questions of law and
issues of procedural fairness.
[39]
The
Applicant raises an alleged procedural error by the Review
Tribunal in failing to request a forensic report. This matter was raised in the
written submissions filed on behalf of the Applicant. At the Review Tribunal
hearing, Mr. Hussaini testified that he had hired Anaya Solutions Inc.
to forensically confirm the age of the Applicant’s family records, but provided
no written documentation from Anaya. The Review Tribunal described
this evidence as hearsay and gave it little weight. The Applicant now argues
that the Review Tribunal erred by failing to have inquired about the forensic
report during the hearing.
[40]
In
reply, the Respondent submits that the Applicant’s failure to present a
forensic report at the hearing before the Review Tribunal was her own choice
and cannot be considered to be an error by the Review Tribunal.
[41]
The
Applicant characterizes this alleged error as a breach of procedural fairness.
With respect, I disagree.
[42]
No
authority has been provided to show that the duty of fairness requires the
Review Tribunal to seek evidence, in general or expert evidence, when an appeal
proceeds before it. In my opinion, the Review Tribunal did not breach the duty
of fairness owed to the Applicant by failing to demand that she produce a
forensic report to authenticate the family records.
[43]
The
standard of reasonableness will apply to questions of fact and questions of
mixed fact and law. In Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, para. 47, the Supreme Court held that the standard of reasonableness applies to
both the decision-making process and the outcome of the decision:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process.
[44]
In
my opinion, the central question arising in this application is whether the
Review Tribunal made an error of fact in its finding as to the Applicant’s date
of birth. This is a matter of fact and reviewable on the standard of
reasonableness.
[45]
The
Applicant argues that the Review Tribunal failed to assess her family records
that indicate she was born in 1939 and further that the Review Tribunal failed
to consider the medical opinion regarding her age. She suggests that the Review
Tribunal improperly focused on the Canadian Immigration Identification Records and
failed to recognize that those records were based on incorrect passports. Finally,
she argues that the Review Tribunal erred in finding that she was between the
ages of 17 and 19 when she married Mr. Hussaini.
[46]
For
his part, the Respondent submits that the Review Tribunal’s decision is
reasonable having regard to the evidence that was submitted. The Applicant’s
Social Insurance Number showed a birth date of June 10, 1948 and was only
amended two years after the Applicant applied for the OAS pension. The
Applicant applied for that pension in 2005 and sought to amend her Social
Insurance Number in 2007.
[47]
The
issue before the Review Tribunal was the Applicant’s birth date, for the
purpose of determining her eligibility for the OAS pension. A birth date is
essentially a question of fact and accordingly reviewable on the standard of
reasonableness. The Review Tribunal considered the admissible evidence that was
tendered by the Applicant.
[48]
In
the result, I am satisfied that the decision of the Review Tribunal is
reasonable, having regard to the evidence before it.
[49]
In
conclusion, this application for judicial review is dismissed. In the exercise
of my discretion, and having regard to Rule 400(1) of the Rules, I make no
order as to costs.
“E.
Heneghan”
Ottawa, ON
January
12, 2011