Date: 20110218
Docket: T-738-10
Citation: 2011 FC 195
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, February 18, 2011
PRESENT: The
Honourable Madam Justice Bédard
BETWEEN:
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ATTORNEY GENERAL OF CANADA
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Applicant
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and
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AÉROPORT DE QUÉBEC INC.
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application, in accordance with section 33.1 of the Pension
Benefits Standards Act, 1985, R.S., 1985, c. 32 (2nd Supp.) (PBSA), and
Rule 300 et seq. of the Federal Courts Rules, SOR/98‑106,
for the enforcement of a direction made on February 12, 2010, by the Superintendent
of Financial Institutions (SFI), who is represented by the Attorney General of
Canada (Attorney General). The Attorney General is applying to the Court for an
order requiring Aéroport de Québec inc. (Aéroport de Québec or the
respondent) to comply with the direction made by the SFI and to pay $263,000, plus
interest from October 15, 2008, to the pension plan fund of the general
management of Aéroport de Québec inc. (pension plan or pension plan in
question).
[2]
For
the following reasons, the application is allowed.
I. Context
[3]
Aéroport
de Québec is a company incorporated in accordance with the Canada
Corporations Act, R.S., 1970, c. C‑32, which leases the airport
facilities of the Québec City Jean Lesage International
Airport and manages
the air operations that take place there. It is the employer and administrator
of the pension plan in question. This pension plan, which had only one member,
was registered on June 29, 2007, and was terminated on October 15, 2008.
[4]
In
February 2004, Aéroport de Québec hired Ghislaine Collard as director
general and she became a member of the pension plan. Ms. Collard’s employment relationship
was terminated on June 5, 2006. At that time, Aéroport de Québec and Ms.
Collard signed an acquittance and transaction containing certain provisions in
relation to the pension plan. The purpose of these provisions was to allow for
the transfer of the actuarial present value of the obligations of the pension
plan of which Ms. Collard had been a member before being hired by Aéroport de
Québec to the pension plan in question and to allow for a second transfer into
the plan of any future employer of Ms. Collard. The parties’ respective
obligations were governed by time limits.
[5]
On
August 29, 2008, Aéroport de Québec informed Ms. Collard that the deadline
for transferring the pension plan assets to a plan of her choice was October 15, 2008,
and that it intended to initiate the termination process for the plan. On
September 22, 2008, the respondent’s actuary informed the SFI that the pension
plan would be terminated on October 15, 2008.
[6]
On
May 14, 2009, the Office of the Superintendent of Financial Institutions
(OSFI) informed Aéroport de Québec that it was examining the request for approval
of the plan’s termination report. In this letter, the OSFI also indicated that,
according to its examination of the documents provided on the termination of the
plan, Aéroport de Québec had not exercised due diligence and care with respect
to investing the plan’s assets. In a letter dated June 26, 2009, addressed to
the OSFI, Aéroport de Québec denied the OSFI’s allegations and stated its
position as to the quality of its administration of the plan.
[7]
On
January 15, 2010, the SFI submitted to Aéroport de Québec a notice of
intention to make a direction. This notice specified that the SFI was of the
view that the administration of the pension plan in question had been deficient
and that it intended to order Aéroport de Québec to pay $263,000, plus interest
from October 15, 2008, to the pension plan fund. This notice also informed
Aéroport de Québec of its right to submit representations before the SFI made a
direction. On February 4, 2010, Aéroport de Québec replied to this
notice stating its general disagreement with the SFI’s observations.
[8]
On
February 12, 2010, the SFI made the direction in question. The SFI
indicated that he believed that Aéroport de Québec had not complied with the
PBSA or the plan and that its conduct went against the practices of due
diligence and care with respect to the investment of the plan’s assets. The SFI
instructed Aéroport de Québec to pay $263,000, plus interest from October 15, 2008,
to the pension plan in question by March 5, 2010.
[9]
On
May 13, 2010, the Attorney General served and filed an application for the
enforcement of a direction by the Superintendent of Financial Institutions in
accordance with section 33.1 of the PBSA as well as an affidavit by the
senior supervisor of the OSFI attesting to Aéroport de Québec’s failure to
comply with the direction.
[10]
On
May 21, 2010, Aéroport de Québec served and filed a notice of appearance
indicating that it intended to contest the application. On June 30, 2010, it
also served and filed three affidavits dated June 28, 2010, in which the
authors, the Vice-President of Finance of Aéroport de Québec and two actuaries,
declared that the respondent administered the plan in a prudent, diligent and
appropriate manner given the circumstances.
II. Issue
[11]
At
issue is the jurisdiction of the Court in accordance with section 33.1 of
the PBSA and the respondent’s right to collaterally attack the validity of the
direction.
[12]
Section 33.1
of the PBSA states the following:
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33.1 (1) If an administrator,
employer or other person has omitted to do any thing under this Act that is
required to be done by them or on their part, or contravenes a direction of
the Superintendent or a provision of this Act or the regulations, the Superintendent
may, in addition to any other action that the Superintendent may take, apply
to the Federal Court for an order requiring the administrator, employer or
other person to cease the contravention or do any thing that is required to
be done, and on such application the Federal Court may so order and make any
other order it thinks fit.
Appeal
(2)
An appeal from an order made under subsection (1) lies in the same
manner as an appeal from any other order of the Federal Court.
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33.1 (1) En cas de manquement soit
à une de ses directives, soit à une disposition de la présente loi ou des
règlements — notamment une obligation —, le surintendant peut, en
plus de toute autre mesure qu’il peut prendre, demander à la Cour fédérale de
rendre une ordonnance obligeant l’administrateur, l’employeur ou toute autre
personne en faute à mettre fin ou à remédier au manquement, ou toute autre
ordonnance qu’il juge indiquée en l’espèce.
Appel
(2)
L’ordonnance rendue peut être portée en appel.
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III. Positions of the parties
A. Applicant’s position
[13]
The
Attorney General emphasized that Parliament gave the SFI the authority to make
directions, but not to order their enforcement, and that it entrusted this
responsibility to the Federal Court pursuant to section 33.1 of the PBSA. Moreover,
he is claiming that even without enabling legislation, the Court would have the
authority to issue the order sought by virtue of its inherent authority
recognized under section 44 of the Federal Courts Act, R.S., 1985,
c. F‑7 (FCA).
[14]
The
Attorney General maintains that the evidence demonstrates that Aéroport de
Québec did not comply with the direction made in its regard by the SFI and that
it did not contest its validity using an application for judicial review. Consequently,
the Court should order the respondent to comply with the direction since all of
the conditions required by section 33.1 of the PBSA enabling the Court to
exercise its authority to compel are satisfied.
[15]
The
Attorney General also claims that this proceeding cannot be an opportunity for Aéroport
de Québec to challenge the validity of the direction because it chose not to do
so by way of an application for judicial review. Consequently, in accordance
with the rule prohibiting collateral attacks, the respondent cannot contest the
direction in the context of this application for legal enforcement. The only
appropriate means for challenging the validity of the direction would have been
an application for judicial review pursuant to section 18.1 of the FCA.
B. Respondent’s position
[16]
Aéroport
de Québec has a different understanding of the Court’s jurisdiction in
accordance with section 33.1 of the PBSA. It submits that this section gives
the Court discretionary authority to assess the evidence and all of the
circumstances of a case, including the validity of the direction, to decide
whether it considers it appropriate to issue an order requiring a party to
comply with it. Aéroport de Québec therefore maintains that it may raise the inappropriateness
of the direction in question as a defence and that the evidence it submitted,
which the Attorney General chose to not rebut, clearly demonstrates that the
direction made by the SFI was inappropriate, given the context of the plan and
the market conditions.
[17]
Aéroport
de Québec is also rejecting the Attorney General’s position with respect to the
collateral attack rule. In its opinion, the fact that there was no application
for judicial review to have the direction set aside in no way affects the
jurisdiction of the Court by virtue of section 33.1 of the PBSA to accept or
refuse to issue an order. The jurisdiction conferred on the Court in accordance
with section 33.1 of the PBSA is not conditional on or subject to an
application for judicial review; it is independent from it. While the purpose
of a judicial review is to analyze the legality of a direction, the Court, upon
an application for enforcement, must determine whether or not it must issue an enforcement
order. Aéroport de Québec also specifies that it is not asking for the
direction to be set aside, but rather that its effects on the company be
negated.
[18]
Aéroport
de Québec claims that the SFI is criticizing it for having been negligent in administering
the pension plan and that it must be able to defend itself against this
allegation, even more so since the SFI never responded to the arguments it raised
in response to the notice of intention to make a direction. It claims that
judicial review would not offer an appropriate forum for this type of argument,
namely because of the deference the Court would likely exercise with respect to
the SFI’s decisions.
[19]
Aéroport
de Québec also believes that the Attorney General’s position is overly
formalistic. It is relying on, inter alia, the recent decisions by the
Supreme Court in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62
(available on CanLII) (TeleZone), and Manuge v. Canada,
2010 SCC 67 (available on CanLII). It submits that these decisions changed
the state of the law and that the principles applied by the Court, including that
of access to justice, should apply in this case to allow it to raise the
invalidity of the direction so as to constrain the Court from issuing the order
sought.
[20]
Aéroport
de Québec also submitted that the order application is irregular because the
SFI made his direction in accordance with subsection 11(2) of the PBSA, while
the order application is based on subsection 11(1) of the PBSA.
IV. Analysis
[21]
First,
it appears indisputable to me that the Court has the authority to issue the order
sought under section 33.1 of the PBSA and that it is unnecessary to use its
inherent authority to rule on this application.
[22]
Second,
I believe that the defence used by Aéroport de Québec to challenge the order application
directly challenges the validity of the direction made by the SFI: Aéroport de
Québec did not comply with the direction because it believes that, given the
circumstances, it was not appropriate for the SFI to make this direction. It is
therefore asking the Court to acknowledge the inappropriateness or unreasonableness
of the direction as one of the circumstances it will consider in exercising its
discretionary authority. Even though Aéroport de Québec submits that it is not
seeking to have the direction set aside, it is seeking to negate its effects
and render it inoperative. I therefore consider that this is a case in which
the very essence of the defence raised challenges the validity of the direction.
It would therefore be appropriate to assess whether, even though the respondent
did not apply for a judicial review of the direction, it may collaterally
attack it.
[23]
To
rebut the defence of Aéroport de Québec, the Attorney General is raising the
rule that prohibits a collateral attack. This rule was established in a
criminal context. It was described as follows by the Supreme Court in Wilson v. The
Queen,
[1983] 2 S.C.R. 594, 4 D.L.R. (4th) 577, at page 599:
. . . It has long been a fundamental
rule that a court order, made by a court having jurisdiction to make it, stands
and is binding and conclusive unless it is set aside on appeal or lawfully
quashed. It is also well settled in the authorities that such an order may not
be attacked collaterally—and a collateral attack may be described as an attack
made in proceedings other than those whose specific object is the reversal,
variation, or nullification of the order or judgment. . . .
[24]
In
R. v. Litchfield, [1993] 4 S.C.R. 333, at page 349,
the Supreme Court reiterated the following with respect to the rationale behind
the rule prohibiting collateral attacks:
. . . The rationale behind the rule is
powerful: the rule seeks to maintain the rule of law and to preserve the
repute of the administration of justice. To allow parties to govern their
affairs according to their perception of matters such as the jurisdiction of
the court issuing the order would result in uncertainty. Further,
"the orderly and functional administration of justice" requires that
court orders be considered final and binding unless they are reversed on appeal
(R. v. Pastro, supra, at p. 497). . . .
[25]
However,
this rule is not absolute and does not apply only to decisions rendered by the
courts. In R. v. Consolidated Maybrun Mines Ltd.,
[1998] 1 S.C.R. 706, 158 D.L.R. (4th) 193 (Maybrun),
the Supreme Court applied the rule prohibiting collateral attacks to an order issued
in accordance with the Ontario Environmental Protection Act, R.S.O. 1980,
c. 141 (EPA). This matter involved a company that operated a gold and
copper mine. The Ontario Ministry of the Environment had issued an order against
it in accordance with the EPA instructing it to take remedial action and carry
out specific work. The EPA provided for the possibility of an appeal, but the
appellant did not appeal the order. It also did not attempt to obtain judicial
review of the order. The failure to comply with an order was a criminal offence
and criminal charges were filed against the appellant company and its manager.
In defence, they raised the invalidity of the order.
[26]
The
Court found that the question of whether a penal court may determine the
validity of an administrative order depended on the legislature’s intention as
to the appropriate forum. The Court stated the following in this respect, at paragraph 52:
In summary, the question whether a penal
court may determine the validity of an administrative order on a collateral
basis depends on the statute under which the order was made and must be
answered in light of the legislature’s intention as to the appropriate
forum. In doing this, it must be presumed that the legislature did not
intend to deprive a person to whom an order is directed of an opportunity to
assert his or her rights. For this purpose, the five factors suggested by
the Court of Appeal, as reformulated here, constitute important clues for
determining the legislature’s intention as to the appropriate forum for raising
the validity of an administrative order.
[27]
The
five factors adopted by the Court are the following:
(1) the
wording of the statute from which the power to issue the order derives;
(2) the
purpose of the legislation;
(3) the
availability of an appeal;
(4) the
nature of the collateral attack taking into account the appeal tribunal’s
expertise and raison d’être;
(5) the
penalty on a conviction for failing to comply with the order.
[28]
Moreover,
the Court indicated that these factors were not independent and absolute
criteria, but that they constituted important clues, among others, for
determining the legislature’s intention.
[29]
The
context of this matter is different from that in Maybrun because the
Court does not hear criminal matters, but I believe that we can still be guided
by the principles adopted by the Court in attempting to determine the
legislature’s intention.
[30]
It
is useful to examine the context of the SFI’s authority to make directions and that
of the Court to order their enforcement. The purpose of the PBSA is to regulate
and oversee the establishment and administration of pension plans for the
benefit of employees of federal works or undertakings. It is a statute of a
preventive and remedial nature with the purpose of protecting the rights of
pension plan members and beneficiaries. In this respect, the PBSA provides a
very strict plan administration framework and imposes significant
responsibility on employers and plan administrators.
[31]
Among
other things, the administrator of a plan must ensure that it adequately administers
the plan. Section 8 states the administrator’s obligations in administering
the plan, namely:
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Administration
of pension plan and fund
(3)
The administrator shall administer the pension plan and pension fund as a
trustee for the employer, the members of the pension plan, former members,
and any other persons entitled to pension benefits or refunds under the plan.
Standard
of care
(4)
In the administration of the pension plan and pension fund, the administrator
shall exercise the degree of care that a person of ordinary prudence would
exercise in dealing with the property of another person.
Manner
of investing assets
(4.1)
The administrator shall invest the assets of a pension fund in accordance
with the regulations and in a manner that a reasonable and prudent person
would apply in respect of a portfolio of investments of a pension fund.
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Gestion
du régime et du fonds
(3)
L’administrateur d’un régime de pension gère le régime et le fonds de pension
en qualité de fiduciaire de l’employeur, des participants actuels ou anciens
et de toutes autres personnes qui ont droit à des prestations de pension ou à
des remboursements au titre du régime.
Qualité
de gestion
(4)
L’administrateur doit agir, dans sa gestion, avec autant de prudence que le
ferait une personne normale relativement aux biens d’autrui.
Gestion
en matière de placement de l’actif
(4.1)
L’administrateur doit se conformer, en matière de placement de l’actif d’un
fonds de pension, au règlement et adopter la pratique qu’une personne
prudente suivrait dans la gestion d’un portefeuille de placements de fonds de
pension.
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[32]
Moreover,
the PBSA confers significant authority on the SFI, who has the control and
supervision of the administration of the Act (section 5). The SFI’s powers
include registering pension plans and cancelling registrations, and the SFI
exercises, with respect to plan administrators and employers, significant control
and supervision authority.
[33]
Section 11
of the PBSA confers on the SFI the authority to make directions when the SFI feels
that the administration of a plan is deficient or that acts are committed in
contravention of the PBSA or its regulations:
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Superintendent’s directions to
administrators
11. (1) If, in the opinion of the
Superintendent, an administrator, an employer or any person is, in respect of
a pension plan, committing or about to commit an act, or pursuing or about to
pursue any course of conduct, that is contrary to safe and sound financial or
business practices, the Superintendent may direct the administrator, employer
or other person to
(a) cease or refrain from
committing the act or pursuing the course of conduct; and
(b) perform such acts as in the
opinion of the Superintendent are necessary to remedy the situation.
Directions in the case of
non-compliance
(2) If, in the opinion of the
Superintendent, a pension plan does not comply with this Act or the
regulations or is not being administered in accordance with this Act, the
regulations or the plan, the Superintendent may direct the administrator, the
employer or any person to
(a) cease or refrain from
committing the act or pursuing the course of conduct that constitutes the non‑compliance;
and
(b) perform such acts as in the
opinion of the Superintendent are necessary to remedy the situation.
Opportunity for representations
(3) Subject to subsection (4), no
direction shall be issued under subsection (1) or (2) unless the
Superintendent gives the administrator, employer or other person a reasonable
opportunity to make written representations.
Temporary direction
(4) If, in the opinion of the
Superintendent, the length of time required for representations to be made
under subsection (3) might be prejudicial to the interests of the
members, former members or any other persons entitled to pension benefits or
refunds under the pension plan, the Superintendent may make a temporary
direction with respect to the matters referred to in subsection (1) or
(2) that has effect for a period of not more than fifteen days.
Continued effect
(5) A temporary direction under
subsection (4) continues to have effect after the expiry of the fifteen
day period referred to in that subsection if no representations are made to
the Superintendent within that period or, if representations have been made,
the Superintendent notifies the administrator, employer or other person that
the Superintendent is not satisfied that there are sufficient grounds for
revoking the direction.
Revocation of registration
11.1 The Superintendent may revoke the
registration and cancel the certificate of registration in respect of a
pension plan if the administrator of the plan does not comply with a
direction under section 11 within sixty days, or such longer period as
the Superintendent may determine, after being informed by the Superintendent
of the failure to comply. The Superintendent shall notify the administrator
of the measures taken, including the date of the revocation and cancellation.
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Pratiques douteuses
11. (1) S’il est d’avis qu’un
administrateur, un employeur ou toute autre personne est en train ou sur le
point, relativement à un régime de pension, de commettre un acte ou d’adopter
une attitude contraires aux bonnes pratiques du commerce, le surintendant
peut lui enjoindre d’y mettre un terme, de s’en abstenir ou de prendre les
mesures qui, selon lui, s’imposent pour remédier à la situation.
Non‑conformité
(2) S’il estime qu’un régime de pension
ou la gestion de celui-ci n’est pas conforme à la présente loi ou aux
règlements, ou que cette gestion n’est pas conforme au régime, le
surintendant peut enjoindre à l’administrateur, à l’employeur ou à toute
autre personne de prendre les mesures visées au paragraphe (1) pour en
assurer la conformité.
Observations
(3) Sous réserve du
paragraphe (4), le surintendant ne peut prendre la directive visée au
paragraphe (1) ou (2) sans donner à l’administrateur, à l’employeur ou à
toute autre personne la possibilité de présenter par écrit ses observations à
cet égard.
Directive provisoire
(4) Lorsque, à son avis, le délai pour
la présentation des observations pourrait être préjudiciable à l’intérêt des
participants, actuels ou anciens, et de toute autre personne qui a droit à
une prestation de pension ou à un remboursement au titre du régime, le
surintendant peut prendre la directive visée au paragraphe (1) ou (2)
pour une période d’au plus quinze jours.
Directive reste en vigueur
(5) La directive ainsi prise reste en
vigueur après l’expiration des quinze jours si aucune observation n’a été
présentée dans ce délai ou si le surintendant avise l’administrateur,
l’employeur ou toute autre personne qu’il n’est pas convaincu que les
observations présentées justifient la révocation de la directive.
Révocation
11.1 Le surintendant peut révoquer
l’agrément du régime et annuler le certificat correspondant si
l’administrateur ne se conforme pas aux directives dans les soixante jours
suivant la notification du défaut ou dans tout délai supérieur qu’il peut
accorder; il l’informe, le cas échéant, des mesures prises ainsi que de la
date de la révocation et de l’annulation.
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[34]
When
a person who is issued a direction does not comply with it, the SFI has various
alternatives available. The SFI may decide to revoke the plan’s registration (section 11.1).
The SFI may also lay an information so that criminal proceedings are commenced against
the plan’s administrator (subsection 38(6) and paragraph 38(1)(a) of
the PBSA). The third option available to the SFI is to do what the SFI did in
this case, that is, to apply to the Court for an order requiring the persons
concerned by the direction to comply with it.
[35]
It
is clearly apparent in these provisions and in the general framework of the PBSA
that Parliament expects plan administrators and employers to rigorously comply
with the statutory and regulatory framework and with directions made by the SFI.
The importance of compliance with directions made by the SFI is notably evident
in the tools available to the SFI and the criminal consequences stemming from a
failure to comply with such a direction.
[36]
It
is interesting to note that a decision by the SFI to make a direction cannot be
appealed from, but that a decision by the SFI to revoke a registration under
the PBSA because a plan administrator did not comply with one of his directions
can be appealed from. I see in this an indication that Parliament intended to bring
finality to the SFI’s decisions to make directions, which is within the SFI’s
area of expertise, without assigning this same finality to the SFI’s decisions
to impose the ultimate sanction of cancelling the registration of a pension
plan due to a failure to comply with one of the SFI’s directions.
[37]
It
also appears to me, by the means made available to the SFI, that Parliament intended
for the SFI to be able to effectively and expeditiously act to prevent or
correct any action that could compromise the financial interests of the members
and other beneficiaries of a pension plan. One need only consider the SFI’s
authority to make an urgent temporary direction in certain circumstances even
before giving the person concerned the opportunity to make his or her representations
(subsection 11(4)). The various means at the SFI’s disposal are consistent
with the logic of the PBSA and respect the purpose of the Act to preserve and safeguard
the interests of plan members. It is also from this perspective that, in my
understanding, Parliament chose not to grant the right to appeal directions.
[38]
The
Attorney General maintains that it would not be in the interest of a proper
administration of justice to allow Aéroport de Québec to challenge the merits
of the direction in the context of an enforcement proceeding. He believes that Aéroport
de Québec’s position would allow pension plan administrators to ignore
directions made by the SFI and require the SFI to justify each direction before
the Court before it can have any effect. I share this opinion: permitting a
direction to be “appealed” collaterally in the course of an application for
legal enforcement would compromise the effectiveness of the protection and
supervision plan put in place by the PBSA and would undermine the powers conferred
on the SFI.
[39]
Even
though a right to appeal does not exist for a direction made by the SFI, the
person concerned by a direction is not without recourse if that person would
like to contest its validity. A direction by the SFI can be the subject of an
application for judicial review as it is a decision of a federal board,
commission or other tribunal within the meaning of section 2 of the FCA,
which can be appealed from under section 18.1 of the FCA. Upon judicial review,
the direction in question, which falls within the expertise of the SFI, would
probably be subject to the standard of reasonableness (Cousins v.
Canada (Attorney General), 2008 FCA 226, [2009] 2 F.C.R. 553,
and Rogers Communications Inc. v. Buschau, 2009 FCA 258
(available on CanLII)). Aéroport de Québec’s position invites the Court to rule
on the appropriateness of the direction made by the SFI without deference to
the SFI’s decision. Accepting Aéroport de Québec’s proposal would entitle the
Court to rule on the validity of the direction according to the standard of
correctness in the course of an enforcement order application even though Parliament
did not provide for a right to appeal the direction and the decision would be
owed deference in a judicial review. I do not believe that the scheme and
provisions of the PBSA support such a position.
[40]
It
should be observed that the marginal note in the French version of section 33.1
of the PBSA indicates “exécution judiciaire”. This is, in my opinion, an
additional clue that Parliament’s intention was not to require the SFI to have his
directions approved by the Court, but rather that the SFI call upon the Court
to assist him in rendering them fully enforceable.
[41]
The
last factor listed in Maybrun, that is, the penalty on a conviction for
failing to comply with the order, cannot apply in this case because the Court
is not sitting as a criminal court. The importance of the sanctions associated
with criminal offences, namely those regarding the contravention of a direction
made by the SFI (a fine not exceeding $100,000 and a maximum term of imprisonment
of one year for a natural person, and a fine not exceeding $500,000 for a legal
person), is, however, an additional clue as to the importance Parliament places
on complying with directions made by the SFI.
[42]
My
analysis of the provisions of the PBSA therefore leads me to find that Parliament
did not intend for an order application in accordance with section 33.1 of
the PBSA to be an opportunity to challenge the validity of a direction made by
the SFI.
[43]
Aéroport
de Québec submits that this position denies the Court any right to make an assessment
and would be tantamount to concluding that Parliament conferred on it an
authority subordinate to that of the SFI. In its opinion, when Parliament intended
that the Court enforce decisions by administrative tribunals without any further
formality, it did so by virtue of a procedure of filing the decision in the
Court, as is the case, for example, in accordance with sections 23 and 66 of
the Canada Labour Code, R.S., 1985, c. L‑2, with respect to
orders made by the Canada Industrial Relations Board and arbitrators.
[44]
I
do not share the respondent’s opinion because section 33.1 of the PBSA confers
a certain discretionary authority on the Court. According to section 33.1,
the Court must determine, according to the circumstances of each case, whether
the respondent contravened a direction made by the SFI or a provision of the
Act or the regulations. The SFI has the burden of proving a contravention of one
of the SFI’s directions, the Act or the regulatory provisions, as the case may
be. When the Court is of the view that the SFI has discharged his burden of
proving a contravention, it must assess whether it is appropriate to order the non-compliant
person to cease the contravention or omission or whether it is more appropriate
to issue another order. The Court may, in its assessment, consider the
circumstances of each case, even though, in a situation like this, the
circumstances raised by the respondent cannot cause the very validity of the
direction to be challenged.
[45]
Aéroport
de Québec is also claiming that the decision rendered by the Supreme Court in TeleZone
changed the state of the law and that the principles stated by the Supreme
Court should apply in this case. With respect for the contrary view, I do not
believe that the principles stated in TeleZone are applicable to this
case. In TeleZone, the Court had to determine whether a person claiming to
be injured by an order by an administrative decision-maker could bring a
damages claim against the Crown before the Federal Court or a provincial
superior court without first having the decision set aside by way of judicial
review before our Court. In this case, the Attorney General relied namely on
the jurisprudence of the Federal Court of Appeal in Canada v. Grenier,
2005 FCA 348, [2006] 2 F.C.R. 287, and Tremblay v.
Canada, 2004 FCA 172, [2004] 4 F.C.R. 165. According to
this case law, the right to bring a damages claim against the Crown was
contingent upon first obtaining an order by the Federal Court setting aside the
decision of the administrative decision‑maker in question. The Court
based its reasoning on the provisions of the FCA, which grants the Federal
Court exclusive jurisdiction in the judicial review of decisions by a federal board,
commission or other tribunal, and the rule prohibiting collateral attacks.
[46]
The
Supreme Court stated that a person claiming to have been injured as a result of
an order by an administrative decision-maker could seek damages without having
to first proceed by way of judicial review of the decision in question. The
Court found that the principle of access to justice was at issue and that it
required barring the litigant from a multiplicity of proceedings. The Court
also believed that the Federal Court’s position of exclusive authority was not
consistent with provisions in the FCA and the Crown Liability and
Proceedings Act, R.S., 1985, c. C‑50, which allow for a remedy
in damages. Moreover, the Court specified that these principles applied insofar
as the purpose of the action brought was not to set aside the order or deprive
it of its effects. The Court stated the following in this respect:
18 This appeal is fundamentally
about access to justice. People who claim to be injured by government
action should have whatever redress the legal system permits through procedures
that minimize unnecessary cost and complexity. The Court’s approach
should be practical and pragmatic with that objective in mind.
19 If a claimant seeks to set aside
the order of a federal decision maker, it will have to proceed by judicial
review, as the Grenier court held. However, if the claimant is
content to let the order stand and instead seeks compensation for alleged
losses (as here), there is no principled reason why it should be forced to
detour to the Federal Court for the extra step of a judicial review application
(itself sometimes a costly undertaking) when that is not the relief it
seeks. Access to justice requires that the claimant be permitted to
pursue its chosen remedy directly and, to the greatest extent possible, without
procedural detours.
(Emphasis
added.)
[47]
This
situation is very different from that in TeleZone. Although Aéroport de
Québec stated that it was not asking for the SFI’s direction to be set aside,
it is clear that the defence it is raising is intended to deprive the direction
of its legal effects by rendering it unenforceable. The validity and merits of
the direction are therefore at the very heart of the defence raised. This is precisely
the type of case in which, according to my understanding of the teachings of
the Supreme Court in TeleZone, a direction can only be challenged through
judicial review.
[48]
Furthermore,
in TeleZone, the Court ruled that the rule prohibiting collateral
attacks could not justify the approach taken by the Federal Court of Appeal
regarding the jurisdictional monopoly of the Federal Court. It did not,
however, reject the rule prohibiting collateral attacks or challenge the
jurisprudence in this respect, namely Maybrun. On the contrary, the
Court recognized the qualified nature of the approach adopted in Maybrun
and indicated that the Crown could raise the rule prohibiting collateral attacks
as a defence before the superior court.
[49]
Therefore,
I find that Aéroport de Québec cannot challenge the validity of the direction made
by the SFI in the context of this application for enforcement and that, in this
case, the Court should order its enforcement.
[50]
I
will finish by specifying that the argument on the irregularity of the order application,
which is allegedly based on a subsection of the PBSA that is different from
that raised in the direction, is without merit. The notice of intention refers
to subsection 11(2) of the PBSA. The direction refers to section 11 of
the PBSA without any other specification. Moreover, it appears from the wording
of the direction that the complaint refers to subsection (2) of section 11.
I see nothing irregular in this manner of proceeding.
JUDGMENT
THE
COURT ALLOWS this application and ORDERS the respondent, Aéroport
de Québec, to comply with the direction of the Superintendent of Financial
Institutions dated February 12, 2010, and to pay $263,000, plus interest
from October 15, 2008, to the pension plan fund of the general management
of Aéroport de Québec Inc.
WITH COSTS.
“Marie‑Josée Bédard”
Certified
true translation
Janine
Anderson, Translator
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