Date: 20070308
Docket: T-603-05
Citation: 2007 FC 272
Ottawa, Ontario, March 8th,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DANIEL
KING
Plaintiff
(Motion Respondent)
and
HER
MAJESTY THE QUEEN
Defendant
(Moving Party)
REASONS FOR ORDER AND ORDER
(With respect to the adjournment of this
motion to strike the proposed class action)
[1]
The defendant brings this motion to strike the
plaintiff’s amended statement of claim (the Claim) on the basis that
plaintiff’s proposed class action, as commenced by the Claim, discloses no
reasonable cause of action or is an abuse of process. The plaintiff seeks
damages for breach of “statutory contract” and “statutory duty” arising out of
the defendant’s failure to award interest on a retroactive disability pension
benefits paid under the Canada Pension Plan, R.S.C. 1985, c. C-8 (the
Plan).
[2]
The plaintiff, Mr. King, became disabled and
applied for a disability pension in 1996. It was repeatedly denied, but
ultimately on an appeal before the Pension Appeals Board Mr. King was granted a
monthly disability pension in 2003 and a retroactive lump sum payment in the
amount of $109,869.49 which was the total of the monthly pension which he ought
to have received from June 1995 to January 2003. Mr. King sought interest on
the retroactive amount of this lump sum payment, which the defendant refused.
This proposed class action is for interest on the retroactive lump sum payment
for the plaintiff, and for others in the same position.
Background Facts
[3]
The plaintiff suffered certain disabling
injuries in February 1985, March 1989 and May 1992. The plaintiff applied for a
disability pension under subsection 60(6) of the Plan on May 10, 1996. By
letter dated September 12, 1996, Human Resources Development Canada (HRDC) denied
the plaintiff’s application under subsection 60(7) of the Plan because his
disability was not “severe and prolonged”.
[4]
On September 26, 1996, the plaintiff requested a
reconsideration of his application under paragraph 81(1)(b) of the Plan. HRDC denied
the plaintiff’s application under subsection 81(2) of the Plan on October 30,
1996 because he did not fully meet the requirements of the Plan and he was
still able to perform other work suitable to his condition.
[5]
On December 20, 1996, the plaintiff appealed to
the Review Tribunal under subsection 82(1) of the Plan. On July 24, 1998, the
Review Tribunal denied the plaintiff’s claim for disability benefits on the
basis that his disability was not severe and prolonged as required under
paragraph 42(2)(a) of the Plan.
[6]
On August 12, 1998, the plaintiff sought leave
to appeal the Review Tribunal’s decision to the Pension Appeals Board (the
Board). The plaintiff’s appeal was allowed in the Board’s decision dated
December 13, 2002, which granted the plaintiff a disability pension under the
Plan. The plaintiff subsequently received lump sum benefits totalling
$109,869.49 for the period from June 1995 to January 2003. This sum represented
the aggregate of each of the monthly payments the plaintiff would have received
had the payments been made in the ordinary course. The plaintiff also received
a monthly disability pension commencing in February 2003.
[7]
On February 3, 2003, the plaintiff’s solicitor
wrote to the Minister seeking interest on the retroactive amount of the plaintiff’s
disability. By letter dated March 21, 2003, the Minister refused the payment of
interest on the retroactive amount:
The
decision of the Pension Appeals Board resulted in a grant of Mr. King’s Canada
Pension Plan Disability benefits effective June 1995. Accordingly, a
retroactive entitlement in the amount of $109 869.49 was owing to your client. Regarding
the payment of interest on retroactive awards, there is no legislative
authority surrounding this issue; however, it has been our department’s policy
not to do so. Supporting argument for this policy would be since we do not charge
interest on overdue debts to the Crown we would not pay interest on retroactive
awards to the client.
[Emphasis added]
[8]
Both parties agree that the plaintiff’s request
for retroactive interest was not made under subsection 66(4) of the Plan or in
reliance of the jurisprudence of the Federal Court of Appeal which provides that
the remedial action which the Minister may consider appropriate under that
subsection includes interest. Both parties also agreed at the hearing that Mr.
King can still make a request to the Minister under the Plain for remedial
action as the Minister considers appropriate to place Mr. King in the position
that Mr. King would have been in under the Act had he have received his
disability pension in a timely fashion. However, it must be demonstrated to the
Minister that the original denial of the pension benefits was because of
“erroneous advice” from the Minister’s department administering the Plan or an
“administrative error” by the Minister’s department administering the Plan.
Plaintiff’s Position
[9]
The plaintiff argues that the monthly pension
benefits he received in 2003 for the benefits due in June 1995 do not represent
adequate compensation as required under the Plan. The plaintiff argues that the
Plan requires the Minister to compensate him by paying interest on the
retroactive benefits and adjusting his award for inflation over the period
between June 1995 and January 2003.
[10]
The plaintiff alleges that the provisions of the
Plan constitute a statutory contract among him, his employer, and the Minister
of HRDC (the Minister). He alleges that the terms of this contract were
breached when the Minister failed to make the timely payment to the plaintiff
of the pension benefit due for June 1995 and each successive month up to
January 2003.
[11]
The plaintiff alleges in the alternative that
the provisions of the Plan impose a statutory duty on the Minister, and that
this duty was breached when the Minister failed to make timely payment of the
plaintiff’s benefits.
The Ontario Claim
[12]
The plaintiff commenced a similar action before
Ontario Superior Court of Justice under the Class Proceedings Act, 1992, S.O. 1992, c. 6, in Daniel King v. The Attorney General of Canada,
Court file number: 22198/A3 (the Ontario Claim). Under the Ontario Claim, the
plaintiff pleaded that he was entitled to a disability pension under the Plan
and purported to bring the action on behalf of everyone entitled to a pension
or supplementary benefits under the Plan “the payment of which pension or
supplementary benefits was initially denied and subsequently made by the
Minister of Human Resources Canada [sic] on a retroactive basis without
payment of interest”.
[13]
By order dated March 30, 2004, Justice Rady of
the Ontario Superior Court of Justice stayed the Ontario Claim. The plaintiff
had brought a carriage motion in an attempt to stay the competing proposed
class action in the matter of Gorecki v. Attorney General of Canada. In
her order, Justice Rady stated:
… [T]he Gorecki action is to proceed; the
King action is stayed and no other action concerning claims for interest on
lump sum retroactive payments made pursuant to the CPP are to proceed without
leave of the Court.”
[14]
The plaintiff sought leave to appeal Justice
Rady’s order to the Ontario Divisional Court. Leave to appeal was dismissed on May 17, 2004. The plaintiff
issued the statement of claim in this action on April 6, 2005 and served a
notice of discontinuance of the Ontario Claim on May 13, 2005.
[15]
The claim in Gorecki was summarily
dismissed in part by Justice Rady on August 17, 2005: Gorecki v. Canada (Attorney General), [2005]
O.J. No. 3465. On September 22, 2005, I issued a direction
holding this action in abeyance pending the determination of the appeal of
Justice Rady’s order. On March 27, 2006, the Ontario Court of Appeal dismissed
the Gorecki action in its entirety: Gorecki v. Canada (Attorney General), [2006] O.J. No. 1130; 265 D.L.R. (4th) 206.
Issue
[16]
The issue raised in this motion is whether the
Claim should be struck for failure to disclose a reasonable cause of action or
for abuse of process.
Relevant Legislation
[17]
The legislation relevant to this motion is as
follows:
1.
Canada Pension
Plan, R.S.C. 1985, c. C-8; and
2.
Federal Court
Rules, SOR/98-106.
The relevant provisions of this legislation are set out in the
Appendix to these Reasons.
Analysis
Issue: Should the Claim be struck because it is plain and obvious that the
proposed class action commenced by the Claim must fail?
[18]
In Prentice v. Canada, [2006] 3 F.C.R. 135, the
Federal Court of Appeal discussed at page 150 the Court’s discretion to
order that a pleading be struck out under paragraph 221(1)(a) of the Federal
Courts Rules on the ground that it discloses no reasonable cause of action:
¶23
A motion to strike a pleading under
paragraph 221(1)(a) of the Federal
Courts Rules […] on the ground that it discloses no reasonable cause
of action will be allowed only if, assuming the facts alleged in the statement
of claim to be true, the judge concludes that the outcome of the case is
"plain and obvious" or "beyond reasonable doubt" (see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959,
Wilson J. at page 980). It is clear from what Madam Justice Wilson said that
the power to strike out pleadings must be exercised with considerable caution
and reluctance and that neither the length or complexity of the issues nor the
novelty of the cause of action should prevent a plaintiff from proceeding with
his or her action.
¶24 That
does not mean, however, that a party who advances an unprecedented cause of
action will have an easy time of it at the motion to strike stage. The
courts are certainly prepared to give such a party his or her day in court, but
the cause of action, novel as it may be, must still have some chance of being
recognized at the end of the road. A cause of action is not
"reasonable" simply because it has not yet been explored. The
courts must not naively assume that something novel is or may be part of the
normal course of evolution in the law. For instance, in order to determine
whether a case arises out of an employer-employee relationships, the facts
giving rise to the dispute must be considered, and not the
"characterization of the wrong" alleged; otherwise, "innovative
pleaders" could "evade the legislative prohibition on parallel court
actions by raising new and imaginative causes of action" (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at
paragraph 49; Vaughan v. Canada, [2005] 1
S.C.R. 146, at paragraph 11 and Canada (House of Commons)
v. Vaid, [2005] 1 S.C.R. 667, at paragraph 93). In Vaughan, according to Mr. Justice Binnie, the
appellant had undoubtedly felt obliged "to frame his action, with a degree
of artificiality, in the tort of negligence" (paragraph 11) to
circumnavigate the Crown Liability and Proceedings Act,
which did not stop the Court from striking the action brought on a preliminary
motion.
[Emphasis
added]
[19]
The defendant argues that it is plain and
obvious that the plaintiff’s Claim, which alleges a breach of statutory
contract, breach of “statutory duty” and breach of “statutory right”, does not
disclose a reasonable cause of action.
Breach of
statutory contract
[20]
The defendant argues that statutes do not create
contractual relations between the Crown and its citizens. The public law
relationship between Parliament and citizens is governed by public law rules,
rather than the private law rules of contract. Even if a breach of statutory
contract were actionable, the Plan does not include the provision which the
plaintiff alleges to have been breached: the Plan does not provide for the
payment of interest on retroactive benefits.
Breach of
statutory duty and statutory right
[21]
The defendant argues that there is no tort of
breach of statutory duty or right. The Supreme Court of Canada held in Canada
v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 that breach of a statutory
provision may be evidence of the standard of care in a suit against a public
officer in negligence, and that the civil consequences of breach of statute
should be subsumed in the law of negligence. Negligence was not pleaded in this
Claim.
Alternative
remedies
[22]
As noted above, the Minister refused to pay
interest on the retroactive amount in a letter dated March 21, 2003. The
Minister has taken the position that there is no legislative authority for the
payment of interest on retroactive awards under the Plan. The defendant seeks
to strike the Claim on the basis that the plaintiff has failed to pursue the
appellate procedure set out by Parliament in sections 81 to 83 of the Plan. Nor
has the plaintiff pursued judicial review remedies in respect of the Minister’s
decision not to award interest.
[23]
In support of his argument that there is
legislative authority for the payment of interest on retroactive payments, the
plaintiff relies on subsection 66(4) of the Plan, which provides as follows:
|
Where person denied benefit due to departmental error, etc.
66. […]
(4) Where the Minister is satisfied that, as a result of erroneous
advice or administrative error in the administration of this Act, any person
has been denied
(a) a benefit, or portion thereof, to which that person would have been
entitled under this Act,
(b) a division of unadjusted pensionable earnings under section 55 or
55.1, or
(c) an assignment of a retirement pension under section 65.1,
the Minister shall take such remedial action as the Minister considers
appropriate to place the person in the position that the person would be in
under this Act had the erroneous advice not been given or the administrative
error not been made.
|
Refus d’une prestation en raison d’une
erreur administrative
66. […]
(4) Dans le cas où le ministre est convaincu qu’un avis
erroné ou une erreur administrative survenus dans le cadre de l’application
de la présente loi a eu pour résultat que soit refusé à cette personne, selon
le cas :
a) en tout ou en partie, une prestation à laquelle elle
aurait eu droit en vertu de la présente loi,
b) le partage des gains non ajustés ouvrant droit à
pension en application de l’article 55 ou 55.1,
c) la cession d’une pension de retraite conformément à
l’article 65.1,
le ministre prend les mesures correctives
qu’il estime indiquées pour placer la personne en question dans la situation
où cette dernière se retrouverait sous l’autorité de la présente loi s’il n’y
avait pas eu avis erroné ou erreur administrative.
|
Gorecki Decision of the Ontario
Court of Appeal
[24]
In Gorecki, above, the Ontario Court of Appeal dismissed a
proposed class action for not disclosing a reasonable cause of action with
respect to a claim for interest on a lump sum retroactive payment for a Canada
Pension Plan disability pension. In the course of that decision, Mr. Justice
Sharpe gave a succinct and excellent explanation of the Plan at paragraph 5:
¶
5. It is common ground that the CPP is a comprehensive
statutory scheme designed to provide contributors and their families with
certain minimum levels of income in the event of retirement, death, or
disability. The benefits payable, the contributions required, and the terms of
entitlement are specified in the Canada Pension
Plan, R.S. 1985, c. C-8 (the "Act").
The CPP is funded entirely by the contributions made by employees and employers
and all funds are pooled with no individual accounts. CPP funds can only be used
to pay benefits and administer the plan; transfers to or from other government
accounts are prohibited. If a claim for a CPP benefit is denied, the Act
provides a scheme of appeals to: (1) the Minister; (2) the Review Tribunal; (3)
the Pension Appeals Board; and, (4) judicial review before the Federal Court of
Appeal. The Act makes no provision for the payment of interest on benefits,
although it does provide for interest in the case of under- or over-payment of
contributions (see ss. 21(6), 34(2), 38(7), 108(2)(f)). Section 60(1) provides
that no benefit can be paid unless the benefit has been approved under the Act.
[25]
However, the parties in Gorecki obviously
did not refer the Court of Appeal to subsection 66(4) of the Plan because Mr.
Justice Sharpe held at paragraph 7:
¶7.
… The CPP is a complete statutory code that makes no
provision for the payment of interest on benefits where there is a delay
between the date on which the beneficiary became entitled to the benefit and
the date on which the benefit was paid. It has been held that where a
comprehensive statutory scheme does not provide for the payment of interest by
the Crown, no interest is payable…
In fact, subsection 66(4) of the Plan gives the
Minister broad powers to take remedial action to place a person in a position
that the person would have been in had that person not been denied a pension
benefit as a result of “erroneous advice” or an “administrative error”. That
remedial action can include interest, as held by the Federal Court of Appeal in
the decision referred to below.
Scheuneman Decision of the Federal Court of Appeal
[26]
In Scheuneman v. Canada
(Human Resources Development), 2005 FCA 254, the Federal Court of
Appeal considered the availability under subsection 66(4) of interest arising out
of retroactive benefits paid under the Plan.
[27]
I brought Scheuneman to the attention of
counsel for both parties. Neither counsel was aware of this case, which the
Court considers directly pertinent.
[28]
In Scheuneman, the appellant’s disability
benefits were terminated because of an administrative error, and his benefits
were reinstated as a remedy under subsection 66(4) of the Plan. The appellant
nevertheless pursued an action in damages because he did not consider the
reinstatement of benefits to be an adequate remedy. The appellant alleged that
the Minister acted negligently and violated his rights under section 7 of the
Charter.
[29]
Justice O’Reilly, the trial judge,
dismissed the action in Scheuneman v. Canada (Human Resources Development), 2004 FC 1084.
[30]
The Federal Court of Appeal agreed with Justice
O’Reilly’s analysis of the negligence claim and discussed the availability of
alternative remedies under subsection 66(4):
¶46 The
Judge found an adequate alternative remedy in the authority of the Minister
under subsection 66(4) of the Canada Pension Plan to "take such remedial
action as the Minister considers appropriate to place the person in the
position that the person would be in under this Act had the ... administrative
error not been made." He pointed out that any decision of the Minister
under that provision would be subject to judicial review in the Federal Court. When
Mr. Scheuneman's benefits were reinstated with retroactive effect, he benefited
from subsection 66(4) of the Canada Pension Plan, thus achieving the principal goal he sought
in his action.
¶47 I
agree with the Judge that, as a matter of public policy, the existence of
subsection 66(4) of the Canada Pension Plan should be taken to preclude a tort claim
based on an administrative error that results in an incorrect termination of
disability benefits. For that reason, I must conclude that the Judge was
correct to dismiss the claim for damages for negligence.
¶48 The
record establishes beyond doubt that Mr. Scheuneman's disability benefits were
terminated because of an administrative error, and that his benefits were
reinstated as a remedy under subsection 66(4) of the Canada Pension Plan. Mr.
Scheuneman nevertheless continued his action for damages because he considered
the reinstatement of benefits not to be an adequate remedy. Unfortunately
for Mr. Scheuneman, this Court does not have the jurisdiction, in the context
of this appeal, to compel the Minister to reconsider that remedy. However, it
remains open to Mr. Scheuneman to ask the Minister to reconsider the remedy on
the basis that the reinstatement of benefits did not place him in the position
he would have been in if the administrative error had not been made.
¶49 In
that regard, it appears that the Minister has taken the position that the most
that can be done for a claimant under subsection 66(4) of the Canada Pension Plan, in the
case of wrongfully terminated benefits, is to reinstate the benefits with
retroactive effect. However, that does not take into account the decision of
this Court in Whitton v. Canada (Attorney General) (C.A.), [2002] 4 F.C.
126, which suggests that remedial provisions like subsection 66(4) contemplate
a broader range of remedies.
¶50 Whitton
dealt with a remedial provision in section 32 of the Old Age Security Act,
R.S.C. 1985, c. O-9, that uses substantially the same language as subsection
66(4) of the Canada Pension Plan, in that it requires the Minister to take
"such remedial action as the Minister considers appropriate to place the
person that the person would be in under this Act had ... the administrative
error not been made." Benefits to which Mr. Whitton was legally entitled
had been wrongfully withheld. Mr. Whitton filed an application for judicial
review, seeking a writ of mandamus. The application failed at first instance,
but succeeded on appeal. Décary J.A., writing for the Court, made the following
comment about section 32 of the Old Age Security Act (at paragraph 37) […]:
[37] To conclude on this point, I will refer to section
32 of the Act, which was reproduced earlier. At this point, the Minister must
be satisfied that, as a result of erroneous advice, the appellant has been
denied benefits to which he would have been entitled. The Minister must take
the necessary action to place the appellant into the position he would be in,
had an administrative error not been made. The action that must be taken is to
reinstate the pension forthwith and repay the benefits that were suspended,
with interest.
[Emphasis added]
[31]
There is no automatic right to interest
on disability pension payments which have been delayed and for which the
disabled person is entitled to a retroactive pension payment. Moreover, the
Pension Appeals Board in granting the plaintiff a disability pension under the
Plan has no authority to award interest. However, following the Federal Court
of Appeal’s statement in Scheuneman, above, and its reference to similar
provisions considered in Whitton, it may be possible for the plaintiff
to obtain a favourable decision from the Minister under subsection 66(4) of the
Plan. As the Court of Appeal indicated in Scheuneman, it is necessary
for the disabled person to seek interest from the Minister, and the Minister
has the legislative authority under subsection 66(4) of the Plan to “take such
remedial action as the Minister considers appropriate to place the person in
the position that the person would be in under the Act” had there not been an administrative
error made or erroneous advice received.
[32]
Based on the jurisprudence, I advised the
parties that this Court has no jurisdiction by way of an action to consider
this matter. The proper course of proceeding, as discussed by the Federal Court
of Appeal in Scheuneman, above, is:
1.
the plaintiff asks that the Minister consider remedial action under
subsection 66(4) of the Plan not to award interest on the retroactive pension
payment; and
2.
if the Minister denies the request for interest, the plaintiff can
commence an application for judicial review of that decision in this Court
under section 18.1 of the Federal Courts Act.
Request for adjournment of this motion to strike
[33]
After the Court indicated its views during the
course of the hearing, the plaintiff requested that the Court adjourn this
motion to strike so that the plaintiff can make a proper request to the
Minister for interest under subsection 66(4) of the Plan, and if the Minister
denies such a request, the plaintiff can commence an application for judicial
review in this Court. The reason for the adjournment of the motion to strike is
because the plaintiff wishes to preserve his work in progress and preparation
in having commenced the first proposed class action in the Federal Court on
this subject. This is a relevant factor in determining which plaintiff and
which team of solicitors should be given carriage of a proposed class action
when there are competing proposed class actions over the same subject. For this
reason, counsel for the moving party, the defendant, consented to the
adjournment of the motion to strike on this basis recognizing that the Court
would issue Reasons for Order which would explain the basis for the
adjournment, the proper procedure for the plaintiff under subsection 66(4) of
the Plan, and the Court’s position with respect to the motion to strike this
action. The plaintiff proposes to commence an application for judicial review
if necessary and to then convert the application for judicial review into a
proposed class action. The jurisprudence of this Court is that a proposed class
action is a relevant factor for the Court to consider in a motion to convert an
application for judicial review into an action. This ensures that the class
action rules are not frustrated because a party must commence an application
for judicial review, and the class action rules do not apply to applications
for judicial review.
Conclusion
[34]
For these reasons, the defendant’s motion is
adjourned sine die.
ORDER
THIS
COURT ORDERS that:
On consent, this motion to strike the plaintiff’s amended statement
of claim is adjourned sine die.
“Michael
A. Kelen”
Appendix
1. Canada
Pension Plan, R.S.C. 1985, c. C-8
|
DIVISION C
PAYMENT OF BENEFITS: GENERAL PROVISIONS
Application
for benefit
60. (1) No benefit is payable to any person under
this Act unless an application therefor has been made by him or on his behalf
and payment of the benefit has been approved under this Act.
[…]
Where person denied benefit due
to departmental error, etc.
66. […]
(4) Where the Minister is satisfied that, as a result of erroneous
advice or administrative error in the administration of this Act, any person
has been denied
(a) a benefit, or portion thereof, to which that person would have been
entitled under this Act,
(b) a division of unadjusted pensionable earnings under section 55 or 55.1,
or
(c) an assignment of a retirement pension under section 65.1,
the Minister shall take such remedial action as the Minister considers
appropriate to place the person in the position that the person would be in
under this Act had the erroneous advice not been given or the administrative
error not been made.
[…]
DIVISION F
RECONSIDERATIONS AND APPEALS
Appeal
to Minister
81. (1) Where
[…]
(b) an applicant is dissatisfied with any decision made under section
60,
[…]
the dissatisfied party or, subject to the regulations, any person on
behalf thereof may, within ninety days after the day on which the
dissatisfied party was notified in the prescribed manner of the decision or
determination, or within such longer period as the Minister may either before
or after the expiration of those ninety days allow, make a request to the
Minister in the prescribed form and manner for a reconsideration of that
decision or determination.
Reconsideration by Minister and decision
(2) The Minister shall forthwith reconsider any decision or
determination referred to in subsection (1) and may confirm or vary it, and
may approve payment of a benefit, determine the amount of a benefit or
determine that no benefit is payable, and shall thereupon in writing notify
the party who made the request under subsection (1) of the Minister’s
decision and of the reasons therefor.
Appeal
to Review Tribunal
82. (1) A party who is dissatisfied with a decision of the
Minister made under section 81 or subsection 84(2), or a person who is
dissatisfied with a decision of the Minister made under subsection 27.1(2) of
the Old Age Security Act, or, subject to the regulations, any person
on their behalf, may appeal the decision to a Review Tribunal in writing
within 90 days, or any longer period that the Commissioner of Review
Tribunals may, either before or after the expiration of those 90 days, allow,
after the day on which the party was notified in the prescribed manner of the
decision or the person was notified in writing of the Minister’s decision and
of the reasons for it.
[…]
Powers of Review Tribunal
(11) A Review Tribunal may confirm or vary a decision of the Minister
made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old
Age Security Act and may take any action in relation to any of those
decisions that might have been taken by the Minister under that section or
either of those subsections, and the Commissioner of Review Tribunals shall
thereupon notify the Minister and the other parties to the appeal of the
Review Tribunal’s decision and of the reasons for its decision.
[…]
Appeal to Pension Appeals Board
83. (1) A party or, subject to the regulations, any person on
behalf thereof, or the Minister, if dissatisfied with a decision of a Review
Tribunal made under section 82, other than a decision made in respect of an
appeal referred to in subsection 28(1) of the Old Age Security Act, or
under subsection 84(2), may, within ninety days after the day on which that
decision was communicated to the party or Minister, or within such longer
period as the Chairman or Vice-Chairman of the Pension Appeals Board may
either before or after the expiration of those ninety days allow, apply in
writing to the Chairman or Vice-Chairman for leave to appeal that decision to
the Pension Appeals Board.
[…]
Powers of Pension Appeals Board
(11) The Pension Appeals Board may confirm or vary a decision of a
Review Tribunal under section 82 or subsection 84(2) and may take any action
in relation thereto that might have been taken by the Review Tribunal under
section 82 or subsection 84(2), and shall thereupon notify in writing the
parties to the appeal of its decision and of its reasons therefor.
Authority to
determine questions of law and fact
84. (1) A Review Tribunal and the Pension Appeals Board have
authority to determine any question of law or fact as to
(a) whether any benefit is payable to a person,
(b) the amount of any such benefit,
(c) whether any person is eligible for a division of unadjusted
pensionable earnings,
(d) the amount of that division,
(e) whether any person is eligible for an assignment of a contributor’s
retirement pension, or
(f) the amount of that assignment,
and the decision of a Review Tribunal, except as provided in this Act,
or the decision of the Pension Appeals Board, except for judicial review
under the Federal Courts Act, as the case may be, is final and binding
for all purposes of this Act.
|
SECTION C
PAIEMENT DES PRESTATIONS : DISPOSITIONS
GÉNÉRALES
Demande de prestation
60. (1)
Aucune prestation n’est payable à une personne sous le régime de la présente
loi, sauf si demande en a été faite par elle ou en son nom et que le paiement
en ait été approuvé selon la présente loi.
[…]
Refus d’une prestation en raison d’une
erreur administrative
66. […]
(4) Dans le cas où le ministre est convaincu qu’un avis
erroné ou une erreur administrative survenus dans le cadre de l’application
de la présente loi a eu pour résultat que soit refusé à cette personne, selon
le cas :
a) en tout ou en partie, une prestation à laquelle elle
aurait eu droit en vertu de la présente loi,
b) le partage des gains non ajustés ouvrant droit à
pension en application de l’article 55 ou 55.1,
c) la cession d’une pension de retraite conformément à
l’article 65.1,
le ministre prend les mesures correctives qu’il estime
indiquées pour placer la personne en question dans la situation où cette
dernière se retrouverait sous l’autorité de la présente loi s’il n’y avait
pas eu avis erroné ou erreur administrative.
[…]
SECTION F
RÉVISIONS ET APPELS
Appel au ministre
81. (1)
Dans les cas où :
[…]
b) un requérant n’est pas satisfait d’une décision rendue en
application de l’article 60,
[…]
ceux-ci peuvent, ou,
sous réserve des règlements, quiconque de leur part, peut, dans les
quatre-vingt-dix jours suivant le jour où ils sont, de la manière prescrite,
avisés de la décision ou de l’arrêt, ou dans tel délai plus long qu’autorise
le ministre avant ou après l’expiration de ces quatre-vingt-dix jours,
demander par écrit à celui-ci, selon les modalités prescrites, de réviser la
décision ou l’arrêt.
Décision et reconsidération par le
ministre
(2) Le ministre reconsidère sur-le-champ toute décision ou tout arrêt
visé au paragraphe (1) et il peut confirmer ou modifier cette décision ou
arrêt; il peut approuver le paiement d’une prestation et en fixer le montant,
de même qu’il peut arrêter qu’aucune prestation n’est payable et il doit dès
lors aviser par écrit de sa décision motivée la personne qui a présenté la
demande en vertu du paragraphe (1).
Appel au tribunal de révision
82. (1) La personne qui se croit lésée par une décision du ministre
rendue en application de l’article 81 ou du paragraphe 84(2) ou celle qui se
croit lésée par une décision du ministre rendue en application du paragraphe
27.1(2) de la Loi sur la sécurité de la vieillesse ou, sous réserve
des règlements, quiconque de sa part, peut interjeter appel par écrit auprès
d’un tribunal de révision de la décision du ministre soit dans les
quatre-vingt-dix jours suivant le jour où la première personne est, de la manière
prescrite, avisée de cette décision, ou, selon le cas, suivant le jour où le
ministre notifie à la deuxième personne sa décision et ses motifs, soit dans
le délai plus long autorisé par le commissaire des tribunaux de révision
avant ou après l’expiration des quatre-vingt-dix jours.
Pouvoirs du tribunal de révision
(11) Un tribunal de révision peut confirmer ou modifier une décision
du ministre prise en vertu de l’article 81 ou du paragraphe 84(2) ou en vertu
du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il
peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en
application de ces dispositions; le commissaire des tribunaux de révision
doit aussitôt donner un avis écrit de la décision du tribunal et des motifs
la justifiant au ministre ainsi qu’aux parties à l’appel.
[…]
Appel à la Commission d’appel des pensions
83. (1) La
personne qui se croit lésée par une décision du tribunal de révision rendue
en application de l’article 82 — autre qu’une décision portant sur l’appel
prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse —
ou du paragraphe 84(2), ou, sous réserve des règlements, quiconque de sa
part, de même que le ministre, peuvent présenter, soit dans les
quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision
est transmise à la personne ou au ministre, soit dans tel délai plus long
qu’autorise le président ou le vice-président de la Commission d’appel des
pensions avant ou après l’expiration de ces quatre-vingt-dix jours, une
demande écrite au président ou au vice-président de la Commission d’appel des
pensions, afin d’obtenir la permission d’interjeter un appel de la décision
du tribunal de révision auprès de la Commission.
[…]
Pouvoirs de la Commission d’appel des pensions
(11) La Commission d’appel des pensions peut confirmer ou modifier une
décision d’un tribunal de révision prise en vertu de l’article 82 ou du
paragraphe 84(2) et elle peut, à cet égard, prendre toute mesure que le
tribunal de révision aurait pu prendre en application de ces dispositions et
en outre, elle doit aussitôt donner un avis écrit de sa décision et des
motifs la justifiant à toutes les parties à cet appel.
Décision sur les questions de droit et de
fait
84. (1) Un
tribunal de révision et la Commission d’appel des pensions ont autorité pour
décider des questions de droit ou de fait concernant :
a) la question de savoir si une prestation est payable à une
personne;
b) le montant de cette prestation;
c) la question de savoir si une personne est admissible à un
partage des gains non ajustés ouvrant droit à pension;
d) le montant de ce partage;
e) la question de savoir si une personne est admissible à
bénéficier de la cession de la pension de retraite d’un cotisant;
f) le montant de cette cession.
La décision du tribunal
de révision, sauf disposition contraire de la présente loi, ou celle de la
Commission d’appel des pensions, sauf contrôle judiciaire dont elle peut
faire l’objet aux termes de la Loi sur les Cours fédérales, est
définitive et obligatoire pour l’application de la présente loi.
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2. Federal Court Rules, SOR/98-106
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STRIKING OUT PLEADINGS
Motion to strike
221.
(1) On motion, the Court may, at any
time, order that a pleading, or anything contained therein, be struck out,
with or without leave to amend, on the ground that it
(a) discloses no
reasonable cause of action or defence, as the case may be,
(b) is immaterial or
redundant,
(c) is scandalous,
frivolous or vexatious,
(d) may prejudice or
delay the fair trial of the action,
(e) constitutes a
departure from a previous pleading, or
(f) is otherwise an
abuse of the process of the Court,
and may
order the action be dismissed or judgment entered accordingly.
Evidence
(2) No evidence shall be heard on a motion for an order under
paragraph (1)(a).
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Radiation
d’actes de procédure
Requête en radiation
221. (1) À tout moment, la Cour peut, sur requête, ordonner la
radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation
de le modifier, au motif, selon le cas :
a) qu’il ne révèle aucune cause d’action ou de défense valable;
b) qu’il n’est pas pertinent ou qu’il est redondant;
c) qu’il est scandaleux, frivole ou vexatoire;
d) qu’il risque de nuire à l’instruction équitable de l’action ou
de la retarder;
e) qu’il diverge d’un acte de procédure antérieur;
f) qu’il constitue autrement un abus de procédure.
Elle peut aussi ordonner que l’action soit rejetée ou qu’un
jugement soit enregistré en conséquence.
Preuve
(2) Aucune preuve n’est admissible dans le
cadre d’une requête invoquant le motif visé à l’alinéa (1)a).
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