Date: 20070419
Docket: T-1344-06
Citation: 2007 FC 417
BETWEEN:
SYLVIA
STREZOV
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR
ORDER
MACTAVISH J.
Let the attached certified transcript
of my Reasons for Order delivered orally from the Bench at Oshawa, Ontario on
the 16th day of April, 2007, now edited as to grammar and syntax, be
filed to comply with section 51 of the Federal Court Act.
“Anne
Mactavish”
Ottawa, Ontario
April
19, 2007
Oshawa, Ontario
--- Upon commencing this excerpt on Monday,
April 16, 2007 at 10:48 a.m.
THE REGISTRAR: The Court is now
resumed.
DECISION FROM THE BENCH:
JUSTICE MACTAVISH: Thank you.
This is a most unfortunate case where what started as a simple request for
information on the part of Ms Strezov resulted in a loss of pension credits for
the period of Ms Strezov's marriage.
The facts of this case are not in
dispute. Sylvia Strezov was married to Luben Strezov on October 4, 1981. The
couple separated in January of 1990 and their divorce became final on March 21,
1992.
It is not disputed that on March 8
of 2004, Ms Strezov attended at the offices of Human Resources and Skills
Development Canada in Scarborough to inquire about her entitlement to a share
of her now-deceased ex-husband's pension.
Ms Strezov brought with her a
completed application for credit splitting and a copy of her divorce decree.
Ms Strezov spoke to an HRSDC officer by the name of Sheila.
Once again, there is no dispute
that Ms Strezov told Sheila about her divorce from Luben and provided Sheila
with social insurance numbers for both herself and Luben. Ms Strezov left a
completed application for credit splitting with Sheila, along with a copy of
her divorce judgment.
At the same time there is no
dispute that Sheila told Ms Strezov that her application for credit splitting
would only be proceeded with in the event that it was determined to be to Ms
Strezov's advantage.
Ms Strezov was therefore
understandably very upset when a few weeks later she was notified that the
division of her and Luben's pension credits had been carried out, which had the
effect of reducing her pensionable earnings for the period of her marriage and,
with that, her potential future entitlement to Canada Pension Plan benefits.
Ms Strezov appealed this decision
to the review tribunal, although it appears that this appeal has not been
pursued. Instead, Ms Strezov sought to have this matter reviewed in accordance
with subsection 66(4) of the Canada Pension Plan on the basis that she had been
provided with erroneous advice or information by Sheila.
Subsection 66(4) of the plan
provides that:
"Where the Minister is
satisfied that, as a result of erroneous advice or administrative error in the
adminstration of this act, any person has been denied, (a) a benefit or portion
thereof to which the pension 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 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."
An investigation into this matter
was then carried out by HRSDC. By letter dated June 30, 2006, Ms. Strezov was
advised that although HRSDC acknowledged having provided Ms Strezov with
erroneous information on March 8, 2004, she was nonetheless not entitled to any
relief as it was the department's position that credit splitting was mandatory
as soon as the department was advised of the divorce.
Moreover, it was not possible for
Ms Strezov to withdraw her application once it was determined that credit
splitting did not operate to her advantage.
As a consequence, it was
determined that Ms Strezov was not entitled to any relief under subsection
66(4) of the plan.
Ms Strezov now seeks judicial
review of that decision.
As I understand Ms Strezov's
position, she says that the Minister erred in refusing to reinstate her pension
credits, as she would not have left her application for pension splitting with
HRSDC in the first place but for the erroneous advice that she received from
Sheila, that she could withdraw her application if it turned out that credit
splitting did not operate to her advantage.
Ms Strezov says that she should
not be penalized for the erroneous advice provided to her by the department.
I am very sympathetic to Ms
Strezov and understand how frustrated she must be by what has gone on in this
case. However, sympathy alone unfortunately does not provide a sufficient
basis for me to set aside the decision of the Minister.
Subsection 66(4) of the plan
allows the Minister to take remedial action in some, but not all, cases where an
individual has been provided with erroneous advice by department officials.
That is, in order to be entitled
to Ministerial relief, it is not enough that the person was provided with
erroneous advice. In addition, the person must also have been denied a benefit
to which they were entitled, have been denied a division of pension credits, or
have been denied an assignment of a retirement pension.
In this case, while there is no
dispute that Ms Strezov was provided with erroneous advice, she has not been
denied a benefit to which she was otherwise entitled.
That is, the case law under
section 55.1(1)(a) of the Canada Pension Plan is quite clear: These provisions
are mandatory, and the division of pensionable earnings is to be the rule and
not the exception.
The Minister has no discretion in
exercising his authority under this provision - in this regard, I refer to
cases such as the decision of the Federal Court of Appeal in the Minister of
Health and Human Resources Development v. Wiemer, [1998] FCJ 809 - unless
one can bring one's self within one of the enumerated exceptions, none of which
apply here.
Moreover, the wording of section
55.1(1)(a) is itself clear that once the Minister is made aware of the fact
that a contributor to the Plan has been divorced, then a division of
pensionable credits between the contributor and his or her spouse is mandatory.
This was so in Ms Strezov's case,
quite irrespective of whatever bad advice she may have been given by Sheila in
March of 2004.
Thus, while Ms Strezov clearly
went to the departmental office simply seeking information, once she told
Sheila about her divorce from Luben and provided Sheila with her social
insurance number and that of Luben, HRSDC had no choice but to carry out the
division of pension credits, whether it worked to Ms Strezov's advantage or
not.
This would also have been the case
even if the erroneous advice had never been provided to Ms Strezov by Sheila.
While the Minister does have the
power to grant relief under subsection 66(4) where someone has been given
erroneous advice, the Minister can only do so where the effect of the erroneous
advice is to deny the individual a benefit, including a division of pensionable
earnings, to which the person would otherwise have been entitled.
In this case, Ms Strezov has not
been denied a benefit to which she was otherwise entitled, nor has she been
denied a division of pensionable earnings.
Accordingly, the Minister was
correct to deny Ms Strezov's application for relief under subsection 66(4) of
the Canada Pension Plan.
Thus, while I am indeed
sympathetic to the situation that Ms Strezov finds herself in, in the absence
of any error in the decision refusing relief under subsection 66(4) of the
Canada Pension Plan, I have no alternative but to dismiss Ms Strezov's
application for judicial review.
As I explained in the course of
the hearing, in the normal course, a successful party is awarded their costs of
an application.
In this case, the Minister is not
seeking costs, and given what has gone on in this case, I am in complete
agreement with the Minister. This is not an appropriate case to award the
Minister his costs and I am denying the Minister his costs of this application.
Thank you, very much. We are
adjourned.
MR. GRAY: Thank you, my lady.
MS STREZOV: Thank you, very much.
THE REGISTRAR: This special
sitting of the Federal Court is now concluded.
--- Whereupon the excerpt concluded at 10:59
a.m. on Monday, April 16, 2007.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1344-06
STYLE OF CAUSE: SYLVIA
STREZOV v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Oshawa, Ontario
DATE OF HEARING: April 16, 2007
REASONS FOR ORDER: Mactavish, J.
DATED: April 19, 2007
APPEARANCES:
Sylvia Strezov
FOR THE APPLICANT
James Gray
FOR THE RESPONDENT
SOLICITORS
OF RECORD:
SYLVIA STREZOV
(Self represented litigant) FOR THE
APPLICANT
Pickering,
Ontario
John H. Sims,
Q.C.
Deputy Attorney
General of Canada FOR
THE RESPONDENT
Department of
Justice, Legal Services
Human Resources
and Social Development
Ottawa, Ontario
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