[1] This is an appeal from a decision by Hugessen J. of the Federal Court, 2004 FC 155, February 4, 2004, dismissing the appellant's motion to bring a class action as a representative of the following class: all natural persons in Canada, aged 65 and over, eligible to receive the Guaranteed Income Supplement under the Old Age Security Act, R.S.C. 1985, c. O-9 (the Act) and that did not receive it, as well as the heirs and/or representatives of deceased persons who would have been members of that class.

[2] Before proceeding, a few words regarding the Canada Pension Plan are in order to put the debate in context. The respondent, Department of Human Resources Development Canada, is responsible for the administration of the Act and income security programs provided under that Act.

[3] These were established pursuant to two statutes, namely the Canada Pension Plan, R.S.C. 1985, c. C-8, and the Act. The provisions of the Act govern the Old Age Security Pension program, which include the following benefits: the Old Age Security Pension (the Pension), the Supplement and the Spouses Allowance. The purposes of the Supplement and the Spouses Allowance is to ensure a minimum income to eligible individuals.

[4] The Pension is paid to individuals 65 years of age and older who apply for it and who meet the requirements of the Act and, accordingly, it is universal. As for the Supplement, it is paid monthly to low income individuals 65 years of age and older, who apply for it and who meet the requirements of the Act.

[5] Rules 299.1 to 299.41 of the Federal Court Rules, 1998, which govern the procedure applicable to class actions filed before the Federal Court, came into effect on December 4, 2002. For the purposes of the appeal, it is sufficient to reproduce subsection 299.18(1), which lists the conditions that must be met to be certified by a Federal Court judge:

299.18 (1) Subject to subsection (3), a judge shall certify an action as a class action if:

(a) the pleadings disclose a reasonable cause of action;

(b) there is an identifiable class of two or more persons;

©) the claims of the class members raise common questions of law or fact, whether or not those common questions predominate over questions affecting only individual members;

(d) a class action is the preferable procedure for the fair and efficient resolution of the common questions of law or fact; and

(e) there is a representative plaintiff who

(I) would fairly and adequately represent the interests of the class,

(ii) has prepared a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying class members how the proceeding is progressing,

(iii) does not have, on the common questions of law or fact, an interest that is in conflict with the interests of other class members, and

(iv) provides a summary of any agreements respecting fees and disbursements between the representative plaintiff and the representative plaintiff's solicitor.

[Emphasis added.]

299.18 (1) Sous réserve du paragraphe (3), le juge autorise une action comme recours collectif si les conditions suivantes sont réunies :

a) les actes de procédure révèlent une cause d'action valable;

b) il existe un groupe identifiable formé d'au moins deux personnes;

c) les réclamations des membres du groupe soulèvent des points de droit ou de fait collectifs, qu'ils prédominent ou non sur ceux qui ne concernent qu'un membre;

d) le recours collectif est le meilleur moyen de régler de façon équitable et efficace les points de droit ou de fait collectifs;

e) un des membres du groupe peut agir comme représentant demandeur et, à ce titre :

(I) représenterait de façon équitable et appropriée les intérêts du groupe,

(ii) a élaboré un plan qui propose une méthode efficace pour poursuivre l'action au nom du groupe et tenir les membres du groupe informés du déroulement de l'instance,

(iii) n'a pas de conflit d'intérêts avec d'autres membres du groupe en ce qui concerne les points de droit ou de fait collectifs,

(iv) communique un sommaire des ententes relatives aux honoraires et débours qui sont intervenues entre lui et son avocat.

[Le souligné est le mien]

[6] Hugessen J. dismissed the plaintiff's motion because in his opinion the first of the conditions set out in paragraph 299.18(1)(a) had not been met, i.e. the pleadings did not disclose any reasonable cause of action.

[7] The parties do not disagree about the test to satisfy for the purposes of paragraph 299.18(1)(a). At paragraphe 23 of his reasons, Hugessen J. describes it as follows:

[23] The test to be met at this stage is the same as that applied to the striking out of pleadings. As the British Columbia Court of Appeal indicated in Elms v. Laurentian Bank of Canada, [2001] B.C. J. No. 1284:

20. It is common ground that the Chambers judge correctly stated that a court will only refuse to certify on the basis that the pleadings do not disclose a cause of action if it is plain and obvious that the plaintiff cannot succeed. The test under s. 4(1)(a) of the Act to determine whether a cause of action exists is similar to the test applied in application to dismiss a claim on the grounds that it fails to disclose a cause of action. The only difference between the two tests is that the onus to show a cause of action falls upon the party bringing the class action, rather than on the party challenging the proceeding.

[Emphasis added.]

[8] The test is therefore similar, except with respect to the burden of proof, to the test that applies in the context of a motion to strike out filed under paragraph 221(1)(a) of the Rules of this Court, which provides as follows:

222. (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,

[Emphasis added]

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 la modifier, au motif, selon le cas :

a) qu'il ne révèle aucune cause d'action ou de défense valable;

[Le souligné est le mien]

[9] The test to apply for the purposes of a motion to strike out a statement of claim is whether it is "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action. In Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, the Supreme Court of Canada, per Wilson J., set out the applicable test as follows at page 980:

Most recently, in Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, I made clear at p. 280 that it was my view that the test set out in Inuit Tapirisat was the correct test. The test remained whether the outcome of the case was "plain and obvious" or "beyond reasonable doubt".

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

[Emphasis added.]

[10] The appellant is asking us to intervene on the grounds that the trial judge erred in law in finding that the proceedings did not disclose any reasonable cause of action. Specifically, the appellant submits that the judge misapprehended the cause of action based on subsection 15(1) of the Charter and, more particularly, in his analysis of the steps to assess the conditions necessary to support his claims of discrimination.

[11] It goes without saying that the respondents do not share the appellant's opinion. According to them, the judge did not err at all in finding as he did. They submit that the trial judge applied the appropriate test and that he was correct in refusing to grant the certification sought by the appellant.

[12] Neither the appellant nor the respondents, in their memorandums or before us at the hearing, focussed on the meaning of the words "the pleadings" and "les actes de procédure", found in paragraph 299.18(1)(a). These words seems to me to be of utmost importance, since the reasonable cause of action must be assessed only in terms of the pleadings.

[13] Section 2 of our Court's Rules defines the word "pleadings" ("acte de procédure") as follows: " means a document in a proceeding in which a claim is initiated, defined, defended or answered". In the French version, the expression "acte de procédure"is defined as follows: "acte par lequel une instance est introduite, les prétentions des parties sont énoncées ou une réponse est donnée".

[14] Section 171 provides that in the context of an action, the parties may file the following pleadings: a statement of claim, a statement of defence and a reply. As for section 174, it provides that every pleading must contain a concise statement of the material facts relied on by the parties, but that it must not contain the evidence supporting those facts. Section 175, incidentally, provides that a party can raise any points of law in a pleading.

[15] In Cae Machinery Ltd. v. Valon Kone Brunette Ltd., Court docket T-1658-98, dated August 25, 1999, Prothonotary Hargrave determined that the pleadings do not include affidavits. At paragraph 27 of his reasons, he states the following:

[27] One aspect of particulars, which are produced pursuant to a demand, is that they are clearly pleadings or indeed, an amendment of the pleadings: see a discussion of this in Margem Chartering Co. v. The Bocsa, [1997] 2 F.C. 1001 at 1012. Now a pleading refers to a fairly limited number of specific documents. For example, the Federal Court Rules defines a pleading as:

. . . a document in a proceeding in which a claim was initiated, defined, defended, or answered. [Rule 2]

An affidavit and cross-examination on that affidavit does not become a pleading in the sense of defining or answering a claim: to hold so would allow pleadings to get completely out of hand, with the parties not knowing the case to be met, or how it had been answered. Indeed, that an affidavit is not a pleading is implicit in the concept that an affidavit may be ordered to stand as a pleading: see Volume 36 of Halsbury, 4th Edition, at paragraph 59, footnote 6.

[16] In Waterside Ocean Navigation Co. v. International Navigation Ltd., [1977] 2 F.C. 257, Associate Chief Justice Thurlow (as he then was), at paragraph 15 of his reasons (page 263), determined that a notice of a motion to strike out a statement of claim was not a pleading within the meaning of the Court Rules:

15. The submission was that the notice of motion was an answer to the statement of claim. Such a notice, however, is not a pleading in the ordinary sense and, in my view, it is not an answer to a pleading. Whether filed or not, it has no effect until the application of which it gives notice is made to the Court. Even if the application itself might conceivably be looked upon as a sort of answer to the claim, it is not a document and this, in my view, holds true whether or not the Court is requested to deal with the application without personal appearance under Rule 324. Accordingly, I am of the opinion that the plaintiff was entitled to amend under Rule 421(1) on November 3, 1976, and as no application has been made under Rule 422 to disallow the amendment, the amended statement of claim filed on that day stands as the statement of claim in the action.

[17] In Mennes v. Canada, [1991], F.C.J. No. 451 (Q.L.), Court docket T-289-91, dated May 17, 1991, Pinard J., dismissing a motion to strike out a claim filed under paragraph 419(1)(a) of the Federal Court Rules, CRC, vol. VI, c. 663 (that rule is now rule 221(1)(a) of the Federal Court Rules, 1998), determined that no evidence was admissible in support of such a motion.

[18] In Always Travel Inc. v. Air Canada, 2003 FCT 212, February 21, 2003, Hugessen J.,in the context of a motion to certify a class action, unequivocally stated at paragraph 6 of his reasons that determining the existence of a reasonable cause of action could be done solely by reference to the plaintiff's statement of claim:

[6] Three, in my view, not only is a statement of defence not essential to a determination of the issues which will have to be determined on the certification motion, it is very unlikely to be of any assistance whatever to the Court at that stage. As I read Rule 299.18, it defines and limits the questions to which the Court must respond on the certification motion and those questions can be answered solely by reference to the statement of claim and do not require that there be a statement of defence.

[19] In this case, the only pleadings filed are the appellant's statement of claim dated February 24, 2003, and the respondents' statement of defence dated March 24, 2003. The appellant's statement of claim is succinct and I reproduce all of it:

CAUSE OF ACTION

1. The plaintiff's cause of action is as follows: the plaintiff is seeking the reimbursement of all of the Guaranteed Income Supplement that he has not claimed since he became eligible, in the amount of $5,966.08;

2. The plaintiff is 75 years old and has received Old Age Security Pension since he became eligible;

3. Until March 2002, he had not received the Guaranteed Income Supplement despite the fact that he has a low income and has been eligible for that program since 1994;

4. He did not apply for the Guaranteed Income Supplement because he did not receive information from the defendants regarding the eligibility requirements of that program;

5. The defendants never informed the plaintiff that he should not include the Old Age Security Pension amount in his income for the purposes of eligibility for the Guaranteed Income Supplement;

6. The plaintiff did not know he was eligible for the Guaranteed Income Supplement until February 2002;

7. In fact, he found out by accident that he was eligible, since on February 4, 2002, his daughter Annick Le Corre gave him an instruction sheet on the Guaranteed Income Supplement;

8. Annick Le Corre learned of the information regarding her father's eligibility as an employee of a Bloc Québécois MP, during an information campaign to inform members of the group, following a report by a House of Commons committee on the phenomenon of under-subscription to the Guaranteed Income Supplement program;

9. Immediately after calling the number at the bottom of the page of that exhibit, the plaintiff received and filled out the Guaranteed Income Supplement form;

10. After doing that, he received confirmation that he and his wife were eligible and he received arrears only for the 11 preceding months;

11. The plaintiff, since the age of 65, and given his limited means, had always filled out his income tax returns himself;

12. He had always included his old age pension in his income and mistakenly believed that he was not eligible for the Guaranteed Income Supplement program;

13. The defendants never informed the plaintiff of his error, even though this fact was of common knowledge;

14. The plaintiff was thereby deprived of the amount of $5,966.08 and he is entitled to the entire amount of Guaranteed Income Supplement that had been due to him and that he did not claim, retroactive for the entire period that he was eligible, i.e. since 1994;

15. The plaintiff's situation applies to every natural person in Canada 65 years of age and older eligible to receive the Guaranteed Income Supplement and who did not receive it as well as the representatives and heirs and/or representatives of deceased persons who would have been members of the class;

16. The plaintiff proposes that he represent all of these individuals and that he become their representative in bringing a class action;

17. The amount claimed for each member of the group is to date less than $50,000;

18. The plaintiff proposes that the action proceed in Montréal.

[20] In short, the plaintiff, who has received a Pension since 1994, did not receive the Supplement, despite the fact that he was eligible for that program from 1994 to March 2002. As he had not applied for that program, he did not receive any Supplement, mistakenly believing that the amount of the Pension had to be included in the calculation of his income for the purposes of eligibility for the program. The appellant alleges that the respondents (see paragraphs 5 and 13 of his statement of claim) failed to inform him that he did not have to consider the amount of his pension for the purposes of eligibility to the Supplement program. That is the only cause of action appearing in the statement of claim.

[21] The respondents, in their defence, allege that they informed the appellant of the eligibility criteria for the Supplement. Moreover, they deny that there was an obligation to inform potential Supplement recipients of the eligibility criteria for that program.

[22] It is clear, on review of the decision by Hugessen J., that the debate before him regarding the reasonableness of the appellant's cause of action was not conducted in terms of the pleadings, as required by paragraph 299.18(1)(a). This is confirmed by simply reading the first paragraph of Hugessen J.'s reasons:

[1] The Court has before it a motion to bring a class action, pursuant to Rule 299.18(1) of the Federal Court Rules, 1998, against the respondents based on the latter's failure to use tax information in possession of the Canada Customs and Revenue Agency (the CCRA) to inform elderly persons who were potentially eligible for the Guaranteed Income Supplement (the Supplement) of the conditions of eligibility for that benefit, an omission allegedly a breach of section 15 of theCanadian Charter of Rights and Freedoms (the Charter).

[23] The cause of action argued before Hugessen J. is clearly not the one disclosed in the appellant's statement of claim. In fact, the statement of claim filed by the appellant does not disclose any cause of action based on a violation of section 15 of the Charter - the only cause of action advanced by the appellant before Hugessen J. and before us. The appellant entirely failed to establish before Hugessen J., and before us, the cause of action appearing in his statement of claim, namely a legal obligation to inform individuals eligible for the Supplement. This is what Hugessen J. states at paragraph 24 of his reasons:

[24] In the case at bar the applicant's action is based entirely on the argument that the respondents' omission was a breach of the equality right protected by section 15 of the Charter. Unlike what he had indicated in the motion record for leave to bring a class action, the applicant dealt in his memorandum neither with an alleged general duty imposed on the respondents to inform potential claimants to the Supplement nor with a duty originating elsewhere than in paragraph 33.11(a) of the Act and subparagraph 241(4)(e)(viii) of the I.T.A.

[24] The debate before Hugessen J. was based on the allegations of fact found in the motion filed by the appellant for certification to bring a class action, and the questions of law raised therein. Hugessen J. therefore had before him the appellant's motion and his supporting affidavit and exhibits A to O which were attached thereto. In reply, the respondents filed the affidavit of Margaret Robinson, the Acting Director of the Policy Branch for low-income pensioners and Income Security Programs at the Department of Human Resources Development Canada, exhibits 1 to 30 attached to that affidavit, as well as the examination on Ms. Robinson's affidavit. The respondents also filed the affidavit of Claude Montmarquette, Professor at the Department of Economic Sciences at the Université de Montréal, as well as exhibits 1 to 3 attached to his affidavit.

[25] In my opinion, there is no doubt that the plaintiff's motion, his affidavit and the exhibits attached thereto, as well as the affidavits of Ms. Robinson and Mr. Montmarquette are not "pleadings" within the meaning of the Rules of this Court or, specifically, within the meaning of paragraph 299.18(1)(a)

[26] At paragraph 42 of his reasons, Hugessen J. briefly addresses the only cause of action disclosed in the statement of claim, namely the respondents' legal obligation to inform all individuals eligible for the Supplement of their right to that benefit, and he determines that that cause of action is unfounded. In my opinion, that finding by Hugessen J. cannot be challenged. Further, at the hearing before us, the appellant's counsel made absolutely no attempt to persuade us that the judge had erred in that respect, preferring to focus entirely on the cause of action based on a violation of section 15 of the Charter.

[27] Even if the cause of action based on section 15 of the Charter does not appear anywhere in the appellant's statement of claim, it was nonetheless considered by Hugessen J. In fact, except for a few paragraphs, Hugessen J.'s reasons addressed only that cause of action. In my opinion, Hugessen J. should not have considered that cause of action. Moreover, he should not have considered the evidence offered by the parties in support of their respective arguments regarding section 15 of the Charter. Not only is section 15 not raised in the appellant's statement of claim, but it does not contain any of the allegations of fact necessary to support that cause of action. The judge erred in that he should have either dismissed the appellant's motion, or allowed the appellant to amend his statement of claim to allege all of the facts relevant to his cause of action based on a violation of section 15 of the Charter. In any case, even if such an amendment had been allowed, it is clear that the judge should not at all have considered the evidence filed by the parties, since determining if a cause of action is reasonable must be based only on the pleadings.

[28] At the hearing, following a question that we asked the appellant's counsel, they told us that in Quebec, the debate involving the issue of the existence of a reasonable cause of action, in the context of a motion to certify a class action, is not limited to the pleadings. We were not referred to any provision of the Code of Civil Procedure, R.S.Q., c. C-25 (the Code of Procedure) in support of this statement and, in any event, it is indisputable that the debate on this issue before the Federal Court and before our Court must be based solely on the pleadings.

[29] Since it is my opinion that the appeal must be dismissed because the appellant's statement of claim does not disclose any reasonable cause of action, I do not believe that it would be appropriate for us to deal with the judge's findings regarding the cause of action that the appellant wanted to advance, namely a violation of his equality rights. It is worthwhile to point out that Hugessen J. did not order that the appellant's statement of claim be struck out, but simply refused to certify the class action. If the appellant should decide to amend his statement of claim, I believe it is important to remind him that he must allege all of the facts which support or which could support the remedies that he is seeking against the respondents and, specifically, the remedies that he is seeking by the application of section 15 of the Charter, since the reasonableness of his cause of action must be determined solely based on his statement of claim.

[30] A final remark is in order. Even if I am of the opinion that, given the appellant's statement, Hugessen J. was justified to find as he did, I cannot agree with certain statements that he made regarding the appellant's counsel and the soundness of their arguments. I believe it sufficient that a judge explain why he does or does not find that the arguments before him are founded. It serves no purpose to go beyond such statements, save in exceptional circumstances.

[31] I would therefore dismiss the appeal with costs.

"M. Nadon"

J.A.

"I concur with these reasons.

Alice Desjardins, J.A."

"I concur.

J.D. Denis Pelletier, J.A."

Certified true translation

Kelley A. Harvey, BCL, LLB

FEDERAL COURT OF APPEAL

SOLICITORS OF RECORD

DOCKET: A-117-04

STYLE OF CAUSE: André Le Corre v. A.G.C. et al.

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: December 9, 2004

REASONS FOR JUDGMENT: NADON J.A.

CONCURRED IN BY: DESJARDINS J.A.

PELLETIER J.A.

DATE OF REASONS: April 12, 2005

APPEARANCES:

Jean El Masri FOR THE APPELLANT

Freddy Adams

Gilles Gareau

André Lespérance FOR THE RESPONDENTS

Frédéric Paquin

SOLICITORS OF RECORD:

ADAMS, GAREAU FOR THE APPELLANT

Montréal, Quebec

John H. Sims, Q.C. FOR THE RESPONDENTS

Deputy Attorney General of Canada

Ottawa, Ontario

You are here

Le Corre v. Canada (Attorney General), 2005 FCA 127

Citations2005 FCA 127

Case tabs

Citations
2005 FCA 127