Date: 20031204
Docket: A-723-02
Citation: 2003 FCA 468
CORAM: STRAYER J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
SUCHA SINGH SHERGILL
Appellant
(Applicant)
and
HER MAJESTY THE QUEEN
(Respondent)
(Defendant)
Heard at Vancouver, British Columbia, on November, 26, 2003.
Judgment delivered at Ottawa, Ontario on December 4, 2003.
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: NOËL J.A.
EVANS J.A
Date: 20031204
Docket: A-723-02
Neutral citation: 2003 FCA 468
CORAM: STRAYER J.A.
NOËL J.A.
EVANS J.A.
BETWEEN:
SUCHA SINGH SHERGILL
Appellant
(Applicant)
and
HER MAJESTY THE QUEEN
Respondent
(Defendant)
REASONS FOR JUDGMENT
STRAYER J.A.
[1] This is an appeal from a decision of Pinard J. of December 19, 2002 sitting as a motions judge. That decision was in respect of an appeal from a decision of Prothonotary Hargrave of November 7, 2002.
[2] In his decision Prothonotary Hargrave struck out the appellant's statement of claim on the ground of estoppel. He found that the appellant had previously been one of the parties to a class action in which he had expressly authorized a Mr. Pawar to represent him in bringing the action. The substance of the claims in that action was that sections 3 and 40 of the Old Age Security Act are unconstitutional as violating section 15 of the Canadian Charter of Rights and Freedoms. Section 3 requires that to be eligible for a pension an applicant must have resided in Canada for at least 10 years. (The appellant did not arrive in Canada until 1996). Section 40 was indirectly attacked as it authorizes reciprocal arrangements with other countries which allow persons from those countries to move to Canada and obtain benefits in less than 10 years if they have had qualifying residence abroad. Both sections, it was argued, deny equality to those who have not come from reciprocating countries and have not been in Canada for 10 years. In Pawar v. Canada this claim was rejected by the Federal Court Trial Division ([1998] F.C.J. 1418), confirmed on appeal to this Court ([1999] F.C.J. 1421). The Supreme Court of Canada refused leave to appeal ([1999] S.C.C.A. No. 526, June 8, 2000).
[3] The courts held in Pawar that the residence requirement for a pension did not involve any form of discrimination analogous to the enumerated grounds in subsection 15(1) of the Charter. In the motion to strike before him, the learned Prothonotary concluded that the Pawar decision was a final decision involving "exactly the same question" as was being presented in the appellant's new statement of claim filed on June 10, 2002. To the extent that any new issues were raised in the statement of claim they could have been raised in Pawar by those who represented the appellant. He also found that the appellant was privy to the Pawar action as a represented person in the role of plaintiff.
[4] Pinard J. on appeal confirmed the decision of the Prothonotary.
[5] On appeal to this Court the appellant argued, as he also alleged in his statement of claim, that by the subsequent Supreme Court decision in Lavoie v. Canada ([2002] 1 S.C.R. 769, 2002 S.C.C. 23) constitutional law had since changed so that his new action was not raising an issue that had been determined for all time in Pawar. He insisted that the Supreme Court in Lavoie held that Parliament must legislate to prefer citizens over non-citizens. He also asserted that as he is now a citizen (since November, 2000) it is unconstitutional for the Old Age Security Act to preclude him from benefits, albeit that he does not meet the 10 year residency requirement, whereas non-citizens meeting that requirement or having entitlement by former residence in a reciprocating country can receive pensions.
[6] The appellant also argues that the Prothonotary should not have dealt with the respondent's motion to strike the statement of claim before considering his own motion to strike the statement of defence.
[7] I am of the view that the Motions Judge was correct in finding no reviewable error in the decision of the Prothonotary to hear the motion when he did on the day fixed by the Associate Chief Justice. At the request of the respondent the Associate Chief Justice by order of September 6, 2002 had set the hearing date of the intended motion to strike for November 6, 2002. On September 13, 2002 the respondent filed that motion to strike the statement of claim. On September 16, 2002 the appellant filed his motion to strike the statement of defence. It was clearly within the Prothonotary's discretion to proceed in the order he did.
[8] I also agree with the decision of the Motions Judge confirming the decision of the Prothonotary to strike out the statement of claim on the basis of estoppel. The party and issues were all the same as in Pawar and that decision was final.
[9] Despite the appellant's vigorous arguments to the contrary, I do not accept that the Lavoie decision of 2002 altered the interpretation of section 15 of the Charter vis à vis the Old Age Security Act so as to make Pawar no longer an obstacle to the appellant's action. A majority in Lavoie decided that the Public Service Employment Act gives preference to Canadians and that this is contrary to section 15 of the Charter. However a differently constituted majority held that either this is not contrary to section 15 or else that it is permissible under section 1 for Parliament within the particular field of employment in the public service specifically to authorize preferential treatment for Canadians. That decision did not, as the appellant seems to believe, require Parliament to discriminate generally in favour of citizens, nor did it have anything to do with old age security. The learned Prothonotary was therefore correct to treat the issue as determined finally by Pawar.
[10] It is true that neither the Prothonotary nor the Motions Judge referred to the discretion which the Prothonotary should still exercise in deciding whether to apply the principle of issue estoppel. See e.g. Danyluk v. Ainsworth Technologies Inc. ([2001] 2 S.C.R. 460); Toronto (City) v. C.U.P.E. (2003 S.C.C. 63). However, even if the Motions Judge had set aside the Prothonotary's order for this reason, he should then have exercised de novo that discretion of the Prothonotary. If we were to set aside the Motions Judge's order, we would be obliged to exercise the discretion he should have exercised and in the circumstances here that discretion would be exercised to strike out the statement of claim.
[11] The appeal should therefore be dismissed with costs.
(s) "B.L. Strayer"
J.A.
I agree
"Marc Noël" J.A.
I agree
"John M. Evans" J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-723-02
STYLE OF CAUSE: SUCHA SINGH SHERGILL v. Her Majesty the Queen
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: November 26, 2003
REASONS FOR JUDGMENT BY: STRAYER J.A.
CONCURRED IN BY: NOËL J.A.
EVANS J.A.
DATED: December 4, 2003
APPEARANCES:
Mr. Sucha Singh Shergill
Surrey, British Columbia ON HIS OWN BEHALF
Mr. Stephan Bertrand
Ms. Margaret Jarmoc
Ottawa, Ontario FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Sucha Singh Shergill
Surrey, British Columbia ON HIS OWN BEHALF
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
.
Email this Content