Pratte,
J.A.:—
We
are
all
of
the
view
that
this
motion
to
quash
must
succeed.
It
is
common
ground
that
this
appeal
must
fail
unless
either
one
of
the
following
two
conditions
are
met,
namely:
1.
The
Minister,
when
he
rules
on
an
application
to
amend
a
registered
plan
under
subsection
147.1(4)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act"),
may
ignore
an
applicable
provision
of
the
Act
if
he
considers
it
to
be
unconstitutional
on
the
ground
that
it
violates
the
Canadian
Charter
of
Rights
and
Freedoms;
or
2.
assuming
that
the
Minister
does
not
have
that
power,
this
Court,
on
an
appeal
under
paragraph
172(3)(f.1),
has
the
power
to
set
aside
a
decision
of
the
Minister
on
the
ground
that
it
was
founded
on
a
provision
of
the
Act
that
the
Court
considers
to
be
unconstitutional.
In
our
view,
it
is
clear
that
the
Minister
who,
under
subsection
220(1)
of
the
Income
Tax
Act,
is
bound
"to
administer
and
enforce
the
Act"
and
who,
under
paragraph
147.1(4)(c),
must
reject
any
amendment
to
a
registered
pension
plan
which
does
not
comply
with
the
"prescribed
conditions”
cannot,
pursuant
to
the
decisions
of
the
Supreme
Court
in
Tétreault-Gadoury
v.
Canada
(Employment
&
Immigration
Commission),
[1991]
2
S.C.R.
22,
81
D.L.R.
(4th)
358,
Cuddy
Chicks
Ltd.
v.
Ontario
(Labour
Relations
Board),
[1991]
2
S.C.R.
5,
81
D.L.R.
(4th)
121
and
Douglas/Kwantlen
Faculty
Assn.
v.
Douglas
College,
[1990]
3
S.C.R.
570,
77
D.L.R.
(4th)
94,
ignore
one
of
those
prescribed
conditions
on
the
ground
that
he
considers
it
to
be
unconstitutional.
It
follows
that
this
Court,
whose
powers
on
an
appeal
of
this
sort
are
limited
by
paragraph
52(c)
of
the
Federal
Court
Act,
could
not
allow
this
appeal
since
it
could
neither
give
a
decision
that
the
Minister
was
not
empowered
to
give
nor
direct
the
Minister
to
render
such
a
decision.
The
appeal
will
therefore
be
quashed.
Appeal
dismissed.
Email this Content