Date: 20061218
Docket: T-1858-05
Citation: 2006 FC 1511
Ottawa, Ontario, December 18,
2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
FRED
KOMBARGI
Applicant
and
THE MINISTER OF SOCIAL DEVELOPMENT CANADA
(formerly HUMAN RESOURCES DEVELOPMENT CANADA)
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review challenges a decision of a Review Tribunal
established to hear appeals arising under the Old Age Security Act, R.S.C. 1985, c. O-9. The
underlying dispute between the Applicant, Fred Kombargi, and the Minister of
Social Development Canada (Department) concerns a decision by the Department to
recover a claimed Guaranteed Income Supplement (G.I.S.) overpayment. That
claim arose in 2001 after Mr. Kombargi’s wife, Majdouline Kombargi, cashed in
an RRSP in the amount of $11,725.11. The additional income realized by Mrs.
Kombargi in that taxation year made both Mr. and Mrs. Kombargi ineligible for
the G.I.S. benefits which they had jointly applied for in April, 2001 and which
they each began to receive shortly thereafter.
[2]
When
the Department notified Mr. and Mrs. Kombargi that the overpayment would be
recovered through deductions from their future G.I.S. benefits, they advised
the Department that their marriage had previously broken down and they had
effectively separated on June 1, 2001. They maintained that because Mrs.
Kombargi had been the sole beneficiary of the RRSP income, Mr. Kombargi was not
accountable for any G.I.S. repayment. In simple terms, it was contended that
the RRSP income received by Mrs. Kombargi should not have been treated by the
Department as family income for the purposes of determining Mr. Kombargi’s
eligibility for the G.I.S.
[3]
The
Department undertook an investigation of the claim by Mr. and Mrs. Kombargi
that they had been separated from June 1, 2001 until a reconciliation in February,
2004. Very little independent evidence was produced by Mr. and Mrs. Kombargi
to verify their claimed estrangement and, by all appearances, they continued to
live as husband and wife. In the result, the Department maintained its
decision that Mr. Kombargi had been overpaid. Mr. Kombargi was not satisfied
with that decision and brought an appeal under s. 28(1) of the Act. His appeal
was heard by a panel of three members (Tribunal) on July 26, 2005. The Tribunal
dismissed Mr. Kombargi’s appeal and it is from that decision that he seeks
relief on judicial review in this proceeding.
Tribunal Decision
[4]
The
single question before the Tribunal was whether Mr. and Mrs. Kombargi were
separated during the year in which Mrs. Kombargi collapsed her RRSP. The
Tribunal concluded that Mr. Kombargi had failed to establish, on a balance of
probabilities, that his marriage had broken-down and that he and his wife had
separated. The Tribunal described the evidence of separation offered by Mr.
and Mrs. Kombargi as inconsistent, insufficient and uncertain. In coming to
that conclusion the Tribunal made note of the following evidence:
i)
Apart
from a trip by Mrs. Kombargi to the home of her sister in the summer of 2001,
the couple continued to reside together in their Toronto apartment.
ii)
When
Mrs. Kombargi left for the United States to stay with her
sister, she purchased a round trip ticket in the expectation that a reconciliation
might occur.
iii)
Mr.
and Mrs. Kombargi testified that they had not told their family members or
their physician that they had separated and their evidence about informing
friends was contradictory.
iv)
No
independent evidence of separation was produced in the form of a separation
agreement, material changes to financial arrangements or third party
confirmation.
v)
Both
Mr. and Mrs. Kombargi declared themselves to be married during the relevant
period in their G.I.S. applications and also in Mrs. Kombargi’s 2001 Income Tax
Return.
vi)
It
was only at the point when the Department advised Mr. and Mrs. Kombargi that it
intended to recover the G.I.S. overpayment that they declared a marital
separation.
Issues
[5]
The
issues before the Court involve the adoption of the appropriate standard of
review followed by a determination of whether the Tribunal made any reviewable
errors in reaching the conclusion that Mr. Kombargi had failed to establish a
marital separation.
Standard of Review
[6]
Counsel
for the Department argued that this Court should not interfere with the
Tribunal’s decision unless it finds that decision to be patently unreasonable.
He maintained that the pragmatic and functional factors all point to a higher
level of deference and he emphasized the point that the nature of the question
presented is primarily evidence-based.
[7]
Although
a finding of marital separation is primarily based on facts it also requires
the consideration of some legal elements. It is, therefore, an issue of mixed
fact and law which will typically attract less judicial deference than a purely
factual finding. I am inclined to the view that the standard of review in this
case is one of reasonableness simpliciter. That was the conclusion
reached by Justice Judith Snider in Canada v. Leavitt, [2005] F.C.J. No. 824,
2005 FC 664, and also by Justice Carolyn Laden-Stevenson in Canada v. Chhabu,
[2005] F.C.J. No. 1557, 2005 FC 1277. Each of those cases involved a review of
a Tribunal decision on an issue similar to the one raised in this case. Nevertheless,
whatever the standard of review may be for this application, I have concluded
that the Tribunal’s decision stands up to scrutiny and cannot be found to be unreasonable.
[8]
On
the standard of reasonableness, the Tribunal’s decision will only be set aside
if there is no line of analysis within the given reasons that could reasonably
have led it from the evidence received to the conclusion reached. If any of
the reasons given to support the conclusion are tenable in the sense that they
can stand up to a somewhat probing examination, the decision will not be
unreasonable and a reviewing court must not interfere: see Southam
Inc. v. Director of Investigation and Research, [1997] 1 S.C.R. 748 at para.
56.
[9]
It
bears repeating that on an application for judicial review of factual or fact-based
findings made by an administrative decision-maker, this Court cannot substitute
its own views simply because it might have come to different conclusion. In
this case the Tribunal had the benefit of hearing Mr. and Mrs. Kombargi and
weighing their testimony against the documentary record. The Tribunal had a
distinct advantage from its first-hand exposure to the evidence, an advantage that
this Court, on judicial review, does not enjoy. That is one important reason
for extending deference to the Tribunal’s assessment of the evidence with respect
to the separation issue.
Analysis
[10]
Mr.
Kombargi had some difficulty in identifying any erroneous findings made by the
Tribunal. He contended that the decision as a whole was wrong and he attempted
to re-argue many of the points that had not been accepted by the Tribunal. He
did identify some evidence which he felt the Tribunal failed to properly
consider including the subsequent acceptance by Revenue Canada of his
declaration of marital separation and the failure by the Tribunal to carefully examine
the family financial arrangements which he believed were indicative of a
separation. He also made the point that the Tribunal was unduly influenced by
the fact of his continuing cohabitation with his wife.
[11]
Notwithstanding,
Mr. Kombargi’s arguments, the Tribunal’s conclusion cannot be described as
unreasonable. Although it was open to the Tribunal to have come to a different
conclusion, there was ample evidence to support its finding that Mr. Kombargi
had not proven a separation. Indeed, the fact that Mr. and Mrs. Kombargi
repeatedly declared themselves to be married at the relevant time - at least
until the overpayment claim was made by the Department - is strong evidence supporting
the Tribunal’s decision. Mr. Kombargi had testified that those declarations of
marriage were simple mistakes and he argued the same point before the Court.
However, it was reasonable for the Tribunal to reject Mr. Kombargi’s
explanation having particular regard to the number of opportunities available
to Mr. and Mrs. Kombargi to have declared a separation in advance of the
Department’s claim to an overpayment. In circumstances where Mr. and Mrs.
Kombargi also continued to reside in the same household and where they tendered
very little independent evidence to establish a separation, the Tribunal’s
decision is certainly reasonable if not compelling.
[12]
I
also do not accept Mr. Kombargi’s complaint that the Tribunal failed to
adequately consider the evidence. It is well-established that a decision-maker
is not required to refer to every piece of evidence placed before it: see Kellar
v. Canada (Minister of
Human Resources Development), [2002] F.C.J. No. 732, 2002 FCA 204 at
para. 6, Gavoci v. Canada (Minister of Citizenship
and Immigration), [2005] F.C.J. No. 249, 2005 FC 207 at para. 7.
The fact that Revenue Canada accepted at
face-value Mr. and Mrs. Kombargi’s subsequent declaration of separation does
not prove that they were actually separated. Similarly, the banking records
showing payments by Mrs. Kombargi to Mr. Kombargi for her “share” of rent and
household expenses are not strongly indicative of a marital separation –
particularly when those arrangements appear to have continued even after their
reconciliation. It is perhaps noteworthy as well that many married couples
maintain a degree of fiscal independence and in doing so, no reasonable
inference of marital discord would arise. These are not points of evidence
with significant probative value and the Tribunal did not err by not referring
to them in its decision.
[13]
Finally,
while I agree with Mr. Kombargi that it is legally possible for a married couple
to live separately in the same household, I can find nothing in the Tribunal
decision which suggests otherwise. If the Tribunal had said that a separation
could never arise in such circumstances, I would not hesitate to set the
decision aside. The fact, though, that the Tribunal examined all of the
evidence concerning the state of the Kombargi’s relationship indicates that it
did not consider their common residency to be a determinative or threshold
issue of separation. While there are certainly examples of separated spouses
living under the same roof, such arrangements are probably not the norm and
when they do occur, the task of proving a separation is made all the more
difficult. Mr. Kombargi needed to advance a much stronger case than he did if
he hoped to prove that his marriage had truly broken-down. In the end, the
Tribunal was not convinced of that fact and there is no legal basis for me to set
aside its decision.
[14]
Neither
party requested costs and, in the circumstances, no costs are ordered.
JUDGMENT
THIS COURT ADJUDGES that this
application is dismissed without costs.
"R. L. Barnes"
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