Bélanger v. Canada (Attorney General), 2003 FC 1049

Date: 20030909

Docket: T-661-02

Citation: 2003 FC 1049

Ottawa, Ontario, September 9, 2003

Present:           The Honourable Mr. Justice Blais

BETWEEN:

                                                                 LINE BÉLANGER

                                                                                                                                                       Applicant

                                                                                 and

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                           LOUISE-ELLA GOYETTE

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of a decision by Treasury Board dated February 15, 2002, dismissing the applicant's claim for surviving spouse benefits under subsection 13(2) of the Public Service Superannuation Act, 1985 [the Act].

FACTS

[2]                 Raymond Carrier and Louise-Ella Goyette were married on June 21, 1958, under the regime of separation as to property. The couple lived in Quebec.

[3]                 From about October 21, 1981, they lived separately.

[4]                 On May 21, 1985, the Superior Court of Quebec issued a judgment of separation as to bed and board, Ms. Goyette having established Mr. Carrier's adultery.

[5]                 On October 20, 1994, a separation agreement was entered into by the parties, in which, inter alia: (I) Mr. Carrier undertook to pay support of $600.00 per month, with indexation in accordance with the law, beginning on January 1, 1995; (ii) he acknowledged that he was to repay the sum of $1,450.00, in installments of $200.00 per month, on the last day of every month beginning on October 31, 1994; (iii) Ms. Goyette was to send an application for diversion of support from the public service in order to receive these sums directly from the Department of Supply and Services (where the sums diverted by the Department were insufficient, Mr. Carrier undertook to pay them directly, failing which Ms. Goyette could seize his assets pursuant to the Garnishment, Attachment and Pension Diversion Act.)

[6]                 This agreement was ratified by the Superior Court of Quebec on November 14, 1994.

[7]                 The applicant, a resident of Quebec, claims that she was Mr. Carrier's common law spouse from 1980 until he died.

[8]                 Mr. Carrier was employed at the Transportation Safety Board of Canada until May 11, 1990, the date of his retirement.

[9]                 Mr. Carrier was a contributor to the superannuation account of the Public Service of Canada, in accordance with the definition provided by the Act.

[10]            In a form entitled "Naming or Substitution of a Beneficiary for Supplementary Death Benefit" (Part II of the Act), Mr. Carrier names the applicant as beneficiary.

[11]            Following the death of Mr. Carrier on October 27, 1998, the applicant applied for surviving spouse benefits, as Mr. Carrier's common law spouse.

[12]            The legal widow of the deceased, Ms. Goyette, a respondent in the case at bar, also applied for this benefit.

[13]            On February 15, 2002, Linda Belliveau, Statutory Interpretation Section of the Superannuation Directorate of the Department of Public Works and Government Services Canada, advised the applicant that Treasury Board had denied her claim, that Ms. Goyette's claim had been approved and that the latter was considered the only surviving spouse of Mr. Carrier for the purposes of the Act.

[14]            That decision is the subject of this judicial review application.

ISSUES

[15]            1.         Did Treasury Board make an error warranting the intervention of this Court in denying the applicant's claim for surviving spouse benefits?

2.         Did Treasury Board fail to observe a principle of natural justice, procedural fairness or any other procedure with which it was lawfully bound to comply?

RELEVANT LEGISLATION

[16]            Subsection 3(1) of the Act defines the term "survivor":

[17]            Paragraph 12(4)(a) of the Act refers to the allowance:

[18]            Subsection 13(2) of the Act refers to the allowances payable to the survivor and the children of the contributor:

[19]            Subsection 25(4) of the Act establishes the criteria that would allow a person to be considered a "survivor" of a contributor:

[20]            Subsection 25(10) of the Act refers to the apportionment of the amount of the allowance when there are two survivors:

[21]       Section 26 of the Act establishes the consequences of cohabitating after the retirement:

ANALYSIS

Standard of review

[22]            There is no doubt in my mind that paragraph 25(a) of the Act confers upon Treasury Board the discretion to consider a person to be a contributor's spouse. In Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd. (1997), 208 N.R. 329, [1997] F.C.J. No. 115, the Federal Court of Appeal states:

[6] . . .

Whether or not the Tribunal's decisions are protected by a privative or finality clause, the standard of review in this Court for alleged errors of fact is that set out in paragraph 18.1(4)(d) of the Federal Court Act:

We cannot see any practical difference between that standard and the standard of patent unreasonableness.

[7] I conclude, therefore, that the parties have correctly agreed that the standard of review in this case is patent unreasonableness.

Respondent's record, Vol. II, page 601.

[23]            Nor is there any doubt that a finding to the effect that a person is or is not cohabitating with a contributor and that this contributor introduces this person as his or her spouse in public evidently constitutes a finding of fact with which the Court cannot intervene unless such finding was made in a perverse or capricious manner or without regard for the material in the record.

[24]            The courts are always reluctant to intervene in judicial review applications when decisions are made based on findings of fact. The Court's intervention should only be warranted if Treasury Board's findings of fact are patently unreasonable.

1.         Did Treasury Board make an error warranting the intervention of this Court in denying the applicant's claim for surviving spouse benefits?

[25]            From a reading of the documents that were submitted to Treasury Board before it made its decision, it is clear there were a certain number of contradictory aspects.

[26]            Treasury Board, through its representative, requested clarification about its concerns on several occasions.

[27]            It must be noted, from the outset, that Treasury Board was confronted with two claims coming from two different people claiming to have rights as a surviving spouse.

[28]            The evidence indicates that Mr. Carrier and the respondent Ms. Goyette have been legally separated since the end of 1981.

[29]            Between 1981 and 1998, the year in which he died, Mr. Carrier moved on a number of occasions and the evidence submitted by the applicant, with respect to their living together, raised a number of questions for Treasury Board, and justifiably so. According to the evidence submitted on October 24, 1988, Mr. Carrier signed a service election form. On this form, his mailing address is indicated as 150 Dorval Avenue, Dorval, Apartment 1407, while the applicant provided secondary evidence showing that, at that time, she lived at 150 Dorval Avenue, Dorval, Apartment 1207. When confronted with this discrepancy, the applicant stated that apartment 1407 was an office and that they were in fact living together at that time.

[30]            Later, on May 2, 1990, Mr. Carrier filled out an income tax form declaring: "[Translation] I do not have a spouse and I do not share a self-contained domestic establishment with any person other than a dependant child". When confronted with this, the applicant suggested this was only a statement for tax purposes and that at the time she was indeed sharing her residence with Mr. Carrier.

[31]            A further aspect, this one even more serious, was the execution on October 20, 1994, of a separation agreement between Mr. Carrier and his lawful spouse, Ms. Goyette, in which it is stipulated:

[Translation] The respondent (Mr. Raymond Carrier) declares that, while he may have resided with a third person, he has not done so and is not presently doing so as husband and wife, that he does not consider this person to be a common law spouse and that in fact, she has not been and is not in any way.

Respondent's record, Vol. II, page 576.

[32]            The record indicates that this separation agreement was ratified on November 14, 1994, by the Superior Court of Quebec. When confronted with this information, the applicant's counsel suggested that in fact Mr. Carrier was lying at that time and that he was faced with the seizure of his pension income and that he had no choice but to sign such a declaration. Unfortunately, it is difficult for the Court to accept such an explanation given that Mr. Carrier is deceased; if a validly executed document is to be contested - and one, moreover, that was filed in the Superior Court of Quebec - this Court is entitled to expect more substantial explanations.

[33]            The final contradiction raised is that the applicant provided a copy of a T-4 form that had been issued to her by Revenue Canada in 1997, at the address 795 des Bouleaux West, Québec, while the address of Mr. Carrier at that time was 1670 de la Trinité, apartment 3, Québec.

[34]            Treasury Board contacted both the applicant and her counsel on numerous occasions in order to obtain further clarifications and a statutory declaration that could support the applicant's version regarding the obvious contradictions appearing in the record.

[35]            It appears that some partial answers were sent to Treasury Board. However, a request sent to the applicant's counsel dated September 26, 2001, in order to obtain a statutory declaration attesting to the steps taken to find secondary evidence to support the applicant's claim for survivor's benefits, did not receive a satisfactory response. Further, in a letter dated October 1, 2001, the applicant's counsel stated that he had no intention to send another declaration as Treasury Board had requested.

[36]            As a result of the amendments made to the Civil Code of Québec, it is now much easier to adjudicate between the beneficiaries of pension funds. In the case at bar, for a reason unknown to the Court , the parties decided to perpetuate a situation that can be characterized as confused in regard to their true status.

[37]            The respondent, Ms. Goyette, was separated as to bed and board but remained nonetheless the legitimate spouse of Mr. Carrier. As for Mr. Carrier, he deliberately chose to perpetuate an ambiguous situation where his marital status was concerned. It is quite obvious that the support payment to his wife had income tax advantages for him, since he could deduct the amount of support paid.

[38]            Had he proceeded to divide the pension, whether at the time of separation in 1981 or at the time of his judgment in 1985, the total amount of pension to be paid would have been reduced appreciably. Had he proceeded with this division in 1990, when he retired, he would have undoubtably lost a significant amount of income that would have been paid directly to his wife. He could have applied to the court to stop paying support, but then he would have lost the tax advantage.

[39]            Whatever the case, the Court will never know exactly what reasons led Mr. Carrier to perpetuate this ambiguous situation, which has forced both the applicant and the respondent to go to Court to settle the matter.

[40]            This Court, under these circumstances, cannot substitute its own judgment for Treasury Board's, as Mr. Justice Pelletier said so well in Carson v. Canada (Attorney General) (1999), 182 F.T.R. 119, [1999] F.C.J. No. 2010:

[16] As for the allegation that the decision must be the result of a finding of fact which is perverse or made in capricious manner, there was evidence on which Treasury Board could have found that Ms. Maxwell did not reside with Mr. Carson in the year preceding her death, or that she did not hold him out as her spouse in that same interval. There is evidence which, if accepted, would have satisfied the statutory test, but it is not the function of this Court to substitute its judgment for Treasury Board's. While I would not necessarily come to the same conclusion as did Treasury Board, I am unable to say that its conclusion is capricious or arbitrary.

[41]            It falls to the Court, in circumstances such as these, to determine if the procedure adopted by Treasury Board was followed in accordance with established procedures.

[42]            It appears that Treasury Board accumulated a significant amount of information from a number of different sources. Faced with the inaccuracies and contradictions in the documents filed by all parties, it communicated without hesitation with the parties on numerous occasions in order to obtain additional information. It was only after it had given the parties every opportunity to explain these inaccuracies or concerns raised by the documents submitted that Treasury Board finally made its decision.

[43]            Again, as Pelletier J. stated in Carson, supra, I would not necessarily have come to the same conclusion as Treasury Board if I, myself, had to make a decision in this matter. However, despite having read the documents submitted to me very carefully and analysed the arguments submitted orally by counsel, I am unable to conclude that Treasury Board's decision was arbitrary or that it was patently unreasonable warranting the intervention of this Court.

2.         Did Treasury Board fail to observe a principle of natural justice, procedural fairness or any other procedure with which it was lawfully bound to comply?

[44]            The principal argument raised by the applicant on the issue of procedural fairness is that Treasury Board did not give reasons for its decision.

[45]            It is clear from the exchange of correspondence between the parties, that Treasury Board identified, on several occasions, the weak points of the applicant's file and the information that had to be conveyed to enable it to make the best decision, in light of the circumstances and the evidence submitted.

[46]            Early on, the applicant was aware of Treasury Board's concerns about the claim in light of the glaring contradictions in the file. In Carson, supra, Pelletier J. states:

[14] . . . in Baker, supra, this in itself does not make the content of the duty of fairness obvious. In order to determine the content, it seems to me that one must ask another question, which is, did the procedure adopted by the Branch allow Mr. Carson to fairly know and meet the case against his claim? If it did, then the duty of fairness has been met. The fact that some other procedure would have given Mr. Carson a better opportunity to make out his case is not necessarily fatal to the position of the Branch. It is always possible to improve a claimant's ability to make their case by providing them with a full scale hearing and pre-hearing discovery procedures. The question is not whether some other procedure would be better but whether the procedure adopted by the agency in question, in this case the Branch, gave the claimant the information he needed to know the case to be met and the opportunity to meet it.

[47]            It seems clear to me that Treasury Board, on several occasions, told the applicant what objections had been raised that prevented it from favourably responding to the application and the ways in which to remedy the situation. In the circumstances, this approach specifically fulfils the duty of procedural fairness. This issue was also addressed in Carson, supra, where Pelletier J. states:

[15] On the facts of this case, that standard has been met. The Branch's letter of September 14, 1995 contained all the information which Mr. Carson required in order to address the concerns of the decision-maker. He knew the issues to be addressed and he knew the kind of proof which the decision-maker considered persuasive. He also had the opportunity to respond before the decision was made. In my view, Mr. Carson had the benefit of a fair procedure.

[48]            I have no hesitation, therefore, in concluding that Treasury Board fulfilled its obligations of procedural fairness in this case.

                                                   ORDER

THE COURT ORDERS THAT:

[1]                 This application for judicial review be dismissed.

[2]                 With costs.

             "Pierre Blais"             

JUDGE                    

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

FEDERAL COURT

SOLICITORS OF RECORD

DOSSIER:                                                          T-661-02

STYLE OF CAUSE:                                        Line Bélanger v. Attorney General of Canada

and Louise-Ella Goyette

PLACE OF HEARING:                                   Québec

DATE OF HEARING:                                     August 20, 2003

REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Blais

DATE OF REASONS:                                     September 9, 2003

APPEARANCES:

Manès Webster                                                   FOR THE APPLICANT

Guy Blouin                                                            FOR THE RESPONDENT      (ATTORNEY GENERAL OF CANADA)

Denis Gingras                                                        FOR THE RESPONDENT (LOUISE-ELLA GOYETTE)

SOLICITORS OF RECORD:

Moreau et Webster                                              FOR THE APPLICANT

Charlesbourg, Quebec

Department of Justice - Canada                          FOR THE RESPONDENT

Ottawa, Ontario                                                   (ATTORNEY GENERAL OF CANADA)

Gingras, Vallerand, Laroche                                FOR THE RESPONDENT

Québec, Quebec                                                  (LOUISE-ELLA GOYETTE)