Date: 19991027
Docket: T-108-99
Ottawa, Ontario, the 27th day of October, 1999
Present: The Honourable Mr. Justice Pelletier
BETWEEN :
J. BRUCE W. CARSON,
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent
REASONS FOR ORDER and ORDER
[1] On March 19, 1988 Dianne Maxwell died leaving a 20 year old daughter. The daughter, Mrs. Beth Ferguson, applied for and received certain benefits, including a lump sum payment of slightly more than $50,000, under the Public Service Superannuation Act, R.S.C. 1985 c. P-35, (the Act) as a result of her mother"s employment in the public service of Canada.. On August 26, 1994, the Applicant Bruce Carson applied to the Public Service Superannuation Branch (the Branch) of the Department of Supply and Services Canada for a surviving spouse"s allowance under the Act on the basis that he was the common-law spouse of the deceased. His affidavit evidence is that he was not aware of his right to apply for the pension prior to that date. At the time of his application, Mr. Carson did not know of the payments to Ms. Ferguson.
[2] The Branch wrote to Mr. Carson and asked for proof of the common-law relationship, citing the requirements found at s. 13 (4)(b)of the Act, that is, evidence that Mr. Carson had " for a period of not less than one year immediately prior to the death of a contributor with whom [he] had been residing, been publicly represented by that contributor as [her husband] and that at the time of the death of that contributor, neither [he] nor the contributor was married to any other person." It will be seen that there are two requirements to be satisfied, common residence and a holding out of the applicant as a spouse. Mr Carson submitted evidence, both primary in the form of sworn affidavits and secondary, in the form of documentary evidence of a common household. After a year, he learned that his application was opposed.
[3] On December 16, 1994 Mr. Carson, through the office of his counsel, filed with the Branch two affidavits in addition to his own, both of which attested to the fact that he and Ms. Maxwell lived together at 270 Douglas Avenue in the City of St. John from approximately 1984 to the date of her death, except for a period of time during her illness during which she lived with her mother as a result of the care which she required due to her illness. Various financial and other documents were filed showing that Ms. Maxwell contributed to the upkeep of 270 Douglas Ave.
[4] Ms. Ferguson was also invited to submit material in support of her claim to be entitled to retain the benefits already paid to her. She filed her own affidavit which denied that her mother lived with Mr. Carson for a period of one year prior to her death and that she did not represent him as her spouse. She also filed affidavits of two friends of her mothers", one of which attested that Ms. Maxwell confided that she did not have a sexual relationship with Mr. Carson, both of which maintained that Ms. Maxwell maintained a separate residence throughout the period of her relationship with Mr. Carson. She also filed material showing that Ms. Maxwell continued to use her mother"s address as her address throughout the period of her relationship with Mr. Carson for purposes of correspondence with public authorities, insurers and others.
[5] On September 14, 1995 the Branch wrote to Mr. Carson" s counsel advising that:
| 1) they had received documentation opposing Mr. Carson"s claim for survivor"s benefits |
| 2) the documentation consisted of sworn statements and documentary evidence confirming that Ms. Maxwell resided at 27 Douglas Ave in St. John. The documentation included doctors" reports and hospital records from 1983 to the date of her death. Note was made of the fact that on all admissions Ms. Maxwell"s parents are listed as next of kin. |
| 3) it was acknowledged that Mr. Carson had submitted evidence showing some type of relationship with Ms. Maxwell but that this did not necessarily prove a common law marriage which was defined as a relationship "that resembles a traditional legal marriage and where the following exist and can be proved, common residency, public representation as a spouse by the plan member, continuity and in some case, financial interdependency |
| 4) Mr. Carson must prove by secondary evidence that he and Ms. Maxwell maintained a marital type relationship in spite of the fact that they did not live together from March 1987 to the date of her death. Examples of this type of evidence were given. |
| 5) the secondary evidence submitted to date did not show public representation of Mr. Carson as Ms. Maxwell"s spouse, common residency and financial interdependency for the period March 1987 to March 1988. |
[6] The letter then warned Mr. Carson of the Branch"s view of the evidence:
| Unless Mr. Carson can provide a detailed explanation commenting on the statements that were made and the fact Mr. Carson has not provided any secondary evidence to prove common residency during the critical period, it is highly probable that the Treasury Board will not approve Mr. Carson"s claim. |
[7] As could be expected, Mr. Carson"s solicitor objected to his client being asked to explain comments and statements which he had not seen. He demanded disclosure of the material submitted in opposition to Mr. Carson"s application. By letter dated September 25, 1995, he was advised that, following consultations with Treasury Board, the Branch"s position was that there would be no disclosure to Mr. Carson of the material submitted in opposition to his claim.
[8] Over the balance of four years, Mr. Carson filed numerous affidavits of persons who knew of their relationship, all of whom deposed that they had lived together since a date prior to the one year immediately preceding her death. They also explained that Ms. Maxwell returned to her mother"s house between hospitalizations because she needed care which Mr. Carson could not provide. In addition he filed handwritten notes by Ms. Maxwell, who became deaf as a result of her illness and was therefore required to communicate in writing. The notes tend to confirm a domestic relationship between Ms. Maxwell and Mr. Carson.
[9] In due course, the Branch forwarded the file to Treasury Board together with some recommendations which have not been disclosed on the ground of cabinet secrecy pursuant to s. 39 of the Canada Evidence Act, R.S.C. 1985 c. C-5. After some delay, Treasury Board addressed their mind to the issue and on July 30, 1998 an official wrote to Mr. Carson to advise him that Treasury Board had considered his application and that "the Ministers did not deem you to be the surviving spouse of this late Ms. Maxwell". No reasons were given.
[10] Mr. Carson challenges this decision on a number of grounds. He alleges that the findings of fact with respect to common residence and holding-out are perverse. He does not take the position that he is entitled to an oral hearing since he concedes that this is an administrative procedure. However, he does argue that since he will not get an oral hearing, it is all the more important that he have the opportunity to see and respond to the material which is filed in opposition to his application. He does not complain of the lack of reasons though he does comment on the fact that, given what he now knows of the evidence, it is difficult to see how the Treasury Board came to the decision which it did. It is difficult to see because no reasons were given.
[11] It is beyond question that a duty of fairness is owed even in administrative matters and that the duty is tailored to the nature of the decision under review. A general statement of the content of the duty of fairness is found in Donoso v. Minister of Employment and Immigration (1989), 30 F.T.R. 241 (T.D.), a decision of Jerome A.C.J. (as he then was), in which he says:
| Generally, this [the duty of fairness] includes knowledge of the case made out against the applicant, an opportunity to counter it and an unbiased tribunal rendering decisions in good faith. |
[12] The Supreme Court of Canada has elaborated upon the content of the duty of fairness in Knight v. Indian Head School Division No. 19 (1990), 1 S.C.R. 653 where the following appears at p. 682:
| The concept of the duty of fairness is eminently variable, and its content is to be decided in the specific context of each case. |
[13] This theme was revisited in Barker v. Canada (1999), 174 D.L.R. (4th) 193 where the following factors were identified as affecting the content of the duty of fairness:
| 1) the nature of the decision being made and the process followed in making it, |
| 2) the nature of the statutory scheme, |
| 3) the importance of the decision to the lives of those affected, |
| 4) the legitimate expectations of the person challenging the decision, |
| 5) the choices of procedure made by the agency itself. |
The Court pointed out that this list is not exhaustive. Other factors may be relevant in particular cases.
[14] The issue here is the content of the duty of fairness owed to Mr. Carson. It is not disputed that he is owed such a duty, but the question is what does it include. In particular, does it include the right to have disclosed to him the material submitted in opposition to his application? While Mr. Carson"s circumstances fit many of the criteria articulated by the Supreme Court 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.
[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. It would have been even fairer had he obtained the disclosure which he sought, but the fact that it could have been better does not mean that it was not fair.
[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.
[17] Mr. Carson suspects that the decision may have been made on grounds other than those which are specified in the legislation. There was information before Treasury Board which was not relevant to the statutory test but which may have influenced Treasury Board in its deliberations.
[18] It is now known that the making of Mr. Carson"s application resulted in a request for repayment of the amounts paid to Ms. Ferguson. It is also known that near the end of her life Ms. Maxwell became concerned about the question of pension entitlement and wrote a note in which she canvassed the various ways in which she could defeat a claim to her pension by Mr. Carson. The note includes the following telling comment:
| The problem of course is that as a 1 yr common-law husband he is entitled to " my pension and Beth to F/A1. |
[19] It may be that Treasury Board was influenced by what it perceived to be the contributor"s wishes. Counsel for the Crown conceded that the right to the surviving spouse"s pension is a statutory right which is not dependent upon the contributor"s wishes. If Treasury Board relied upon this ground in coming to its decision, it would be liable to be set aside as being made upon irrelevant considerations.
[20] Someone in the position of Mr. Carson cannot tell if the decision is the result of a disagreement on the assessment of the evidence, a state of affairs which would be sheltered from review, or is the result of extraneous considerations, such as those above. In Baker, the Supreme Court of Canada found that the duty of fairness may include the duty to give reasons even though there is no statutory obligation to do so. One of the factors to be considered in deciding whether reasons are required is the importance of the decision to the individual. Pension rights are very significant rights extending over long periods of time, and in many cases, make the difference between need and modest comfort. This may well be a case in which reasons are required.
[21] But the right to reasons does not exist in a vacuum. In particular, it seems sensible that where the statutory scheme does not require reasons to be given, a litigant must ask for reasons before complaining that none were provided.. Not all claimants will want reasons (for example, successful applicants). Furthermore, the decision maker ought to be given an opportunity to assess its position on the need to give reasons before being faced with an application for judicial review. Mr. Carson"s remedy, at the moment, is to ask for reasons. If Treasury Board does not provide them, then Mr. Carson may have a remedy based upon the reasoning in Baker. If the reasons disclose a decision made on the basis of irrelevant considerations, then Mr. Carson will require an extension of time to pursue his remedies. I leave that matter for the judge hearing the application, if indeed one is required.
[22] In the end, Mr. Carson"s application is dismissed without costs.
ORDER
The application is dismissed without costs.
"J.D. Denis Pelletier"
Judge
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1 No explanation is given for the expression F/A but it appears to be the abbreviation of a certain impolite expression which can be loosely rendered as "nothing at all".
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