Date: 20071213
Docket: T-1351-06
Citation: 2007 FC 1313
Ottawa, Ontario, December 13, 2007
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
JEDRZEJ
H. SELL
Applicant
and
ATTORNEY GENERAL OF CANADA
and THE MINISTER OF HUMAN
RESOURCES DEVELOPMENT CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1]
Mr.
Jedrzej Sell (the “Applicant”) seeks judicial review pursuant to Section 18.1
of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, of a
decision made by a Review Tribunal constituted under the Canada Pension Plan,
R.S.C. 1985, c. C-8 (the “CPP”). In that decision, dated July 5, 2006, the
Review Tribunal dismissed the Applicant’s appeal from the decision of the
Review Tribunal, rejecting his request to be awarded a full pension pursuant to
the Old Age Security Act, R.S.C. 1985, c. O-9, as amended (the “Act”).
In his Notice of Application, the Applicant describes the relief sought as
follows:
… applicant is requesting to be granted a
full OAS Pension as well as to strike down or initiate rewriting of the OAS
Act as being contrary to Subsection 15(1) of the Charter.
I. Background
[2]
The
Applicant was born in Poland on January 3, 1940. He entered Canada as a landed immigrant on November 2, 1979. On March 11, 2004, he applied for an Old Age
Security (“OAS”) pension pursuant to the Act. On April 22, 2004, Human
Resources Development Canada (“HRDC”) awarded the Applicant a partial pension
at a rate of 24/40ths of the full OAS pension. In a letter dated June
23, 2004, the Applicant requested reconsideration of that decision and sought
the award of a full pension.
[3]
By letter
dated July 9, 2004, HRDC advised the Applicant that it was maintaining the
original decision to award a partial, rather than a full pension. However, the
amount of the pension was increased from 24/40ths to 25/40ths. HRDC gave the
following reasons for its decision:
On July 1, 1977 the Old Age Security
Act was amended by the Canadian House of Commons to base the Old Age
Security benefits upon the years of residence in Canada. As you did not apply to become a landed
immigrant of Canada prior to July 1, 1977 the amount of your Old Age Security
pension is determined by the number of years you resided in Canada after the age of 18 until the
month of your 65th birthday. We have determined that you will have 25 years and
91 days of Canadian residence on the last day of the month of your 65th
birthday. Therefore you are entitled to receive 25/40ths of an Old Age Security
pension.
[4]
The
Applicant wrote a letter on August 9, 2004, to the Commissioner of Review
Tribunals, stating that he was appealing the decision of HRDC as set out in the
letters of April 22, 2004 and July 9, 2004. That letter was treated as a
“Notice of Appeal” and the appeal was heard before the Review Tribunal on March
29, 2006.
[5]
The
Applicant represented himself at the hearing of the Review Tribunal. According
to his written submissions dated January 20, 2005, the Applicant was
challenging the constitutionality of section 3 of the Act on the grounds that
this provision was discriminatory, contrary to subsection 15(1) of the Canadian Charter of Rights and
Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act, 1982 (U.K.), 1982, c. 11 (the “Charter”). The Applicant gave notice of a
constitutional question as required by section 57 of the Federal Courts Act,
R.S.C. 1985, c. F-7.
[6]
In written
submissions filed before the Review Tribunal, the Respondent HRDC identified
three issues:
1) whether the Charter has retrospective application;
2) whether section 3(1) of the OAS breaches the equality
guarantee in subsection 15(1) of the Charter; and
3) if subsection 3(1) offends subsection
15(1), is subsection 3(1) of the OAS saved by section
1 of the Charter.
[7]
The
Respondent HRDC called an expert witness, Mr. Rodney Hagglund. Mr. Hagglund produced
a report addressing the residency requirements of the OAS Program, as well as
the rationale for those requirements. In the written submissions filed by HRDC
before the Review Tribunal, Mr. Hagglund's report was used to demonstrate the
justification of the residency requirements pursuant to section 1 of the
Charter.
[8]
The Review
Tribunal delivered its decision on July 5, 2006. A two-member majority of the
Review Tribunal dismissed the Applicant’s appeal. The Review Tribunal
characterized the Applicant’s entry to Canada on November 2, 1979, as an “event” which
occurred prior to the coming into force of the Charter and it determined that
the Charter did not have retrospective application to this event.
[9]
As a
result of its conclusion with respect to retrospective application of the Charter,
the majority found that it was not necessary to determine whether section 3 of
the Act infringed the Applicant’s rights pursuant to subsection 15(1) of the
Charter.
[10]
The third
member of the Review Tribunal wrote a dissenting opinion, in which he concluded
that the Applicant’s entry into Canada
in 1979 was an “ongoing status”. He conducted a section 15 Charter
analysis of subsection 3(1) of the Act, and determined that this provision offended
section 15 of the Charter and was not justified pursuant to section 1 of the
Charter. He concluded that section 3 of the Act is of no force or effect
pursuant to subsection 52(1) of the Constitution Act, 1982 and declared
that the Applicant is entitled to a full pension under the Act.
II. Submissions
A. The Applicant's Submissions
[11]
The
Applicant submits that the majority of the Review Tribunal erred in concluding
that the Charter does not have retrospective application in his case. Basing
his arguments upon the dissenting opinion, he disputes the characterization of
his entry into Canada on November 2, 1979, as an
“event”. Rather, he submits that the characteristic of having arrived in Canada after July 1, 1977, is held
against him in a discriminatory fashion.
[12]
The
Applicant challenges the Respondents’ argument, as adopted by the majority,
that the timing of his entry into Canada
was a matter of his own personal choice.
[13]
The
Applicant further submits that the Respondents have shown prejudice against him
by arguing that “common sense” suggests that the date of his entry into Canada was a matter of choice. He
further submits that the Respondents wrongfully omitted “an important word” in
quoting paragraph 54 of the decision in Benner v. Canada (Secretary of
State), [1997] 1 S.C.R. 358.
[14]
The
Applicant argues that the majority mistakenly relied on the decision in R.
v. Stevens, [1988] 1 S.C.R. 1153. He says that this decision deals with
retrospective application of section 5, not subsection 15(1), of the Charter.
[15]
The
Applicant relies on the decision of the dissenting member of the Review Tribunal
and urges the Court to allow the application.
B. The Respondents' Submissions
[16]
The
Respondents submit that since this application raises a question of law, that
is, the retrospective application of the Charter, the decision of the Review Tribunal
should be reviewed upon the standard of correctness.
[17]
Next, the
Respondents argue that having regard to the evidence before the Review Tribunal
and the language of section 3 of the Act, the authors of the majority decision
correctly determined that the Applicant’s appeal involves the retrospective
application of the Charter. The Respondents submit that in light of the fact
that the Applicant had entered Canada before the Charter came into force,
the Review Tribunal was required to decide whether this entry was an “event” or
“ongoing status”. The decision of the majority that the Applicant’s entry was
an “event” is consistent with the jurisprudence, including the decisions in Benner,
Sutherland v Canada, [1997] F.C.J. No. 3; leave
to appeal to the S.C.C. dismissed, [1997] S.C.C.A. No. 377 (QL), and Bauman
v. Nova
Scotia
(Attorney General), [2001] N.S.J. No. 115
(N.S.C.A.); leave to appeal to the S.C.C. dismissed, [2001] S.C.C.A. No. 27
(QL).
[18]
In
response to the Applicant’s argument that the Respondents omitted the word
“generally” in quoting paragraph 54 of Benner and did not refer to
paragraph 56 of that decision, the Respondents submit that the reasons of the
majority show that the members understood the law and guiding principles
arising from Benner. The majority quoted from paragraph 54 of Benner
and said that characteristics resulting from a choice to take are “more likely”
to be classified as events. Further, they submit that the majority’s findings, that
the Applicant’s entry into Canada and the changes to the
residency requirements under the Act occurred prior to the Charter, are
consistent with paragraph 56 of Benner. This shows that the majority was
aware of and applied the allegedly “missing” paragraphs of the Benner
decision.
[19]
With
respect to the dissenting opinion, the Respondents submit that this opinion is
unpersuasive and not determinative of this application for judicial review.
[20]
The
Respondents raised submissions regarding the Review Tribunal’s consideration of
the evidence and respect for procedural fairness. First, the Respondents say
there is nothing in the decision to suggest that the Review Tribunal failed to
consider the evidence or to examine it in the context of the Charter arguments
that were advanced. They submit that the Applicant cannot ask the
Court to reweigh the evidence in an application for judicial
review. In this regard, the Respondents rely on the decision in Osborne v. Canada (Attorney General), (2005) FCA 412 (QL).
[21]
Second,
the Respondents submit that there is nothing to show that the Review Tribunal
acted with prejudice. The Review Tribunal assisted the Applicant by providing
him with copies of Charter jurisprudence at the hearing of the appeal, the Review
Tribunal explained the purpose of the hearing and encouraged the Applicant to
make submissions and to ask questions during the hearing.
[22]
Finally,
the Respondents submit that the relief sought by the Applicant cannot be
granted by the Court upon an application for judicial review. Should the Court
find a reviewable error, the only relief available is an order referring the
matter back for a rehearing before a differently constituted Review Tribunal.
III. Discussion and Disposition
[23]
The
Applicant is arguing that the Tribunal erred in dismissing his appeal on the
basis that it would involve a retrospective application of the Charter. Largely
because it is so legally driven, it is my view that this issue should be
reviewed on a correctness standard.
[24]
In Canada (Minister of Human Resources
Development) v. Chhabu
(2005), 280 F.T.R. 296, Justice Layden-Stevenson conducted a pragmatic and
functional analysis to determine the standard on which a Review Tribunal’s
decision regarding residency under the Act should be reviewed. At paragraphs 20
- 24 of Chhabu she wrote:
The powers of the Review Tribunal are not
contained in the Act. Rather, as noted earlier, the Review Tribunal is
established under section 82 of the Canada Pension Plan, R.S.C. 1985, c. C-8
(the CPP). There is a privative clause of sorts, contained in subsection 84(1)
of the CPP, the strength of which is bolstered by the fact that a decision of
the Review Tribunal on an appeal under subsection 28(1) of the Act cannot be
further appealed to a Pension Appeals Board (subsection 83(1) of the CPP).
Subsection 84(1) of the CPP and subsection 28(3) of the Act do, however,
explicitly recognize judicial review of a Review Tribunal's decision.
Nonetheless, the presence of this privative clause does suggest deference to a
Review Tribunal's decision determining an appeal under the Act.
The issue of residency in relation to OAS
eligibility is one that the Review Tribunal is regularly called upon to
determine. The factual circumstances of each case call for findings that fall
within its expertise and thus militate in favour of deference. In interpreting
the definition of residency, however, the Court is equally or better
positioned.
The Act confers a benefit to certain
individuals and establishes who is entitled to the receipt of benefits and to
what extent. To that end, it involves the adjudication of an individual's
rights. The conferment of benefits, however, is balanced with the interests of
fairness and financial responsibility. The Minister is charged with the
administration and integrity of the Act and the public interest in ensuring
that applicants are not paid benefits to which they are not entitled. Thus, the
Act provides for the adjudication of individual rights but is also polycentric
in nature. This factor results in neither a high nor a low degree of deference.
The nature of the question involves
applying the correct legal test to various facts and is therefore one of mixed
fact and law. It is more factually than legally driven (see: Ding, supra
and Perera v. Canada (Minister of Health and
Welfare)
(1994), 75 F.T.R. 310 (F.C.T.D.) wherein it was determined that residency is a
question of fact to be determined in the particular circumstances). This factor
favours more deference.
Having regard to these factors, it is my
view that the applicable standard of review is reasonableness. …
[25]
In the
present case, I would adopt Justice Layden-Stevenson’s standard of review analysis
with two variations. First, with respect to the second factor, I suggest that
this Court has more expertise than the Review Tribunal in interpreting and
applying the Charter. This factor thus attracts less deference.
[26]
Second,
with respect to the fourth factor, I agree that the nature of the question here
likewise involves applying the correct legal test to facts and is accordingly, a
question of mixed fact and law. However, in the present case, the question in
issue is legally driven. The fourth factor attracts less deference. Upon
balancing the four factors, I conclude that the applicable standard of review
is that of correctness.
[27]
The
legislation provision at the heart of this application is section 3 of the Act.
Subsection 3(1) identifies those persons to whom a full monthly pension may be
paid under the Act:
|
3(1)
Subject to this Act and the regulations, a full monthly pension may be paid
to
(a)
every person who was a pensioner on July 1, 1977;
(b)
every person who
(i)
on July 1, 1977 was not a pensioner but had attained twenty-five years of age
and resided in Canada or, if that person did not reside in Canada, had
resided in Canada for any period after attaining eighteen years of age or
possessed a valid immigration visa,
(ii)
has attained sixty-five years of age, and
(iii)
has resided in Canada for the ten years immediately preceding the day on
which that person’s application is approved or, if that person has not so
resided, has, after attaining eighteen years of age, been present in Canada
prior to those ten years for an aggregate period at least equal to three
times the aggregate periods of absence from Canada during those ten years,
and has resided in Canada for at least one year immediately preceding the day
on which that person’s application is approved; and
(c)
every person who
(i)
was not a pensioner on July 1, 1977,
(ii)
has attained sixty-five years of age, and
(iii)
has resided in Canada after attaining eighteen
years of age and prior to the day on which that person’s application is
approved for an aggregate period of at least forty years.
|
3(1)
Sous réserve des autres dispositions de la présente loi et de ses règlements,
la pleine pension est payable aux personnes suivantes :
a)
celles qui avaient la qualité de pensionné au 1er juillet 1977;
b)
celles qui, à la fois :
(i)
sans être pensionnées au 1er juillet 1977, avaient alors au moins vingt-cinq
ans et résidaient au Canada ou y avaient déjà résidé après l’âge de dix-huit
ans, ou encore étaient titulaires d’un visa d’immigrant valide,
(ii)
ont au moins soixante-cinq ans,
(iii)
ont résidé au Canada pendant les dix ans précédant la date d’agrément de leur
demande, ou ont, après l’âge de dix-huit ans, été présentes au Canada, avant
ces dix ans, pendant au moins le triple des périodes d’absence du Canada au
cours de ces dix ans tout en résidant au Canada pendant au moins l’année qui
précède la date d’agrément de leur demande;
c)
celles qui, à la fois :
(i)
n’avaient pas la qualité de pensionné au 1er juillet 1977,
(ii)
ont au moins soixante-cinq ans,
(iii)
ont, après l’âge de dix-huit ans, résidé en tout au Canada pendant au moins
quarante ans avant la date d’agrément de leur demande.
|
[28]
Subsection
3(2) identifies those persons to whom a partial monthly pension may be paid:
|
3(2)
Subject to this Act and the regulations, a partial monthly pension may be paid
for any month in a payment quarter to every person who is not eligible for a
full monthly pension under subsection (1) and
(a)
has attained sixty-five years of age; and
(b)
has resided in Canada after attaining eighteen years of age and prior to the
day on which that person’s application is approved for an aggregate period of
at least ten years but less than forty years and, where that aggregate period
is less than twenty years, was resident in Canada on the day preceding the
day on which that person’s application is approved.
|
3(2)
Sous réserve des autres dispositions de la présente loi et de ses règlements,
une pension partielle est payable aux personnes qui ne peuvent bénéficier de
la pleine pension et qui, à la fois :
a)
ont au moins soixante-cinq ans;
b)
ont, après l’âge de dix-huit ans, résidé en tout au Canada pendant au moins
dix ans mais moins de quarante ans avant la date d’agrément de leur demande
et, si la période totale de résidence est inférieure à vingt ans, résidaient
au Canada le jour précédant la date d’agrément de leur demande.
|
[29]
The Applicant relies
on subsection 15(1) of the Charter in making his claim that section 3 of the
Act is discriminatory. Subsection 15(1) provides as follows:
|
15. (1) Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
|
15.
(1) La loi ne fait acception de personne et s'applique également à tous, et
tous ont droit à la même protection et au même bénéfice de la loi,
indépendamment de toute discrimination, notamment des discriminations fondées
sur la race, l'origine nationale ou ethnique, la couleur, la religion, le
sexe, l'âge ou les déficiences mentales ou physiques.
|
[30]
The critical facts in
this matter are the date of the Applicant’s arrival in Canada and the date when the Charter came into force. The
Applicant arrived in Canada on November 2, 1979. At that time the
OAS imposed a ten year prior residency requirement for the award of a full
monthly OAS pension. The Charter came into effect on April 17, 1982. The
Review Tribunal identified the retrospective application of the Charter as the principal
issue to be determined. In my opinion, the Review Tribunal correctly identified
this issue since the Applicant is claiming the benefit of the Charter to
support his claim for a full monthly pension. The Charter was not in effect when
the OAS was amended in 1977 to introduce the residency requirement for the
award of a full monthly pension.
[31]
There is a general
rule that legislation does not have retrospective application; see Brosseau
v. Alberta Securities Commission, [1989] 1 S.C.R. 301. In Stevens,
the Supreme Court of Canada said that the Charter does not apply
retrospectively.
[32]
In Benner, the
Supreme Court of Canada again dealt with the issue of retrospectivity and ruled
that the Charter has no retrospective application. It focused on whether a
characteristic that arguably attracts the benefits of section 15 is an “event”
or an “ongoing status”. At paragraph 45, the Court described the difference
between these two states in the following terms:
The
question, then, is one of characterization: is the situation really one of
going back to redress an old event which took place before the Charter created
the right sought to be vindicated, or is it simply one of assessing the
contemporary application of a law which happened to be passed before the
Charter came into effect?
[33]
The majority of the
Review Tribunal characterized the date of the Applicant’s entry into Canada as an event, that is, a specific, discrete occurrence. It
found that this event did not give rise to a retrospective application of the
Charter and that the Charter did not apply to the Applicant’s complaint. It
further concluded that it was not required to consider the application of
section 15 in relation to the Applicant’s claim that section 3 of the OAS is
discriminatory.
[34]
On the basis of the
jurisprudence cited by the majority, I am of the opinion that the majority
correctly interpreted and applied the relevant law. There is no basis for
judicial intervention in its decision and this application is dismissed.
[35]
In the exercise of my
discretion, I make no order as to costs.
ORDER
The application for judicial review is
dismissed, no order as to costs.
“E.
Heneghan”
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