Docket: T-1288-14
Citation: 2014 FC 1179
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, December 8, 2014
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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SERGE DESCHÊNES
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision dated April 25, 2014, by the Department of Public Works and Government
Services [Department] wherein it was determined that the applicant’s period of
service with the Government of Quebec, between October 6, 1986, and April 1,
1990, was not valid for the purposes of a service buyback.
[2]
The impugned decision was made under the
authority of clauses 6(1)(b)(iii)(F) and (K) of the Public Service
Superannuation Act, RSC 1985, c P-36 [Act], which state:
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6. (1) Subject to this Part, the following service may be counted
by a contributor as pensionable service for the purposes of this Part:
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6. (1) Sous réserve des autres dispositions
de la présente partie, le service qui suit peut être compté par un
contributeur comme service ouvrant droit à pension pour l’application de la
présente partie :
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[…]
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[…]
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(b) elective
service, comprising,
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b) le service accompagné d’option, comprenant
:
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[…]
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[…]
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(iii) with
reference to any contributor,
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(iii) relativement
à un contributeur :
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[…]
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[…]
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(F) any period
of service in pensionable employment immediately prior to becoming employed
in the public service, if he elects, within one year of becoming a
contributor under this Part, to pay for that service,
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(F) toute
période de service dans un emploi ouvrant droit à pension, immédiatement
avant de devenir employé dans la fonction publique, s’il choisit, dans le
délai d’un an après qu’il est devenu contributeur selon la présente partie,
de payer pour ce service,
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[…]
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[…]
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(K) any period of
service described in this paragraph, except a period described in clause (M)
or (N), for which the contributor might have elected, under this Part, Part I
of the Superannuation Act, the Canadian Forces Superannuation Act,
the Royal Canadian Mounted Police Superannuation Act or any order in
council made under The Canadian Forces Act, 1950, as amended by the Canadian
Forces Act, 1954, to pay, but for which the contributor failed so to
elect within the time prescribed therefor, if the contributor elects, at any
time before ceasing to be employed in the public service, to pay for that
service
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(K) toute période
de service décrite au présent alinéa — sauf si elle est visée à la division (M)
ou (N) — pour laquelle il aurait pu choisir, selon la présente partie, la
partie I de la Loi sur la pension de retraite, la Loi sur la
pension de retraite des Forces canadiennes, la Loi sur la pension de
retraite de la Gendarmerie royale du Canada ou tout décret pris en vertu
de la Loi de 1950 sur les forces canadiennes, modifiée par la Loi
de 1954 sur les forces canadiennes, de payer, mais pour laquelle il a
omis de faire un choix dans le délai imparti à cette fin, s’il opte, à tout
moment avant de cesser d’être employé dans la fonction publique, de payer
pour ce service
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[Emphasis added.]
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[soulignements
ajoutés]
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[3]
On November 21, 2009, the applicant submitted an
application to buy back the years of pensionable service in pensionable
employment for the Government of Quebec he could have counted by participating
in the Government and Public Employees Retirement Plan. The dispute between the
parties relates to the date on which the applicant ceased to be in pensionable
employment. Subsection 13(3) of the Public Service Superannuation
Regulations, CRC, c 1358 [Regulations] specifies that the period of service
in pensionable employment shall not, in any case, be deemed to be immediately
prior for the purposes of clause 6(1)(b)(iii)(F) of the Act if the contributor
became employed in the public service after two years from the time he ceased
to be employed in pensionable employment.
[4]
The applicant has been a federal public servant
since February 1, 1993. Prior to that, the applicant had worked for the Government
of Quebec between October 6, 1986, and April 30, 1989, while on March
31, 1989, he was permitted to take two years’ leave without pay to start a
business – namely, from May 1, 1989, to May 1, 1991. During his years of
service as a provincial public servant, the applicant contributed to the
Government and Public Employees Retirement Plan for the period from October 6,
1986, to April 1, 1990. This plan is administered by the
Commission administrative des régimes de retraite et d’assurance du Québec
[CARRA]. The applicant did not return to his employment
with the Government of Quebec on May 1, 1991.
[5]
If the applicant had ceased to be an employee of
the Government of Quebec on the last date on which CARRA indicates that he was
considered to be in service, namely, April 1, 1990, a period of more than two
years passed after he had ceased to be in pensionable employment. However, if
the applicant had ceased to be an employee of the Government of Quebec at the
end of the leave without pay that was granted to him, namely, May 1, 1991, two
years would not have passed and the period of employment with the Government of
Quebec could be deemed to be immediately prior. In the second scenario, the
applicant would have been able to buy back the period of service from October
6, 1986 to April 30, 1989, while in the first, the option exercised was invalid
and his buyback application could not be approved by the Minister.
[6]
In addition to requesting that the impugned
decision be set aside, the applicant now wants the Court to order the
Department to recognize the applicant’s service during the period from October
6, 1986 to April 30, 1989 as being pensionable, as the Department had allegedly
recognized in a decision dated December 15, 2010. The respondent vigorously
disputes the applicant’s claims. I am satisfied in this case that a reasonableness
standard of review applies to questions of fact and to questions of mixed fact
and law, which are in issue here: Public Service Alliance of Canada v
Attorney General of Canada, 2008 FC 474 at para 18, affirmed by 2009 FCA 6
at para 6; Nash v Canada (Attorney General), 2013 FC 683 at para 15.
[7]
This application for judicial review must fail.
[8]
To begin with, the fact that the applicant
started making monthly contributions as of November 2009, created no legitimate
expectation that the buyback application would ultimately be accepted by the
Minister. First, the service buyback is only valid if the applicant
successfully undergoes a medical examination. Second, following the receipt of
the first monthly payment of $788.62, in November 2009, it was clearly
indicated in the letter dated December 10, 2009, that the Department sent to
the applicant to acknowledge receipt of the Election Form for Elective
Pensionable Service (PWGSC 3006) [buyback application]
that “we must still determine the validity of your
service buyback” and that “ [o]nce all
the requirements of your service buyback have been met, we will provide you
with the Service Buyback Notice (PWGSC 2097).
[9]
The applicant claims that the Department had
already ruled in his favour, and that it did so in a definitive manner, on
December 15, 2010. He relies on an email sent to him by an employee of the
Department that states, in particular:
[translation]
Time credited with CARRA and therefore
pensionable with the public service: October 6, 1986, to April 30, 1989.
Leave without pay from May 1, 1989, to May
1, 1991, not credited with CARRA, therefore not pensionable.
[10]
According to the applicant, the December 15,
2010, e-mail amounts to a “decision” that expressly recognized the right to buy
back the years of service for the period from October 6, 1986, to
April 30, 1989. This must mean that the Department implicitly recognized the
validity of the buyback option. The applicant further claims that the interpretation
of the wording “immediately prior” in clause 6(1)(b)(iii)(F) of the Act
is discretionary, and given that the December 15, 2010, e-mail is a “decision”,
the Minister’s discretion to make a decision was therefore spent according to
the so-called functus officio doctrine. The impugned decision dated
April 25, 2014, was therefore made without jurisdiction, while the doctrine of
estoppel (if not that of legitimate expectation) means that the December 15,
2010, decision must be restored, which the respondent naturally disputes.
[11]
In this case, the December 15, 2010, e-mail is
not a [translation] “final
decision”. The doctrine of estoppel does not apply. The Department’s conduct
created no legitimate expectation and the Department had ample jurisdiction to
issue the impugned decision, dated April 25, 2014, which constitutes an
acceptable outcome in light of the applicable law and the evidence in the
record.
[12]
First, it is clear that we are not dealing with
the exercise of discretion. Clause 6(1)(b)(iii)(F) of the Act and
subsection 13(3) of the Regulations set out precise conditions that must be met
in order for a service buyback to be legally valid. These provisions grant no
discretion to the decision-maker. Moreover, subsection 13(3) of the Regulations
clearly states that a period of service having ended more than two years before
the start of a contributor’s employment in the public service shall not “in any case” be deemed to have been “immediately prior”
for the purposes of clause 6(1)(b)(iii)(F). The Department therefore has
an obligation to ensure that the pre-determined standard in the Act and
Regulations are met in this case.
[13]
Second, the December 15, 2010, e-mail is not a
final decision. The applicant was given advance notice in writing that when his
buyback application was processed, he would receive a Service Buyback Notice
(TPSGC 2097). The December 15, 2010, e-mail merely provides information in a
process that was still ongoing and that had not been completed – as is
demonstrated by the employee’s statement to the effect that a request for the
applicant’s service would be made to the Armed Forces in the event the new
rules applied.
[14]
In addition, on September 17, 2013, the buyback
application was sent to the Pension Centre’s Audit Section which, on September
24, 2013, issued a quality control observation indicating that CARRA documents showed
that the applicant had ceased employment on April 1, 1990, and not on
May 1, 1991, as the applicant had previously indicated. The service buyback was
therefore invalid because the applicant’s period of service with the Government
of Quebec had ended more than two years before the start of his service with
the federal public service.
[15]
Before issuing the impugned decision dated April
25, 2014, the decision-maker diligently sought clarifications from the
applicant or documents that could corroborate his claim that he had in fact
ceased employment on May 1, 1991, rather than on April 1, 1990, as was
indicated by the CARRA. Thus, on November 28, 2013, an employee of the Pension
Centre e-mailed the applicant requesting that he submit documentation showing
his date of resignation from the Government of Quebec. On April 11, 2014, a
Pension Centre employee spoke with the applicant by telephone and requested
that he provide a letter or a confirmation of the actual date on which he
ceased his employment at the Government of Quebec. According to the notes of
the Pension Centre employee, the applicant told him that the information was in
the file, that he had taken all possible measures, and that he would contact
neither the Government of Quebec nor the CARRA.
[16]
In this case, the impugned decision is reasonable
and is based on the evidence in the record. The fact that the applicant was
granted two years of leave without pay on March 31, 1989, does not,
in and of itself, prove that he effectively ceased to be in the employ of the Government
of Quebec on May 1, 1991, because he could very well have tendered his
resignation before the end of his leave without pay. While it is true that the
first part of the Pensionable Employment Questionnaire completed by the
applicant indicates May 1, 1991, as the date on which he ceased employment, the
second part of the same questionnaire completed by the CARRA, as well as the
letter from the CARRA dated October 13, 2010, indicate that the date on which
he ceased employment was April 1, 1990.
[17]
In conclusion, based on the information
contained in the record, it was therefore reasonable for the decision-maker to
conclude that the date on which the applicant ceased his employment was April
1, 1990, and therefore a period of more than two years had passed between the
end of the applicant’s employment with the Government of Quebec and the
beginning of his employment with the federal public service.
[18]
For these reasons, the application for judicial
review will be dismissed. Given the outcome, the respondent is entitled to costs.
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