Date: 20091005
Docket: A-381-08
Citation: 2009 FCA 284
CORAM: SHARLOW
J.A.
RYER
J.A.
TRUDEL
J.A.
BETWEEN:
EUGENE UPSHALL
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This
is an appeal arising from an Order by Mactavish J. (the Judge), dated June 26,
2008, whereby she denied Mr. Upshall’s application for judicial review of the
decision of a designated Member of the Pension Appeals Board (PAB), who refused
Mr. Upshall’s leave to appeal from a Review Tribunal (RT) decision.
[2]
For
the reasons that follow, I propose to allow the appeal and remit the matter
back to the Board for a redetermination by another Member. Therefore, while I
acknowledge and state in these reasons Mr. Upshall’s arguments concerning both
legislative intent and his section 15 Charter rights, there will be no
need to address them in substance.
[3]
The
relevant facts reveal that the appellant and his
wife, Ms. Hickey, divorced in 1999. In March 2004, Ms. Hickey applied for a
division of her Canada Pension Plan unadjusted pensionable earnings
(pensionable earnings). Under the Canada Pension Plan, R.S.C. 1985, c.
C-8) (the Plan), pensionable earnings are divided equally between the
spouses when their marriage or common-law relationship ends.
[4]
In
April 2004, Ms. Hickey wrote to the Minister asking that her application be
withdrawn. Her request was denied as the division was the result of a divorce.
Upon reconsideration, at the request of the appellant, the Minister upheld his
previous decision. A review of the file confirmed that Ms. Hickey’s earnings
were higher as a result of the division and that she would receive a greater
benefit upon application for a retirement or disability pension (appeal book,
tab 5, page 63). Therefore, Mr. Upshall appealed the Minister’s decision to the
RT.
[5]
The
Minister’s decision was grounded on section 55.1 of the Plan which, in
its relevant parts, reads as follows:
|
Canada Pension
Plan,
R.S.C. 1985, c. C-8)
55.1 (1) Subject to
this section and sections 55.2 and 55.3, a division of unadjusted
pensionable earnings shall take place in the following circumstances:
(a)
in the case of spouses, following the issuance of a decree absolute of
divorce, a judgment granting a divorce under the Divorce Act or a judgment of
nullity of the marriage, on the Minister’s being informed of the decree or
judgment, as the case may be, and receiving the prescribed information;
…
(5)
Before a division of unadjusted pensionable earnings is made under this
section, or within the prescribed period after such a division is made, the
Minister may refuse to make the division or may cancel the division, as the
case may be, if the Minister is satisfied that
(a)
benefits are payable to or in respect of both persons subject to the
division; and
(b)
the amount of both benefits decreased at the time the division was made or
would decrease at the time the division was proposed to be made.
(Emphasis is
mine)
|
Régime de pensions du
Canada,
L.R.C. 1985, ch. C-8)
55.1 (1) Sous réserve des autres
dispositions du présent article et des articles 55.2 et 55.3, il doit y avoir
partage des gains non ajustés ouvrant droit à pension dans les
circonstances suivantes :
a) dans le cas
d’époux, lorsqu’est rendu un jugement irrévocable de divorce, un jugement
accordant un divorce conformément à la Loi sur le divorce ou un jugement en
nullité de mariage, dès que le ministre est informé du jugement et dès qu’il
reçoit les renseignements prescrits;
[…]
(5)
Avant qu’ait lieu, en application du présent article, un partage des gains
non ajustés ouvrant droit à pension, ou encore au cours de la période
prescrite après qu’a eu lieu un tel partage, le ministre peut refuser
d’effectuer ce partage, comme il peut l’annuler, selon le cas, s’il est
convaincu que :
a)
des prestations sont payables aux deux personnes visées par le partage ou à
leur égard;
b)
le montant des deux prestations a diminué lors du partage ou diminuerait au
moment où il a été proposé que le partage ait lieu.
(L’emphase
est la mienne)
|
[6]
The
appellant does not challenge the legality of the above-cited provision. Rather,
he disagrees with the Minister’s decision not to allow Ms. Hickey to withdraw
her application and with the Minister’s interpretation and application of that
section of the Plan, which, he feels, were done contrary to the
legislative intent and in violation of his section 15 Charter rights.
[7]
Mr. Upshall
has been arguing, at all levels, that the Minister should not have processed
Ms. Hickey’s application for a division of pensionable earnings, given that his
own pensionable earnings would be reduced by such a division, without
conferring any real benefit on Ms. Hickey, once the Child Rearing Dropout
provisions of the Plan (Dropout provisions) were taken into account in
calculating her pension entitlement.
[8]
As
explained by the Judge, the Dropout provisions allow contributors to drop
periods out of the calculation where the contributor has not been working
outside of the home or where the contributor’s earnings have gone down, because
the contributor was raising a child under seven years of age (reasons for Order
at paragraphs 16-17). I understand therefore that dropping out periods of low
earnings may have a favourable effect on the ultimate amount of a contributor’s
pension benefits.
[9]
In
the case at bar, Ms. Hickey was the spouse who could have claimed the benefits
of the Dropout provisions. As of this date, she chose not to exercise that
discretionary right.
[10]
The
appellant contends that by ignoring the Dropout provisions in the calculation
of Ms. Hickey’s entitlement, the Minister changed the rule and proceeded to the
division of “adjusted” pensionable earnings.
[11]
This
argument was the main focus of the RT’s decision whereby the appellant’s thesis
was dismissed on two grounds: (a) a division of the ex-spouses’ unadjusted
pension earnings was mandatory following the issuance of their final divorce
decree; and (b) the RT was without jurisdiction to grant an appeal based on
subsections 55.1(5) and 66(4) of the Plan.
[12]
Both
the Judge and the designated Member of the PAB seized with the application for
leave to appeal endorsed the RT’s conclusion on “jurisdiction”. I emphasize this
word because I am of the view that the issue does not present itself as a
jurisdictional matter.
[13]
But
before going on, I will now reproduce the relevant passages from both
decisions. In the case of the PAB, the relevant portion is the whole
decision. It reads:
The Review Tribunal did
not have jurisdiction in a case such as this and properly dismissed the appeal.
For the same reasons leave to appeal to the Pension Appeals Board is refused
(appeal book, page 25).
[14]
For
her part, the Judge was “satisfied that the RT was correct in holding that it
had no jurisdiction to grant relief to Mr. Upshall under either subsection
55.1(5) or subsection 66(4) of the Canada Pension Plan” (reasons for
Order at paragraph 46). She therefore concluded that the designated Member of
the PAB had not erred in denying leave to the appellant.
[15]
This
purported lack of jurisdiction of the RT to entertain the appeal, once
accepted, should have been enough to dispose of the matter (at all levels) in a
summary fashion.
[16]
However,
the RT, in the event that it was in error on the jurisdictional issue, had gone
on to consider the substance of Mr. Upshall’s submissions (decision of the RT,
appeal book, tab 5, page 33 at paragraph 22; Judge’s reasons for Order at
paragraph 20).
[17]
These
incidental remarks by the RT had a compelling effect on the Judge who also
proceeded to analyze the merits of the appellant’s arguments on (a) the
Minister’s failure to consider the Dropout provisions and; (b) the Minister’s
discriminatory interpretation of the impugned section of the Plan. With
respect, I am of the view that the Judge should not have done so as she was
called upon solely to judicially review the decision of the designated Member
of the PAB. A leave application is a preliminary step to the hearing on the merits.
The applicant need not prove his case at this stage (respondent’s letter dated
March 17, 2004, appeal book, tab 5, pages 129-130).
[18]
As
mentioned by the respondent at paragraph 48 of his memorandum of fact and law:
48. In determining whether
to interfere with a decision of a designated Member of the PAB concerning an
application for leave, the Court must consider two issues:
a) whether the application
for leave raises an arguable case without otherwise assessing the merits of the
application; and
b) whether the decision
maker has erred in law or in appreciation of the facts in determining whether
an arguable case is raised. If new evidence is adduced with the application, if
the application raises an issue of law or of relevant significant facts not
appropriately considered by the Review Tribunal in its decision, an arguable
issue is raised for consideration and it warrants the grant of leave.
(Callihoo, v. Canada (Attorney General), [2000] F.C.J. No. 612
(T.D.)(QL) at paragraph 15[Callihoo])
[19]
I am
also reminded that in exercising his/her discretion to grant leave to appeal
pursuant to subsections 83(1) and 83(2) of the Plan, (relevant
portions appended to these reasons) a designated Member is entitled to a high degree
of deference (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 CSC 9 at
paragraph 51). However, subsection 83(3) (also appended to these
reasons) requires
that the person who refuses leave give written reasons; the designated Member’s
reasons were inadequate.
[20]
All
this being said, I disagree with the Order of the Federal Court for several
reasons.
[21]
Firstly,
it was an error of law to uphold the decision of the designated Member of the
PAB and to conclude, as he had, that the RT did not have jurisdiction to
entertain Mr. Upshall’s argument under section 55.1 of the Plan.
[22]
It
appears that the RT had examined the appellant’s claim regarding the Minister’s
decision under section 55.1 as if the benefit had been denied due to
departmental error. In such a case, subsection 66(4) of the Plan, cited
by the RT at paragraph 17 of its decision, provides for a remedy to be
determined at the sole discretion of the Minister with the purpose of placing
“the person in the position that the person would be in under this Act had the
erroneous advice not been given or the administrative error not been made” (paragraph
66(4)(b) of the Plan). Viewed from that angle, the RT could not
have entertained a claim. This approach to the appellant’s argument obviously
led the RT to qualify the issue as a jurisdictional matter.
[23]
However,
the gist of the appellant’s argument was that the Minister’s interpretation of
section 55.1 of the Plan was unfair, discriminatory and wrong in law.
Pursuant to sections 81 and 82 of the Plan (relevant portions appended
to these reasons) the RT may, amongst other things, hear the appeal of a former
spouse who is dissatisfied with any decision made under section 55.1.
[24]
Secondly,
the judicial review was aimed at the discretionary decision of a designated
Member of the PAB who had denied leave to appeal in the most laconic way,
thereby making it impossible to identify, let alone assess, the basis for his decision.
Under those circumstances, no deference was owed.
[25]
Had
the Judge, following the teachings of Callihoo, directed her attention
more closely to the designated Member’s decision rather than to that of the RT,
I am persuaded that she would have allowed the application given the record,
the error of law committed regarding the RT’s powers under the Plan and
the failure of the designated Member to even mention the arguments put forward
by the appellant, which raised an arguable case for consideration.
[26]
I
would therefore allow this appeal with costs, I would set aside the Order of
the Federal Court and, giving the Order that the Federal Court should have
given, I would set aside the decision
of the PAB’s designated Member and I would
refer the matter back to the Board for a redetermination by another Member on
the basis that leave to appeal the decision of the RT should be granted.
"Johanne
Trudel"
“I
agree
C. Michael Ryer J.A.”
SHARLOW
J.A. (dissenting
reasons)
[27]
I
agree with my colleague Justice Trudel that the Review Tribunal has the
jurisdiction to entertain an appeal from a decision of the Minister under
section 55.1 of the Canada Pension Plan, that Mr. Upshall was in
substance appealing such a decision even though he also invoked section 66 of
the Canada Pension Plan, and that the disposition of Mr. Upshall’s
application for judicial review should not have turned on the issue of
jurisdiction. However, Justice Mactavish also concluded that, as a matter of
law, Mr. Upshall’s appeal from the Minister’s decision could not succeed. In my
view, that was a sound alternative ground for dismissing Mr. Upshall’s
application for judicial review. I would dismiss this appeal.
"K. Sharlow"
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