Date: 20060510
Docket: A-364-05
Citation: 2006 FCA 172
CORAM: SEXTON J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
ANNA MARIA CARTER
Applicant
and
MINISTER OF SOCIAL DEVELOPMENT (FORMERLY MINISTER OF HUMAN RESOURCES DEVELOPMENT) and SHAUNA GRANT
Respondents
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an application for judicial review by Anna Maria Carter to set aside a decision of the Pension Appeals Board, dated, July 11, 2005. The Board dismissed Ms Carter's appeal from a decision of the Review Tribunal, dated January 17, 2003, upholding a decision of the Minister of Human Resources Development Canada that she was not entitled to a survivor's pension under paragraph 44(1)(d) of the Canada Pension Plan, R.S.C. 1985, c. C-8, on the death of her husband, William Carter.
[2] The Carters separated less than a year after they were married. Although Ms Carter commenced an action for divorce soon afterwards, she did not proceed with it. The Minister found that, at the time of his death, Mr Carter and Shauna Grant had been cohabiting for the prior 12 months in a conjugal relationship and that, accordingly, Ms Grant was entitled to the survivor's pension. In these circumstances, since Ms Grant had applied for the pension, the Minister advised Ms Carter that she was not entitled as Mr Carter's surviving spouse.
[3] Ms Carter appeared in person before the Board, as did Ms Grant as intervener. Ms Carter argued that the Tribunal had erred in concluding that Mr Carter and Ms Grant were cohabiting in a conjugal relationship. Dismissing this argument, the Board held that the evidence supporting the Tribunal's conclusion was "overwhelming".
[4] Ms Carter was represented before us by counsel, who advanced two arguments in support of the application for judicial review to set aside the Board's decision. Neither appears to have been put before the Board. On an application for judicial review, the Court may decline to conduct the review on the basis of submissions that were not, but could have been, argued before the administrative tribunal whose decision is being challenged. However, since the issues raised by counsel are questions of law, Ms Carter was not represented by counsel until her case reached this Court, and the Minister is not prejudiced by having to respond, I would decide the merits of counsel's arguments.
[5] It was common ground between the parties, and is well established in the jurisprudence, that questions of law decided by the Board in interpreting the Plan are reviewable on a standard of correctness.
[6] First, counsel argued that the Board had erred in law by basing its decision on the definition of "spouse" contained in subparagraph 2(1)(a)(ii) of the Plan. This definition was repealed as of July 31, 2000. The Board should have based its decision on the version that replaced it on the same date, since Mr Carter, a contributor to the Plan, died in November 2000.
[7] I agree that the Board was wrong to rely on the statutory definition of "spouse" that was no longer in force when Mr Carter died, rather than the definition of "survivor" in effect at Mr Carter's death. However, the substantive change made by the amendments was to broaden the definition of those entitled to a survivor's pension to include the survivor of a same-sex couple. Counsel did not persuade us that the Board's error was material to its conclusion on the facts of this case.
[8] In his oral submissions, counsel conceded that the Board's decision would not have been different if it had based it on the relevant version of the Plan. Nonetheless, he said, the Court should intervene to correct an immaterial error of law committed by the Board, so that Ms Carter could challenge the validity of the legislation under section 15 of the Charter, on the basis that it deprived a married spouse of a pension, in favour of an unmarried cohabitee.
[9] I do not agree. If a tribunal's error is not material to the decision under review, the Court should not set it aside simply to allow the applicant an opportunity to re-litigate the matter by advancing a new legal argument before the tribunal.
[10] Counsel's second argument was that, if approached in a purposive manner and with an eye to avoiding absurd or arbitrary consequences, the Plan should not be interpreted as providing that the pension was payable to either the legally married survivor or the cohabiting survivor, but not to both. Rather, he argued, the pension should be paid to both.
[11] I do not agree. In my view, Parliament has spoken clearly on who is entitled to a survivor's pension, and it is not the function of the Court to rewrite the law in order to achieve what counsel says would be less arbitrary results.
[12] The applicable provision of the Plan, subsection 42(1), is as follows:
| "survivor", in relation to a deceased contributor, means
(a) if there is no person described in paragraph (b), a person who was married to the contributor at the time of the contributor's death, or
(b) a person who was the common-law partner of the contributor at the time of the contributor's death.
|
« survivant » S'entend :
a) à défaut de la personne visée à l'alinéa b), de l'époux du cotisant au décès de celui-ci;
b) du conjoint de fait du cotisant au décès de celui-ci.
|
[13] At the same time, Parliament enacted in subsection 2(1) a new definition of a common law partner:
| "common-law partner", in relation to a contributor, means a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year. For greater certainty, in the case of a contributor's death, the "relevant time" means the time of the contributor's death.
|
« conjoint de fait » La personne qui, au moment considéré, vit avec un cotisant dans une relation conjugale depuis au moins un an. Il est entendu que, dans le cas du décès du cotisant, « moment considéré » s'entend du moment du décès.
|
[14] Counsel based his argument on the word "or" at the end of paragraph (a) of the above definition of "survivor". He submitted that, while normally disjunctive, "or" is also capable of being conjunctive, and should be so interpreted when required by a purposive construction of legislation, as is the case with the survivor's pension. Accordingly, the Board erred in assuming that either Ms Carter or Ms Grant was entitled, but not both.
[15] While "or" can be used a conjunctive sense, the structure of subsection 42(1) makes it crystal clear that it bears its normal, disjunctive meaning, and that only one person can qualify as a "survivor".
[16] Counsel concedes that he cannot now dispute that Ms Grant is Mr Carter's survivor within the definition of paragraph 42(1)(b). It follows from this that the claim of Ms Carter as the surviving spouse under paragraph 42(1)(a) cannot be considered, because paragraph 42(1)(a) only applies "if there is no person described in paragraph (b)". Since Ms Grant is such a person, Ms Carter cannot base a claim for a pension on paragraph 42(1)(a).
[17] I am not persuaded that the purposes of the legislation or any potentially harsh consequences of adopting its plain meaning, warrant our departing from the unambiguous words of subsection 42(1). Further, if counsel is correct to say that it is harsh to interpret the Plan in a manner that denies Ms Carter a pension, it is not difficult to imagine facts where it would be equally harsh to interpret it as providing a pension to the married spouse at the expense of the cohabitee.
[18] If Parliament intended that the pension be shared by two survivors, it could have so provided, as it did in section 26.1(1) of the Canadian Forces Superannuation Act, R.S.C. 1985, c. C-17, an admittedly different scheme from the Plan. However, the fact that no similar provision is contained in the Plan further supports my conclusion that Parliament had no such intention with regard to the survivor's pension in subsection 44(1).
[19] For these reasons, the application for judicial review will be dismissed. Counsel for the Minister did not request costs and none will be awarded.
"John M. Evans"
"I agree"
"J. Edgar Sexton"
"I agree"
"B. Malone"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-364-05
STYLE OF CAUSE: Anna Maria Carter v. Minister of Social Development
et al
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: May 9, 2006
REASONS FOR JUDGMENT: Sexton, Evans, Malone JJ.A.
DATED: May 10, 2006
APPEARANCES:
Mr. Leonard C. Dudley FOR THE APPLICANT
Ms. Tania Nolet FOR THE RESPONDENT
SOLICITORS OF RECORD:
Paine Edmonds LLP FOR THE APPLICANT
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
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