Date:
20071203
Docket:
A-74-07
Citation: 2007
FCA 383
CORAM: DESJARDINS
J.A.
NOËL
J.A.
TRUDEL
J.A.
BETWEEN:
THE ATTORNEY
GENERAL OF CANADA
Applicant
and
PHYLLIS
MATHESON
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Halifax, N.S., on December 3, 2007)
TRUDEL J.A.
[1]
This is an application for judicial review by
the Attorney General of Canada (applicant) asking this court to set aside a
decision rendered by the Pension Appeals Board (Board) on January 15,
2007. The Board dismissed the application to have a previous Order issued
by it amended.
[2]
From November 2003 to November 2005, the
Minister of Human Resources and Social Development Canada (the Minister) and
Ms. Matheson were involved in a litigation concerning Ms. Matheson’s
eligibility to a disability pension under the Canada Pension Plan,
R.C.S., 1985, c. C-8.
[3]
On October 26, 2005, the parties entered into a
consent to judgment by which Ms. Matheson was recognized to be disabled within
the meaning of the Canada Pension Plan as of January 2003 and to be
entitled to benefits as of May 2003. Therefore, the Board issued an Order
allowing Ms. Matheson's appeal in accordance with the consent to judgment
signed by the parties.
[4]
In December 2005, the Minister realized that he
had made an error concerning the effective date of payment: that date
should have been February 2004 and not May 2003 because of Ms. Matheson's
application for credit-splitting in accordance with the Division of
Unadjusted Pensionable Earnings (DUPE) of the Canada Pension Plan in
January 2004.
[5]
In January 2006, counsel for the Minister sent
a letter to Ms. Matheson requesting her to sign an amended consent to judgment
reflecting a date of payment of February 2004. She refused. On April 6,
2006, the Minister filed a Notice of Motion with the Board requesting the
issuance of an amended Order to that effect.
[6]
The Board dismissed the application, and unanimously
decided that it was functus officio, and without jurisdiction to deal
with the matter, concluding that the initial decision of November 2005
reflected the manifest intention of the Board and of the parties.
[7]
The applicant submits that the Board “accepted
an agreement which cannot be implemented as it is contrary to the provisions of
the Canada Pension Plan and therefore illegal” (paragraphs 29 and 37 of
applicant’s memorandum of fact and law). The applicant adds that the
Board’s Order “in itself is a nullity since it was made contrary to the law”.
It ensues that the Board should be permitted to reconsider the matter afresh
and render a valid decision.
[8]
We are of the opinion that the Pension Appeals
Board made no error in deciding as it did. It applied the correct
standard of review to the question of law in front of it: correctness (Canada (Minister of Human
Development) v. Scott, 2003 FCA 34).
[9]
This case, as presented, does not fall within
the exceptions of Chandler v. Alberta Association of
Architects, [1989] 2 S.C.R. 848, a leading case dealing with the principle
of functus officio in the context of administrative
tribunals. There was no slip in drawing up the Board's Order; there
certainly was no error in expressing the manifest intention of the Board in
view of the agreement entered into by the parties (Paper Machinery Ltd. v.
J.O. Ross Engineering Corp., [1934] S.C.R. 186). This case also fails to
meet the test of subsection 84(2) of the Canada Pension Plan, that is a
case where the Board may, on new facts, rescind or amend its decision.
[10]
We question the appropriateness of the recourse
chosen by the applicant who sought, from the Board, an amendment to the
original Order that homologated the parties’ transaction based on its
nullity. We feel that the applicant should have sought the annulment of
the agreement in front of the appropriate forum. Before the parties can start
afresh, the impugned agreement must be invalidated. There cannot be a valid
agreement if the consent of one or both parties is vitiated.
[11]
We cannot ignore that the respondent accepted
the applicant’s offer. The Board simply endorsed the consent to judgment
in conformity with section 19.1 of the Pension Appeals Board Rules of
Procedure (Benefits), C.R.C., c. 390. The appeal was allowed
within the parameters set up by the parties and within the jurisdiction of the
Board.
[12]
For these reasons, this application for judicial
review will be dismissed without costs.
“Johanne
Trudel”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-74-07
(APPEAL
FROM A DECISION OF THE PENSION APPEALS BOARD, DATED JANUARY 15, 2007.)
STYLE OF CAUSE: The
Attorney General of Canada
Applicant
and
Phyllis
Matheson
Respondent
PLACE OF HEARING: Halifax,
Nova Scotia
DATE OF HEARING: December 3, 2007
REASONS FOR JUDGMENT OF THE
COURT BY: DESJARDINS J.A.
NOËL J.A.
TRUDEL
J.A.
DELIVERED FROM THE BENCH BY: TRUDEL J.A.
APPEARANCES:
|
Sandra Gruescu
|
FOR
THE APPLICANT
|
|
Phyllis Matheson
|
ON
HER OWN BEHALF
|
SOLICITORS
OF RECORD:
|
John H. Simms, QC
Deputy
Attorney General of Canada
|
FOR THE APPLICANT
|
|
|
|
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