Date: 20030909
Docket: T-661-02
Citation: 2003 FC 1049
Ottawa, Ontario, September 9, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
LINE BÉLANGER
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
LOUISE-ELLA GOYETTE
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Treasury Board dated February 15, 2002, dismissing the applicant's claim for surviving spouse benefits under subsection 13(2) of the Public Service Superannuation Act, 1985 [the Act].
FACTS
[2] Raymond Carrier and Louise-Ella Goyette were married on June 21, 1958, under the regime of separation as to property. The couple lived in Quebec.
[3] From about October 21, 1981, they lived separately.
[4] On May 21, 1985, the Superior Court of Quebec issued a judgment of separation as to bed and board, Ms. Goyette having established Mr. Carrier's adultery.
[5] On October 20, 1994, a separation agreement was entered into by the parties, in which, inter alia: (I) Mr. Carrier undertook to pay support of $600.00 per month, with indexation in accordance with the law, beginning on January 1, 1995; (ii) he acknowledged that he was to repay the sum of $1,450.00, in installments of $200.00 per month, on the last day of every month beginning on October 31, 1994; (iii) Ms. Goyette was to send an application for diversion of support from the public service in order to receive these sums directly from the Department of Supply and Services (where the sums diverted by the Department were insufficient, Mr. Carrier undertook to pay them directly, failing which Ms. Goyette could seize his assets pursuant to the Garnishment, Attachment and Pension Diversion Act.)
[6] This agreement was ratified by the Superior Court of Quebec on November 14, 1994.
[7] The applicant, a resident of Quebec, claims that she was Mr. Carrier's common law spouse from 1980 until he died.
[8] Mr. Carrier was employed at the Transportation Safety Board of Canada until May 11, 1990, the date of his retirement.
[9] Mr. Carrier was a contributor to the superannuation account of the Public Service of Canada, in accordance with the definition provided by the Act.
[10] In a form entitled "Naming or Substitution of a Beneficiary for Supplementary Death Benefit" (Part II of the Act), Mr. Carrier names the applicant as beneficiary.
[11] Following the death of Mr. Carrier on October 27, 1998, the applicant applied for surviving spouse benefits, as Mr. Carrier's common law spouse.
[12] The legal widow of the deceased, Ms. Goyette, a respondent in the case at bar, also applied for this benefit.
[13] On February 15, 2002, Linda Belliveau, Statutory Interpretation Section of the Superannuation Directorate of the Department of Public Works and Government Services Canada, advised the applicant that Treasury Board had denied her claim, that Ms. Goyette's claim had been approved and that the latter was considered the only surviving spouse of Mr. Carrier for the purposes of the Act.
[14] That decision is the subject of this judicial review application.
ISSUES
[15] 1. Did Treasury Board make an error warranting the intervention of this Court in denying the applicant's claim for surviving spouse benefits?
2. Did Treasury Board fail to observe a principle of natural justice, procedural fairness or any other procedure with which it was lawfully bound to comply?
RELEVANT LEGISLATION
[16] Subsection 3(1) of the Act defines the term "survivor":
| "survivor", in relation to a contributor, means
(a) a person who was married to the contributor at the time of the contributor's death, or
(b) a person referred to in subsection 25(4).
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« _survivant_ » Personne qui_:
a) était unie au contributeur par les liens du mariage au décès de celui-ci;
b) est visée au paragraphe 25(4). |
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[17] Paragraph 12(4)(a) of the Act refers to the allowance:
| 12(4) On the death of a contributor who, at the time of death, was entitled under subsection (1) to an immediate annuity, a deferred annuity or an annual allowance, the survivor and children of the contributor are entitled to the following allowances, computed on the basis of the product obtained by multiplying the average annual salary of the contributor during the period applicable, as specified in subsection 11(1) or elsewhere in this Part for the purposes of that subsection, by the number of years of pensionable service to his or her credit, one one-hundredth of the product so obtained being referred to in this subsection as the "basic allowance":
(a) in the case of the survivor, an immediate annual allowance equal to the basic allowance, . . .
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12(4) Au décès d'un contributeur qui, au moment de son décès, avait droit de recevoir, selon le paragraphe (1), une pension immédiate, une pension différée ou une allocation annuelle, son survivant et ses enfants sont admissibles aux allocations suivantes, calculées sur la base du produit obtenu par multiplication du traitement annuel moyen du contributeur pour la période applicable, spécifié au paragraphe 11(1), ou ailleurs dans la présente partie pour l'application de ce paragraphe, par le nombre d'années de service ouvrant droit à pension qu'il a à son crédit, le centième du produit ainsi obtenu étant ci-après appelé l' « _allocation de base_ » _:
a) dans le cas du survivant, une allocation annuelle payable immédiatement, égale à l'allocation de base; [...] |
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[18] Subsection 13(2) of the Act refers to the allowances payable to the survivor and the children of the contributor:
| 13(2) On the death of a contributor who, at the time of death, was entitled under subsection (1) to an immediate annuity or a deferred annuity, or to an annual allowance payable immediately or on reaching fifty years of age, the survivor and children of the contributor are entitled to an annual allowance respectively, as described in paragraphs 12(4)(a) and (b) and subject to the limitations set out in subsections 12(4) and (5).
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13(2) Au décès d'un contributeur qui, au moment du décès, avait droit, d'après le paragraphe (1), d'obtenir une pension immédiate ou une pension différée, ou une allocation annuelle payable immédiatement ou lorsqu'il atteint l'âge de cinquante ans, son survivant et ses enfants ont droit, respectivement, à une allocation annuelle décrite aux alinéas 12(4)a) et b), sous réserve des restrictions indiquées aux paragraphes 12(4) et (5). |
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[19] Subsection 25(4) of the Act establishes the criteria that would allow a person to be considered a "survivor" of a contributor:
| 25(4) For the purposes of this Part, when a person establishes that he or she was cohabiting in a relationship of a conjugal nature with the contributor for at least one year immediately before the death of the contributor, the person is considered to be the survivor of the contributor.
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25(4) Pour l'application de la présente partie, a la qualité de survivant la personne qui établit que, au décès du contributeur, elle cohabitait avec lui dans une union de type conjugal depuis au moins un an. |
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[20] Subsection 25(10) of the Act refers to the apportionment of the amount of the allowance when there are two survivors:
| 25(10) When an annual allowance is payable under paragraph 12(4)(a) or subsection 13(2) and there are two survivors of the contributor, the total amount of the annual allowance shall be apportioned so that
(a) the survivor referred to in paragraph (a) of the definition "survivor" in subsection 3(1) is entitled to receive the proportion of the annual allowance that the total of the number of years that he or she cohabited with the contributor while married to the contributor and the number of years that he or she cohabited with the contributor in a relationship of a conjugal nature bears to the total number of years that the contributor so cohabited with the survivors; and
(b) the survivor referred to in paragraph (b) of that definition is entitled to receive the proportion of the annual allowance that the number of years that he or she cohabited with the contributor in a relationship of a conjugal nature bears to the total number of years that the contributor cohabited with the survivors, either while married or while in a relationship of a conjugal nature. |
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25(10) Si une allocation annuelle est payable au titre de l'alinéa 12(4)a) ou du paragraphe 13(2) à deux survivants, le montant total de celle-ci est ainsi réparti_:
a) le survivant visé à l'alinéa a) de la définition de « _survivant_ » au paragraphe 3(1) a droit à une part de l'allocation en proportion du rapport entre le nombre total d'années de cohabitation avec le contributeur dans le cadre du mariage, d'une part, et dans une union de type conjugal, d'autre part, et le nombre total d'années de cohabitation des survivants avec celui-ci dans le cadre du mariage et dans une union de type conjugal;
b) le survivant visé à l'alinéa b) de cette définition a droit à une part de l'allocation en proportion du rapport entre le nombre d'années où il a cohabité avec le contributeur dans une union de type conjugal et le nombre total d'années où les survivants ont cohabité avec lui dans le cadre du mariage et dans une union de type conjugal. |
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[21] Section 26 of the Act establishes the consequences of cohabitating after the retirement:
| 26. (1) Subject to section 13.1 but notwithstanding any other provision of this Part, the survivor of a contributor is not entitled to an annual allowance in respect of the contributor under this Part if that contributor married the survivor or began to cohabit with the survivor in a relationship of a conjugal nature after having become entitled under this Part to an annuity or annual allowance, unless, after the marriage, or after the beginning of the period of cohabitation, the contributor became or continued to be a contributor under this Part. |
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26. (1) Sous réserve de l'article 13.1, mais nonobstant les autres dispositions de la présente partie, le survivant d'un contributeur n'a droit à aucune allocation annuelle à l'égard de ce dernier au titre de la présente partie si le mariage ou le début de la cohabitation dans une union de type conjugal est postérieur à l'acquisition par cette personne du droit, en vertu de cette partie, à une pension ou à une allocation annuelle, à moins que, par la suite, le contributeur ne soit devenu ou demeuré contributeur selon la même partie.
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ANALYSIS
Standard of review
[22] There is no doubt in my mind that paragraph 25(a) of the Act confers upon Treasury Board the discretion to consider a person to be a contributor's spouse. In Canadian Pasta Manufacturers' Association v. Aurora Importing & Distributing Ltd. (1997), 208 N.R. 329, [1997] F.C.J. No. 115, the Federal Court of Appeal states:
[6] . . .
Whether or not the Tribunal's decisions are protected by a privative or finality clause, the standard of review in this Court for alleged errors of fact is that set out in paragraph 18.1(4)(d) of the Federal Court Act:
| 18.1 ...
(4) The trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
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(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; |
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18.1 [...]
(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas:
[...]
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; |
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We cannot see any practical difference between that standard and the standard of patent unreasonableness.
[7] I conclude, therefore, that the parties have correctly agreed that the standard of review in this case is patent unreasonableness.
Respondent's record, Vol. II, page 601.
[23] Nor is there any doubt that a finding to the effect that a person is or is not cohabitating with a contributor and that this contributor introduces this person as his or her spouse in public evidently constitutes a finding of fact with which the Court cannot intervene unless such finding was made in a perverse or capricious manner or without regard for the material in the record.
[24] The courts are always reluctant to intervene in judicial review applications when decisions are made based on findings of fact. The Court's intervention should only be warranted if Treasury Board's findings of fact are patently unreasonable.
1. Did Treasury Board make an error warranting the intervention of this Court in denying the applicant's claim for surviving spouse benefits?
[25] From a reading of the documents that were submitted to Treasury Board before it made its decision, it is clear there were a certain number of contradictory aspects.
[26] Treasury Board, through its representative, requested clarification about its concerns on several occasions.
[27] It must be noted, from the outset, that Treasury Board was confronted with two claims coming from two different people claiming to have rights as a surviving spouse.
[28] The evidence indicates that Mr. Carrier and the respondent Ms. Goyette have been legally separated since the end of 1981.
[29] Between 1981 and 1998, the year in which he died, Mr. Carrier moved on a number of occasions and the evidence submitted by the applicant, with respect to their living together, raised a number of questions for Treasury Board, and justifiably so. According to the evidence submitted on October 24, 1988, Mr. Carrier signed a service election form. On this form, his mailing address is indicated as 150 Dorval Avenue, Dorval, Apartment 1407, while the applicant provided secondary evidence showing that, at that time, she lived at 150 Dorval Avenue, Dorval, Apartment 1207. When confronted with this discrepancy, the applicant stated that apartment 1407 was an office and that they were in fact living together at that time.
[30] Later, on May 2, 1990, Mr. Carrier filled out an income tax form declaring: "[Translation] I do not have a spouse and I do not share a self-contained domestic establishment with any person other than a dependant child". When confronted with this, the applicant suggested this was only a statement for tax purposes and that at the time she was indeed sharing her residence with Mr. Carrier.
[31] A further aspect, this one even more serious, was the execution on October 20, 1994, of a separation agreement between Mr. Carrier and his lawful spouse, Ms. Goyette, in which it is stipulated:
[Translation] The respondent (Mr. Raymond Carrier) declares that, while he may have resided with a third person, he has not done so and is not presently doing so as husband and wife, that he does not consider this person to be a common law spouse and that in fact, she has not been and is not in any way.
Respondent's record, Vol. II, page 576.
[32] The record indicates that this separation agreement was ratified on November 14, 1994, by the Superior Court of Quebec. When confronted with this information, the applicant's counsel suggested that in fact Mr. Carrier was lying at that time and that he was faced with the seizure of his pension income and that he had no choice but to sign such a declaration. Unfortunately, it is difficult for the Court to accept such an explanation given that Mr. Carrier is deceased; if a validly executed document is to be contested - and one, moreover, that was filed in the Superior Court of Quebec - this Court is entitled to expect more substantial explanations.
[33] The final contradiction raised is that the applicant provided a copy of a T-4 form that had been issued to her by Revenue Canada in 1997, at the address 795 des Bouleaux West, Québec, while the address of Mr. Carrier at that time was 1670 de la Trinité, apartment 3, Québec.
[34] Treasury Board contacted both the applicant and her counsel on numerous occasions in order to obtain further clarifications and a statutory declaration that could support the applicant's version regarding the obvious contradictions appearing in the record.
[35] It appears that some partial answers were sent to Treasury Board. However, a request sent to the applicant's counsel dated September 26, 2001, in order to obtain a statutory declaration attesting to the steps taken to find secondary evidence to support the applicant's claim for survivor's benefits, did not receive a satisfactory response. Further, in a letter dated October 1, 2001, the applicant's counsel stated that he had no intention to send another declaration as Treasury Board had requested.
[36] As a result of the amendments made to the Civil Code of Québec, it is now much easier to adjudicate between the beneficiaries of pension funds. In the case at bar, for a reason unknown to the Court , the parties decided to perpetuate a situation that can be characterized as confused in regard to their true status.
[37] The respondent, Ms. Goyette, was separated as to bed and board but remained nonetheless the legitimate spouse of Mr. Carrier. As for Mr. Carrier, he deliberately chose to perpetuate an ambiguous situation where his marital status was concerned. It is quite obvious that the support payment to his wife had income tax advantages for him, since he could deduct the amount of support paid.
[38] Had he proceeded to divide the pension, whether at the time of separation in 1981 or at the time of his judgment in 1985, the total amount of pension to be paid would have been reduced appreciably. Had he proceeded with this division in 1990, when he retired, he would have undoubtably lost a significant amount of income that would have been paid directly to his wife. He could have applied to the court to stop paying support, but then he would have lost the tax advantage.
[39] Whatever the case, the Court will never know exactly what reasons led Mr. Carrier to perpetuate this ambiguous situation, which has forced both the applicant and the respondent to go to Court to settle the matter.
[40] This Court, under these circumstances, cannot substitute its own judgment for Treasury Board's, as Mr. Justice Pelletier said so well in Carson v. Canada (Attorney General) (1999), 182 F.T.R. 119, [1999] F.C.J. No. 2010:
[16] As for the allegation that the decision must be the result of a finding of fact which is perverse or made in capricious manner, there was evidence on which Treasury Board could have found that Ms. Maxwell did not reside with Mr. Carson in the year preceding her death, or that she did not hold him out as her spouse in that same interval. There is evidence which, if accepted, would have satisfied the statutory test, but it is not the function of this Court to substitute its judgment for Treasury Board's. While I would not necessarily come to the same conclusion as did Treasury Board, I am unable to say that its conclusion is capricious or arbitrary.
[41] It falls to the Court, in circumstances such as these, to determine if the procedure adopted by Treasury Board was followed in accordance with established procedures.
[42] It appears that Treasury Board accumulated a significant amount of information from a number of different sources. Faced with the inaccuracies and contradictions in the documents filed by all parties, it communicated without hesitation with the parties on numerous occasions in order to obtain additional information. It was only after it had given the parties every opportunity to explain these inaccuracies or concerns raised by the documents submitted that Treasury Board finally made its decision.
[43] Again, as Pelletier J. stated in Carson, supra, I would not necessarily have come to the same conclusion as Treasury Board if I, myself, had to make a decision in this matter. However, despite having read the documents submitted to me very carefully and analysed the arguments submitted orally by counsel, I am unable to conclude that Treasury Board's decision was arbitrary or that it was patently unreasonable warranting the intervention of this Court.
2. Did Treasury Board fail to observe a principle of natural justice, procedural fairness or any other procedure with which it was lawfully bound to comply?
[44] The principal argument raised by the applicant on the issue of procedural fairness is that Treasury Board did not give reasons for its decision.
[45] It is clear from the exchange of correspondence between the parties, that Treasury Board identified, on several occasions, the weak points of the applicant's file and the information that had to be conveyed to enable it to make the best decision, in light of the circumstances and the evidence submitted.
[46] Early on, the applicant was aware of Treasury Board's concerns about the claim in light of the glaring contradictions in the file. In Carson, supra, Pelletier J. states:
[14] . . . in Baker, supra, this in itself does not make the content of the duty of fairness obvious. In order to determine the content, it seems to me that one must ask another question, which is, did the procedure adopted by the Branch allow Mr. Carson to fairly know and meet the case against his claim? If it did, then the duty of fairness has been met. The fact that some other procedure would have given Mr. Carson a better opportunity to make out his case is not necessarily fatal to the position of the Branch. It is always possible to improve a claimant's ability to make their case by providing them with a full scale hearing and pre-hearing discovery procedures. The question is not whether some other procedure would be better but whether the procedure adopted by the agency in question, in this case the Branch, gave the claimant the information he needed to know the case to be met and the opportunity to meet it.
[47] It seems clear to me that Treasury Board, on several occasions, told the applicant what objections had been raised that prevented it from favourably responding to the application and the ways in which to remedy the situation. In the circumstances, this approach specifically fulfils the duty of procedural fairness. This issue was also addressed in Carson, supra, where Pelletier J. states:
[15] On the facts of this case, that standard has been met. The Branch's letter of September 14, 1995 contained all the information which Mr. Carson required in order to address the concerns of the decision-maker. He knew the issues to be addressed and he knew the kind of proof which the decision-maker considered persuasive. He also had the opportunity to respond before the decision was made. In my view, Mr. Carson had the benefit of a fair procedure.
[48] I have no hesitation, therefore, in concluding that Treasury Board fulfilled its obligations of procedural fairness in this case.
ORDER
THE COURT ORDERS THAT:
[1] This application for judicial review be dismissed.
[2] With costs.
"Pierre Blais"
JUDGE
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOSSIER: T-661-02
STYLE OF CAUSE: Line Bélanger v. Attorney General of Canada
and Louise-Ella Goyette
PLACE OF HEARING: Québec
DATE OF HEARING: August 20, 2003
REASONS FOR ORDER AND ORDER: The Honourable Mr. Justice Blais
DATE OF REASONS: September 9, 2003
APPEARANCES:
Manès Webster FOR THE APPLICANT
Guy Blouin FOR THE RESPONDENT (ATTORNEY GENERAL OF CANADA)
Denis Gingras FOR THE RESPONDENT (LOUISE-ELLA GOYETTE)
SOLICITORS OF RECORD:
Moreau et Webster FOR THE APPLICANT
Charlesbourg, Quebec
Department of Justice - Canada FOR THE RESPONDENT
Ottawa, Ontario (ATTORNEY GENERAL OF CANADA)
Gingras, Vallerand, Laroche FOR THE RESPONDENT
Québec, Quebec (LOUISE-ELLA GOYETTE)