Federal Court of Appeal Decisions

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

 

 

 

Heard at St-John's, Newfoundland and Labrador, on September 16, 2009.

Judgment delivered at Ottawa, Ontario, on October 5, 2009.

 

REASONS FOR JUDGMENT BY:                                                                               TRUDEL J.A.

CONCURRED IN BY:                                                                                                      RYER J.A.

DISSENTING REASONS BY:                                                                                 SHARLOW J.A.

 

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 Hickey wrote to the Minister asking that her application be withdrawn.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:

 

[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"

APPENDIX

 

 

 

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                              A-381-08

 

STYLE OF CAUSE:                                                              Eugene Upshall v. Attorney General of Canada

 

PLACE OF HEARING:                                                        St-John's, Newfoundland and Labrador

 

DATE OF HEARING:                                                          September 16, 2009

 

REASONS FOR JUDGMENT BY:                                     TRUDEL J.A.

 

CONCURRED IN BY:                                                         SHARLOW J.A.

                                                                                                RYER J.A.

 

DATED:                                                                                 October 5, 2009

 

 

APPEARANCES:

 

Eugene Upshall	ON HIS OWN BEHALF
Allan Matte	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

John H. Sims, Q.C. Deputy Attorney General of Canada

FOR THE RESPONDENT