OTTAWA, Ontario, the 7th day of November 2005
PRESENT: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to subsection 18.1(1) of the Federal Courts Act concerning the decision of April 23, 2004 by the Minister of Human Resources Development Canada (respondent) finding that no administrative error was made or erroneous opinion given by an official that would have caused Ms. Paquette (the applicant) to lose her right to a division of pensionable earnings.
[2] The respondent found that no administrative error had been made or erroneous opinion given. The respondent admits, however, that he should have ruled that he had no jurisdiction to hear the matter.
INTRODUCTION
[3] This case involves a complicated factual situation. It is essential to distinguish clearly between the Québec Pension Plan (QPP) and the Canada Pension Plan (CPP).
[4] The applicant and Jacques A. Corbeil lived as de facto spouses between July 1, 1977 and July 25, 1991. Mr. Corbeil is a businessman and owns a number of hotels. In 1980, Mr. Corbeil hired the applicant to redecorate the interiors of all his hotels, including the guest rooms, bars and restaurants.
[5] However, in the 11 years during which the applicant "worked" for Mr. Corbeil, she did not receive any salary. Mr. Corbeil told the applicant that, since he paid for everything, she did not need a salary, even though he had previously promised her a regular salary.
[6] During their 14 years of cohabitation, the applicant and Mr. Corbeil made pension contributions under the Act respecting the Québec Pension Plan (AQPP), R.S.Q., c. R-9, but not under the Canada Pension Plan (CPP), R.S.C. (1985), c. C-8.
[7] The applicant alleges that she indicated her intention to apply to the Régie des rentes du Québec (Régie) for the partition of earnings between former spouses in 1992. The application was apparently turned down by the Régie because the legal proceedings concerning her separation from Mr. Corbeil had not been completed.
[8] The applicant alleges that she returned to an office of the Régie in Montreal on November 2, 1998, intending to apply for a partition of earnings between former spouses. This time, according to the applicant, the Régie rejected her application for the partition of earnings between former spouses because it was incomplete; Mr. Corbeil's social insurance number and birth certificate were missing. The applicant never completed her application to the Régie for the partition of earnings between former spouses.
[9] The applicant submits that the Régie made an administrative error or gave erroneous advice by neglecting to inform her that any application for the partition of earnings between former spouses must be submitted within four years after the couple separated. The applicant told the Court that no one in the Régie had asked about her marital status. She also stated that the Régie officials were not willing to offer any assistance.
[10] On March 14, 2002, the applicant submitted an application for a division of earnings between former spouses in Victoria, British Columbia, under the Canada Pension Plan (CPP).
[11] On August 15, 2002, the respondent advised the applicant that her application for a division of earnings had been rejected because it had not been filed within four years after the day on which the applicant stopped living common law with Mr. Corbeil. On August 26, 2002, the applicant asked the respondent to reconsider the decision of August 15, 2002.
[12] On July 8, 2003, the respondent informed the applicant that the decision had been reconsidered but upheld. However, the respondent failed to consider the fact that the division could not be considered under the CPP because it had to be done under the AQPP. Neither the applicant nor Mr. Corbeil had ever contributed to the CPP during their cohabitation.
[13] On July 16, 2003, the applicant informed the Office of the Commissioner of Review Tribunals that she wished to appeal the decision of July 8, 2003 to a review tribunal. No hearing was held before a review tribunal.
[14] In a telephone conversation with the respondent on an undetermined date, the applicant indicated that she had been misled concerning her application for division of earnings. More specifically, she alleges that an employee of the Régie had erroneously told her to wait until the legal proceedings involving her separation from Mr. Corbeil had been completed before submitting an application for a division of earnings. The applicant believes that this erroneous advice caused her to lose her right to a division of earnings between former spouses. The applicant alleges that her application to the CPP for a division of earnings should be allowed on the basis of this erroneous advice.
[15] Further to this conversation, an investigation was conducted into the possibility that an administrative error had been made or erroneous advice given by the respondent. The file was reviewed, and no evidence was found to support the applicant's statement that she had requested information on the division of earnings or that she had indicated an intention to submit an application for division of earnings in 1992.
[16] In a decision dated April 23, 2004, the respondent determined that no administrative error had been made or erroneous advice given in the applicant's case, thereby causing the rejection of the application for a division of earnings. The applicant now asks this Court to review the respondent's decision dated April 23, 2004.
[17] The applicant asks that her costs be reimbursed.
[18] The Minister of Human Resources Development Canada (respondent) found no evidence of administrative error or erroneous advice.
[19] I believe that this decision is correct, as it was not the CPP but the Régie that made the administrative error.
[20] Historically, issues of jurisdiction automatically involved the application of the correctness standard of review and invited the courts' intervention. However, according to Pushpanathan v. Canada (MCI), [1998] 1 S.C.R. 982, an issue of jurisdiction is a question of law, and a pragmatic and functional analysis of other factors must be applied. It is therefore possible that the standard of review for a jurisdictional issue may be unreasonableness or patent unreasonableness.
[21] The following four factors must be considered:
1. Privative clauses
3. Purpose of the Act as a whole, and the provision in particular
4. Nature of the problem: a question of law or fact?
[22] The respondent argues that, even though the decision is beyond his jurisdiction, it enjoys a high level of deference and may only be challenged by this Court if it is patently unreasonable. The respondent admits, however, that if the Court decides that the decision is patently unreasonable, the matter should be referred to the Minister of Human Resources Development Canada, who should, this time, find that he had no jurisdiction.
[23] I agree that the standard of judicial review is "patent unreasonableness".
ISSUES
[24] There are two issues in dispute:
1. Is the decision of the respondent, dated April 23, 2004, in which no evidence of administrative error or erroneous advice was found, patently unreasonable?
2. Does the Federal Court have jurisdiction in the matter?
SUBMISSION BY APPLICANT
[25] The applicant submits that in Montréal in 1992 and 1998, the Régie failed to inform her of the four-year time limit for applying for the partition of earnings between former spouses. The applicant alleges that this administrative error or erroneous advice resulted in the loss of her right to a division of pensionable earnings.
SUBMISSIONS BY RESPONDENT
[26] The respondent offered one main submission. Throughout the case, the respondent admitted that he should have found that he lacked jurisdiction to adjudicate the applicant's case for the following three reasons:
1. The administrative error originated in the Régie. The respondent was not involved in 1992 or in 1998. The respondent cannot be held responsible for the Régie's actions or for the opinions of its officials. The respondent did not become involved in this matter until in March 2002, when the applicant submitted an application for a division of earnings to an office that administers the CPP in Victoria, British Columbia.
2. The applicant never contributed to the CPP. Subsection 55.2(7) of the CPP stipulates that no division shall be made for any month in which either of the persons subject to the division contributed to a provincial pension plan. The earnings accumulated by the applicant and Mr. Corbeil during the period of cohabitation cannot be shared under the CPP, since they contributed to the Régie throughout their cohabitation.
3. The applicant was never entitled to the partition of pensionable earnings under the AQPP, because the applicant and Mr. Corbeil were never married; they were de facto spouses.
ANALYSIS
[27] I will address the applicant's submission first, then that of the respondent.
I. Applicant's Submission - Administrative Error by the Régie
[28] The applicant alleges that she tried to submit an application for the partition of earnings between former spouses to the Régie in 1992 and 1998. Her application could not be completed.
[29] The applicant asserts that the Régie failed to inform her of the four-year time limit for applying for the partition of earnings between former spouses. She alleges that this administrative error or erroneous advice resulted in the loss of her right to the partition of pensionable earnings. However, such is not the case under the AQPP.
[30] Under the AQPP, it was impossible for de facto spouses to apply for the partition of earnings prior to July 1, 1999; only since that date has the AQPP recognized the partition of earnings between former de facto spouses. Thus, the applicant's application for the partition of earnings between former de facto spouses would have been rejected by the Régie in 1992 and again in 1998.
[31] Thus, according to the AQPP, the applicant is not entitled to the partition of earnings, since the cohabitation occurred between 1977 and 1991.
[32] The applicant, meanwhile, alleges that the loss of her right to the partition of earnings was the result of an administrative error by the Régie. The Federal Court has no jurisdiction to review an administrative error made or erroneous advice given by the Régie. The Régie is a provincial entity of Quebec.
II. Respondent's Submission
[33] The only decision by the respondent under judicial review before this Court is the one dated April 23, 2004.
[34] Both decisions by the respondent, that is, the decisions of August 15, 2002 and April 23, 2004, should be mentioned.
1. Decision No. 1, August 15, 2002
[35] On August 15, 2002, the respondent informed the applicant that her application for the division of earnings had been rejected because it had not been made within four years after the day on which she stopped living common law with Mr. Corbeil, as stipulated in subsection 55.1(1) of the CPP.
[36] Subsection 55.1(1) reads as follows:
| 55.1(1) Subject to this section, subsections 55.2(2), (3) and (4) and section 55.3, an application for a division of the unadjusted pensionable earnings of former spouses may be made in writing to the Minister by or on behalf of either former spouse, by the estate of either former spouse or by such person as may be prescribed, within thirty-six months or, where both former spouses agree in writing, at any time after the date of a decree absolute of divorce, of a judgment granting a divorce under the Divorce Act or of a judgment of nullity of the marriage, granted or rendered on or after January 1, 1978 and before January 1, 1987.
(2) For the purposes of this section,
(a) notwithstanding paragraphs (b) and (c), the former spouses must have cohabited for at least thirty-six consecutive months during the marriage before an application made under subsection (1) may be approved by the Minister;
(b) the marriage shall be deemed to have been solemnized or nullified or a divorce deemed to have been made final on the last day of the year preceding the registered date of the marriage or the judgment of nullity or the effective date of a decree absolute of the divorce or of a judgment granting a divorce under the Divorce Act; and
(c) the former spouses shall be deemed to have cohabited throughout the year in which the marriage was solemnized, and shall be deemed not to have cohabited at any time during the year of divorce or of annulment of the marriage.
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55.1(1) Sous réserve des autres dispositions du présent article, des paragraphes 55.2(2), (3) et (4) et de l'article 55.3, une demande écrite de partage des gains non ajustés ouvrant droit à pension d'ex-époux peut, dans les trente-six mois suivant la date d'un jugement irrévocable de divorce, d'un jugement accordant un divorce conformément à la Loi sur le divorce ou d'un jugement accordant la nullité d'un mariage, s'il est rendu avant le 1er janvier 1987 sans l'avoir été avant le 1er janvier 1978, être présentée au ministre par, ou de la part de, l'un ou l'autre des ex-époux, par leurs ayants droit ou par toute personne visée par règlement. Les ex-époux peuvent convenir par écrit de présenter la demande après l'expiration du délai de trente-six mois.
(2) Pour l'application du présent article :
a) par dérogation aux alinéas b) et c), les ex-époux doivent avoir cohabité durant le mariage pendant au moins trente-six mois consécutifs avant qu'une demande visée au paragraphe (1) puisse être approuvée par le ministre;
b) le mariage est réputé avoir été célébré ou annulé et le divorce réputé irrévocable le dernier jour de l'année précédant la date enregistrée du mariage, du jugement prononçant la nullité du mariage, la prise d'effet du jugement irrévocable de divorce ou du jugement accordant le divorce conformément à la Loi sur le divorce;
c) les ex-époux sont réputés avoir cohabité pendant toute l'année où a eu lieu la célébration du mariage et ne pas avoir cohabité pendant l'année du divorce ou de l'annulation du mariage.
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[37] The respondent rejected the application for a division of earnings because it had not been made within the four years stipulated in the CPP. The respondent acknowledges that his refusal to divide the earnings was based on an erroneous ground. The respondent did not have jurisdiction to dispose of the application for a division of earnings and should have abstained from ruling on the applicant's application, because the earnings could not be divided under the CPP.
2. Decision No. 2, April 23, 2004
[38] This decision by the respondent is now before us for judicial review.
[39] The respondent found no evidence of administrative error or erroneous advice. No right of appeal exists for a decision made pursuant to subsection 66(4) of the CPP. The decision may, however, be examined by the Federal Court under judicial review.
[40] With respect to the respondent's decision dated April 23, 2004, subsection 66(4) of the CPP gives the respondent discretion to take remedial action to place a person in the position that the person would be in, if the Minister is satisfied that, as a result of erroneous advice or administrative error, that person has been denied a division of earnings.
[41] Section 66(4) of the CPP reads as follows:
| 66. (4) Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied
(a) a benefit, or portion thereof, to which that person would have been entitled under this Act,
(b) a division of unadjusted pensionable earnings under section 55 or 55.1, or
(c) an assignment of a retirement pension under section 65.1,
the Minister shall take such remedial action as the Minister considers appropriate to place 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.
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66. (4) Dans le cas où le ministre est convaincu qu'un avis erroné ou une erreur administrative survenus dans le cadre de l'application de la présente loi a eu pour résultat que soit refusé à cette personne, selon le cas :
a) en tout ou en partie, une prestation à laquelle elle aurait eu droit en vertu de la présente loi,
b) le partage des gains non ajustés ouvrant droit à pension en application de l'article 55 ou 55.1,
c) la cession d'une pension de retraite conformément à l'article 65.1, le ministre prend les mesures correctives qu'il estime indiquées pour placer la personne en question dans la situation où cette dernière se retrouverait sous l'autorité de la présente loi s'il n'y avait pas eu avis erroné ou erreur administrative.
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[42] In my opinion, subsection 66(4) of the CPP does not apply for the following reason: the alleged administrative error or erroneous advice was made or given by the Régie, not the respondent.
[43] This point leads me to the issue of the Federal Court's jurisdiction.
[44] Subsection 55.2(7) of the CPP states that no division of earnings shall be made for any month during which either of the persons subject to the division contributed to a provincial pension plan, unless the contributions are divided under that plan in a manner substantially similar to that described in section 55.1 of the CPP.
[45] The QPP is a provincial pension plan within the meaning of subsection 55.2(7) of the CPP. Sections 102.10.3 et seq. of the AQPP provide for the division of earnings in a manner substantially similar to that described in section 55.1 of the CPP. Therefore, the earnings accumulated by the applicant and Mr. Corbeil during their period of cohabitation cannot be divided according to the CPP; they must be divided according to the AQPP.
[46] The AQPP governs eligibility conditions for the partition of earnings in the applicant's situation. The relevant sections of the AQPP follow:
| § 2. - Partition of earnings for the periods of de facto union
Entitlement.
102.10.3. Entitlement to the partition of the unadjusted pensionable earnings registered during a period of de facto union, rectified, if necessary, in the proportion indicated in section 180, applies, to the extent and in the manner provided for in this subdivision, in respect of the following persons:
(a) former de facto spouses of opposite sex or the same sex who have ceased to live in a de facto union for at least 12 months or such spouses one of whom died in the 12-month period after they ceased to live in a de facto union if, at the time they ceased to live in a de facto union, they had been living in a de facto union for at least three years or, in the cases mentioned in subparagraph b of the first paragraph of section 91, for at least one year and neither of them was married to or in a civil union with another person;
(b) former spouses or spouses legally separated from bed and board who lived in a de facto union before their marriage; the latter spouses are, with respect to the period of de facto union, considered to be former de facto spouses from the date of effect of the judgment of divorce, annulment of marriage or separation from bed and board; or
(c) former civil union spouses who lived in a de facto union before their civil union; the latter spouses are, with respect to the period of de facto union, considered to be de facto spouses from the date of effect of the dissolution, by way of a judgment or of a notarized joint declaration, or the annulment of their civil union.
1997, c. 73, s. 35; 1999, c. 14, s. 18; 2002, c. 6, s. 166.
Application.
102.10.4. The application for partition must be made within three years after the expiry of the 12-month period provided for in section 102.10.3 or, as the case may be, within three years after the date of effect of the divorce, annulment of marriage, separation from bed and board or dissolution or annulment of the civil union. Where one of the former de facto spouses dies within the aforementioned 12-month period, the three-year time limit runs from the date of the death.
Application.
The application must be made jointly or, where an agreement in writing relating to the partition of earnings has been reached between them, by only one of the de facto spouses.
1997, c. 73, s. 35; 2002, c. 6, s. 167.
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§ 2. - Partage des gains pour les périodes de vie maritale
Droit au partage des gains admissibles. 102.10.3. Le droit au partage des gains admissibles non ajustés qui ont été inscrits pendant une période de vie maritale, rectifiés le cas échéant dans la proportion indiquée à l'article 180, est ouvert, dans la mesure et de la manière prévues par la présente sous-section, aux personnes suivantes:
a) les ex-conjoints de fait, qu'ils soient de sexe différent ou de même sexe, qui, ayant vécu maritalement pendant au moins trois ans, ou pendant au moins un an dans les cas mentionnés au paragraphe b du premier alinéa de l'article 91, ont cessé depuis au moins 12 mois de vivre maritalement ou dont l'un est décédé au cours de la période de 12 mois suivant la cessation de la vie maritale, si aucun n'était lié par un mariage ou une union civile au moment de la cessation de la vie maritale;
b) les ex-époux ou les époux judiciairement séparés de corps qui, antérieurement à leur mariage, ont vécu maritalement ; ceux-ci sont, en ce qui concerne la période de vie maritale, assimilés à des ex-conjoints de fait à compter de la prise d'effet du jugement de divorce, de nullité de mariage ou de séparation de corps;
c) les ex-conjoints unis civilement qui, antérieurement à leur union civile, ont vécu maritalement; ceux-ci sont, en ce qui concerne la période de vie maritale, assimilés à des ex-conjoints de fait à compter de la prise d'effet de la dissolution, par jugement ou déclaration commune notariée, ou de la nullité de leur union.
1997, c. 73, a. 35; 1999, c. 14, a. 18; 2002, c. 6, a. 166.
Demande de partage.
102.10.4. La demande de partage doit être faite dans les trois ans de l'expiration de la période de 12 mois prévue à l'article 102.10.3 ou, le cas échéant, dans les trois ans de la prise d'effet du divorce, de la nullité du mariage, de la séparation de corps ou de la dissolution ou de la nullité de l'union civile. En cas de décès de l'un des ex-conjoints de fait durant la période de 12 mois susvisée, le délai de trois ans court à partir de la date du décès.
Demande conjointe.
La demande doit être faite conjointement ou, lorsque prévu dans une convention écrite sur le partage des gains intervenue entre les ex-conjoints de fait, par l'un d'entre eux seulement.
1997, c. 73, a. 35; 2002, c. 6, a. 167.
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[47] The applicant was never entitled to make an application for partition between former spouses because she was not married to Mr. Corbeil. They were just de facto spouses. It would be impossible to place the applicant in the position that she would be in had the Régie not erred because, first, she was not entitled to benefits. I cannot comprehend why the Régie's officials did not ask the applicant about her marital status.
[48] The respondent dismissed the August 15, 2002 application for a division of earnings on the ground that it had not been submitted within the four-year time limit. The respondent admits that his refusal to divide the earnings was based on erroneous grounds. The respondent should have ruled that he did not have jurisdiction to dispose of the application for the division of earnings, since the applicant and Mr. Corbeil had not contributed to the CPP. However, this did not cause prejudice to the applicant, since she was not married to Mr. Corbeil and therefore not entitled to receive a pension.
[49] In this Court, the respondent argued that the Federal Court cannot review a decision of the Régie. It was the Régie that may possibly have misled the applicant concerning the possibility of an administrative error or erroneous advice. The Federal Court cannot review the actions or decisions of the Régie; the Court simply has no jurisdiction, as it deals with matters and laws under federal jurisdiction only.
[50] I cannot resolve the applicant's problem through this application for judicial review. The consequences in terms of her rights, in particular, the right to the partition of earnings, arise directly from the AQPP. Under the AQPP, de facto spouses could not make an application for the partition of earnings prior to July 1, 1999, because the partition of earnings between former de facto sposes was not recognized by the AQPP prior to that date. I do not know why the Régie did not give the applicant that information in 1992 or 1998.
[51] The respondent made no administrative error and gave no erroneous advice resulting in the applicant's loss of her right to the partition of earnings and entitling her to a pension. The respondent's decision is not patently unreasonable; in fact, it is correct.
CONCLUSION
[52] The respondent's decision is not patently unreasonable, because the CPP did not make an administrative error or give the applicant erroneous advice.
[53] Under the AQPP, the applicant is not entitled to the partition of earnings, because she was not married to Mr. Corbeil. They were de facto spouses.
[54] The Court has no jurisdiction to intervene with respect to erroneous advice given by the Régie, as the Federal Court cannot review the actions of Régie officials.
ORDER
The application for judicial review by the applicant is dismissed.
JUDGE
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1073-04
STYLE OF CAUSE: NICOLE PAQUETTE
-and-
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Nanaimo, British Columbia
DATE OF HEARING: October 20, 2005
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE TEITELBAUM
APPEARANCES:
Nicole Paquette FOR THE APPLICANT
Adrian Bieniasiewicz FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims, Q.C. FOR THE DEFENDANT
Attorney General of Canada
Ottawa, Ontario