Ottawa, Ontario, this 20th day of July, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
ESTATE OF ETHEL VINCENT
Respondent
REASONS FOR ORDER AND ORDER
[1] The Attorney General of Canada ("the Minister") seeks judicial review of an interlocutory decision of the Office of the Commissioner of Review Tribunals, Canada Pension Plan/Old Age Security ("the Tribunal") made on or about April 3, 2003, denying the Minister's motion for dismissal of the appeal by the Estate of Ethel Vincent, in relation to a claim initiated by Ms. Vincent during her lifetime. Judicial review is sought on the basis that the respondent, the Estate, lacked standing before the Commissioner, since it is said not to be entitled to pursue any claim initiated by Ms. Vincent.
Facts
[2] Ethel Vincent and Reginald Vincent lived in a common-law relationship between August 1974 and January 1986. In July 1996, at the age of 47, Ms. Vincent applied for a "Division of Unadjusted Pensionable Earnings" (credit-splitting) under the Canada Pension Plan, R.S. 1985, c. C-8 ("the Act"). The provisions for credit-splitting under the Act were then applicable to common-law partners who separated in 1987 or thereafter. While Ms. Vincent did not meet that requirement for CPP credit-splitting, she applied anyway.
[3] By letter dated August 21, 1996, the Minister denied her application because the separation of Ms. Vincent and Mr. Vincent had occurred prior to January 1, 1987. Ms. Vincent requested reconsideration of that decision, pursuant to section 81 of the Act. The Minister responded on June 3, 1997, confirming his earlier decision denying her application.
[4] By letter dated August 25, 1997, Ms. Vincent informed the Office of the Commissioner of Canada Pension Plan Review Tribunals that she wished to appeal the Minister's decision to the Tribunal. On April 16, 1998, a Tribunal was convened, but the hearing was adjourned because Ms. Vincent indicated that she would rely upon the section 15 equality guarantee in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("the Charter"), to challenge the legislative barrier to her eligibility for CPP credit-splitting.
[5] In September 2001, counsel for Ms. Vincent filed an Amended Notice of Appeal outlining submissions regarding the challenge to the impugned provisions of the Act on the basis of claimed equality rights. Specifically, Ms. Vincent alleged that the credit-splitting regime was constitutionally deficient in at least two respects:
1. credit-splitting was and remains not available at all to former common-law partners who separated from their partners between April 17, 1985 and December 31, 1986; and,
2. it contains a four-year time limit for applications from former common-law partners while no such limitations apply to either divorced or separated spouses.
[6] After the amended Notice of Appeal was filed, on October 24, 2001 Ms. Vincent died of cancer. Following her death, a CPP death benefit was paid out to her surviving family members, and an orphan's benefit was paid to her custodial grandson, Jordan Vincent.
[7] Then, by letter dated September 17, 2002, in preparation for the forthcoming Review Tribunal hearing to adjudicate the Charter claim, counsel for the Estate of Ethel Vincent filed submissions in support of the equality rights claim.
[8] After some delay including a request for an extension of time by the Minister to file submissions in response to the Charter claim, the Minister filed a motion on February 11, 2003, arguing that, upon Ms. Vincent's death, her estate lacked standing to continue with the Charter claim. A hearing was held on March 17, 2003, concerning the Minister's interlocutory application seeking a dismissal of the appeal by the Estate of Ethel Vincent on the basis that the Estate had no standing under section 15 of the Charter.
[9] On or about April 3, 2003, the Tribunal denied the Minister's application. In its decision, the Tribunal noted that the issue before it was whether or not the Estate of Ethel Vincent lacked standing to proceed with the appeal, because the Estate was not an individual within the meaning of section 15 of the Charter. The Tribunal referred to cases cited by the Minister in support of the application, but noted that they were distinguishable from the present case in one important respect; that these cases all involve applications by an estate initiated after the death of an individual whose rights were alleged to have been infringed or denied but who had not initiated a claim in his or her lifetime. The Tribunal concluded:
In these circumstances, this is a matter where the individual made the application and pursued it up to the time of her death. It is the individual's application which is merely being carried or continued to its conclusion by the estate. The Review Tribunal therefore denies the Minister's Interlocutory Application. The Estate of Ethel Vincent has standing to continue the present appeal.
[10] That decision led to the Minister's application for judicial review, without proceeding to appeal to the Pension Appeals Board, as is provided for under section 83 of the Act.
Relevant Legislation
[11] Subsection 15 of the Canadian Charter of Rights and Freedoms, provides as follows:
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques.
Submissions of the Parties
[12] The Minister acknowledges that judicial review of an interlocutory decision of a tribunal has proceeded only if it is found warranted by "special circumstances": Canada v. Schnurer Estate, [1997] 2 F.C. 545 (C.A.), Szczecka v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 934 (C.A.) (QL). Special circumstances are said to include those when a tribunal's jurisdiction is in question or when rulings are characterized as jurisdictional in nature: Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (T.D.). The Minister submits that the Tribunal's decision does constitute a special circumstance as the issue of standing is jurisdictional in nature, concerning the authority of the tribunal to inquire into facts, apply the law, make decisions and to ultimately declare judgment.
[13] Further, the Minister submits that the facts in question in this application are straightforward and essentially agreed-upon, that the particulars of the issue of standing to be resolved are already clearly established, that the determination of the issue of standing could have an immediate and a definite implication for the relations of the parties. Finally, the Minister submits that the exercise of the Court's discretion to review the matter at this stage may determine the substantive rights of the parties and the entire matter originally raised before the Tribunal, and that would be in keeping with the interests of judicial economy.
[14] In support of the merits of the Minister's application it is urged that the Review Tribunal erred in law in not recognizing that an estate, being the totality of a deceased's assets, is not a physical person and is therefore not an "individual" under section 15. Further, numerous courts have ruled that the word "individual" in section 15 relates only to human beings: Levesque Estate v. Levesque Estate, [1989] 96 N.B.R. (2d) 348 (Q.B.); Stinson Estate v. British Columbia, 1999 BCCA 761; Wilson Estate v. Canada (Attorney General), [1996] B.C.J. No. 1264 (S.C) (QL). It is urged that the factual basis for the appeal is an alleged breach of the late Ethel Vincent's constitutional rights, and the courts have determined that these rights are personal and do not pass by succession. Accordingly, the Estate of Ethel Vincent has no standing to bring the appeal before the Tribunal.
[15] For the Estate it is urged that, the circumstances here are not special. Rather, there are three factors in this application, apart from the merits of the Minister's motion, that favour this Court denying judicial review:
i. laches/acquiescence on the part of the Minister after Ms. Vincent's death before moving to have the appeal to the Tribunal dimissed;
ii. the availability of adequate alternative remedies; and,
iii. the fact that the Tribunal's interlocutory decision may not have been dispositive of the standing issue.
[16] I agree with the Minister that the equitable doctrine of laches may operate as a shield, not a sword, and the Review Tribunal had no jurisdiction to apply the equitable doctrine of laches as a basis for refusing dismissal of the appeal.
[17] It is true that the Federal Court of Appeal has refused judicial review of an interlocutory decision where the applicant has available to it alternative remedies such as a statutory appeal process: Sczcecka, supra, at 6. In this case, the Minister had the opportunity to apply for leave to appeal from the impugned interlocutory decision of the Tribunal to the Pension Appeals Board, pursuant to section 83 of the Act, or, alternatively, await the Tribunal's ultimate decision on the merits and then pursue the appeal process at that point. The Pension Appeals Board may consider an appeal from the Tribunal on the issue of standing and on the merits of the appeal. That Board is structured to provide timely, cost-efficient and readily accessible appellate review of Review Tribunal decisions. In my opinion, the availability of this process for a remedy is a factor that clearly militates against judicial review at this stage.
[18] Finally, the Estate submits that the Tribunal was correct when it accepted that the respondent had standing to continue with the Charter claim initiated and pursued by Ms. Vincent prior to her death. The Charter breach was experienced and the litigation was initiated by Ms. Vincent. In these circumstances, it is urged the Estate is entitled, following her death, to carry the claim forward. It is not seeking to initiate a claim on behalf of the deceased, rather it seeks to carry forward a claim initiated by Ms. Vincent in her lifetime.
[19] None of the authorities cited by the Minister stand for the proposition that a Charter claim started and pursued by a claimant terminates upon the death of the claimant, and may not be carried forward by the claimant's estate. In Levesque, supra, where no claim was initiated against an estate during the lifetime of the claimant it could not be initiated by her estate after the claimant's death. In Stinson, supra, the British Columbia Court of Appeal ruled that a Charter claim commenced after the individual's death by the deceased's estate could not continue. In Wilson, supra, the Court dismissed a claim under section 7 brought against the police by the victim's estate for wrongful violation of the deceased's right to life. No claim had been initiated by the deceased in his lifetime.
[20] The Estate also urges that it is a further distinction from those cases that the relief sought in this case is pursuant to s. 52 of the Constitution Act, 1982, not s. 24. This is an equality rights claim, no claim is made that what occurred was in any way unique to Ms. Vincent's personal situation. Rather, the claim centres around an allegation that the credit-splitting regime under the Act discriminates against all former spouses, mostly women, in her situation. The remedy being sought is to have a ruling that the impugned provisions violate the Charter. If granted, that declaration would permit these people, almost exclusively women, to be eligible, when the time comes, for retirement or disability benefits made available to others.
[21] Further, it is urged that given that the equality guarantee is particularly oriented to improvement of the situation of historically disadvantaged groups, and that this is litigation which deals with a situation that is systemic in its general application to members of a disadvantaged group, the Tribunal's decision properly permitted the respondent to have standing.
[22] It is also noted that Rule 116 of the Federal Court Rules, 1998, allows for the continuation of legal proceedings after a party's death. That Rule, of course, relates to proceedings in this Court, not proceedings in other fora generally. Further, I note that while neither counsel made reference to the Survival of Actions Act, R.S.N.S. 1989, c. 453, that legislation does provide for actions initiated by a person in his lifetime, to be carried on after his or her death by an executor.
[23] It is urged that in the alternative, if this Court concludes that Ms. Vincent's Charter claim cannot be continued by her Estate as of right, the Estate submits that the Tribunal nonetheless had the discretion to grant the respondent standing as a matter of "residuary discretion", as was determined by the Supreme Court of Canada in Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 at 33. However, the Review Tribunal did not purport to rely on any residuary discretion as a basis for its decision. Thus, that is not a matter on which this Court should intervene.
Conclusion
[24] I agree that special circumstances here, i.e., the question of standing of the Estate to pursue relief sought by Mrs. Vincent in her lifetime, warrant the exercise of the Court's authority to consider by judicial review the Review Tribunal's decision.
[25] In my opinion, however, the Review Tribunal did not err in holding that the Estate of Ethel Vincent had standing to pursue the claim initiated by her in her lifetime, including her claim that she had been denied equality contrary to s. 15 of the Charter.
[26] Whether the Estate may succeed in its claim is to be determined. At this stage, the decision of the Review Tribunal, to acknowledge the Estate's capacity to carry the claim forward, cannot be said to be wrong in law.
[27] The respondent requested costs. Ordinarily those follow the outcome of an application and that seems appropriate in this case. Those costs I fix in the amount of $1,000.
ORDER
[28] IT IS ORDERED that:
1. The application for judicial review of a decision dated April 3, 2003,
denying the applicant Minister's motion to dismiss an appeal by the respondent Estate to a Review Tribunal under the Canada Pension Plan/Old Age Security Plan, is dismissed.
2. Costs to the respondent, fixed in the amount of $1,000.
"W. Andrew MacKay"
D.J.
Ottawa, Ontario
July 20, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-652-03
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
- and -
ESTATE OF ETHEL VINCENT
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: April 6, 2004
REASONS FOR ORDER AND ORDER OF MacKAY J.
APPEARANCES:
Florence Clancy
FOR APPLICANT
Vince Calderhead
FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR APPLICANT
Nova Scotia Legal Aid
Halifax, Nova Scotia
FOR RESPONDENT