Ottawa, Ontario, March 8th, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
(Motion Respondent)
and
(Moving Party)
REASONS FOR ORDER AND ORDER
(With respect to the adjournment of this motion to strike the proposed class action)
[1] The defendant brings this motion to strike the plaintiff’s amended statement of claim (the Claim) on the basis that plaintiff’s proposed class action, as commenced by the Claim, discloses no reasonable cause of action or is an abuse of process. The plaintiff seeks damages for breach of “statutory contract” and “statutory duty” arising out of the defendant’s failure to award interest on a retroactive disability pension benefits paid under the Canada Pension Plan, R.S.C. 1985, c. C-8 (the Plan).
[2] The plaintiff, Mr. King, became disabled and applied for a disability pension in 1996. It was repeatedly denied, but ultimately on an appeal before the Pension Appeals Board Mr. King was granted a monthly disability pension in 2003 and a retroactive lump sum payment in the amount of $109,869.49 which was the total of the monthly pension which he ought to have received from June 1995 to January 2003. Mr. King sought interest on the retroactive amount of this lump sum payment, which the defendant refused. This proposed class action is for interest on the retroactive lump sum payment for the plaintiff, and for others in the same position.
Background Facts
[3] The plaintiff suffered certain disabling injuries in February 1985, March 1989 and May 1992. The plaintiff applied for a disability pension under subsection 60(6) of the Plan on May 10, 1996. By letter dated September 12, 1996, Human Resources Development Canada (HRDC) denied the plaintiff’s application under subsection 60(7) of the Plan because his disability was not “severe and prolonged”.
[4] On September 26, 1996, the plaintiff requested a reconsideration of his application under paragraph 81(1)(b) of the Plan. HRDC denied the plaintiff’s application under subsection 81(2) of the Plan on October 30, 1996 because he did not fully meet the requirements of the Plan and he was still able to perform other work suitable to his condition.
[5] On December 20, 1996, the plaintiff appealed to the Review Tribunal under subsection 82(1) of the Plan. On July 24, 1998, the Review Tribunal denied the plaintiff’s claim for disability benefits on the basis that his disability was not severe and prolonged as required under paragraph 42(2)(a) of the Plan.
[6] On August 12, 1998, the plaintiff sought leave to appeal the Review Tribunal’s decision to the Pension Appeals Board (the Board). The plaintiff’s appeal was allowed in the Board’s decision dated December 13, 2002, which granted the plaintiff a disability pension under the Plan. The plaintiff subsequently received lump sum benefits totalling $109,869.49 for the period from June 1995 to January 2003. This sum represented the aggregate of each of the monthly payments the plaintiff would have received had the payments been made in the ordinary course. The plaintiff also received a monthly disability pension commencing in February 2003.
[7] On February 3, 2003, the plaintiff’s solicitor wrote to the Minister seeking interest on the retroactive amount of the plaintiff’s disability. By letter dated March 21, 2003, the Minister refused the payment of interest on the retroactive amount:
The decision of the Pension Appeals Board resulted in a grant of Mr. King’s Canada Pension Plan Disability benefits effective June 1995. Accordingly, a retroactive entitlement in the amount of $109 869.49 was owing to your client. Regarding the payment of interest on retroactive awards, there is no legislative authority surrounding this issue; however, it has been our department’s policy not to do so. Supporting argument for this policy would be since we do not charge interest on overdue debts to the Crown we would not pay interest on retroactive awards to the client.
[Emphasis added]
[8] Both parties agree that the plaintiff’s request for retroactive interest was not made under subsection 66(4) of the Plan or in reliance of the jurisprudence of the Federal Court of Appeal which provides that the remedial action which the Minister may consider appropriate under that subsection includes interest. Both parties also agreed at the hearing that Mr. King can still make a request to the Minister under the Plain for remedial action as the Minister considers appropriate to place Mr. King in the position that Mr. King would have been in under the Act had he have received his disability pension in a timely fashion. However, it must be demonstrated to the Minister that the original denial of the pension benefits was because of “erroneous advice” from the Minister’s department administering the Plan or an “administrative error” by the Minister’s department administering the Plan.
Plaintiff’s Position
[9] The plaintiff argues that the monthly pension benefits he received in 2003 for the benefits due in June 1995 do not represent adequate compensation as required under the Plan. The plaintiff argues that the Plan requires the Minister to compensate him by paying interest on the retroactive benefits and adjusting his award for inflation over the period between June 1995 and January 2003.
[10] The plaintiff alleges that the provisions of the Plan constitute a statutory contract among him, his employer, and the Minister of HRDC (the Minister). He alleges that the terms of this contract were breached when the Minister failed to make the timely payment to the plaintiff of the pension benefit due for June 1995 and each successive month up to January 2003.
[11] The plaintiff alleges in the alternative that the provisions of the Plan impose a statutory duty on the Minister, and that this duty was breached when the Minister failed to make timely payment of the plaintiff’s benefits.
The Ontario Claim
[12] The plaintiff commenced a similar action before Ontario Superior Court of Justice under the Class Proceedings Act, 1992, S.O. 1992, c. 6, in Daniel King v. The Attorney General of Canada, Court file number: 22198/A3 (the Ontario Claim). Under the Ontario Claim, the plaintiff pleaded that he was entitled to a disability pension under the Plan and purported to bring the action on behalf of everyone entitled to a pension or supplementary benefits under the Plan “the payment of which pension or supplementary benefits was initially denied and subsequently made by the Minister of Human Resources Canada [sic] on a retroactive basis without payment of interest”.
[13] By order dated March 30, 2004, Justice Rady of the Ontario Superior Court of Justice stayed the Ontario Claim. The plaintiff had brought a carriage motion in an attempt to stay the competing proposed class action in the matter of Gorecki v. Attorney General of Canada. In her order, Justice Rady stated:
… [T]he Gorecki action is to proceed; the King action is stayed and no other action concerning claims for interest on lump sum retroactive payments made pursuant to the CPP are to proceed without leave of the Court.”
[14] The plaintiff sought leave to appeal Justice Rady’s order to the Ontario Divisional Court. Leave to appeal was dismissed on May 17, 2004. The plaintiff issued the statement of claim in this action on April 6, 2005 and served a notice of discontinuance of the Ontario Claim on May 13, 2005.
[15] The claim in Gorecki was summarily dismissed in part by Justice Rady on August 17, 2005: Gorecki v. Canada (Attorney General), [2005] O.J. No. 3465. On September 22, 2005, I issued a direction holding this action in abeyance pending the determination of the appeal of Justice Rady’s order. On March 27, 2006, the Ontario Court of Appeal dismissed the Gorecki action in its entirety: Gorecki v. Canada (Attorney General), [2006] O.J. No. 1130; 265 D.L.R. (4th) 206.
Issue
[16] The issue raised in this motion is whether the Claim should be struck for failure to disclose a reasonable cause of action or for abuse of process.
Relevant Legislation
[17] The legislation relevant to this motion is as follows:
1. Canada Pension Plan, R.S.C. 1985, c. C-8; and
2. Federal Court Rules, SOR/98-106.
The relevant provisions of this legislation are set out in the Appendix to these Reasons.
Analysis
Issue: Should the Claim be struck because it is plain and obvious that the proposed class action commenced by the Claim must fail?
[18] In Prentice v. Canada, [2006] 3 F.C.R. 135, the Federal Court of Appeal discussed at page 150 the Court’s discretion to order that a pleading be struck out under paragraph 221(1)(a) of the Federal Courts Rules on the ground that it discloses no reasonable cause of action:
¶23 A motion to strike a pleading under paragraph 221(1)(a) of the Federal Courts Rules […] on the ground that it discloses no reasonable cause of action will be allowed only if, assuming the facts alleged in the statement of claim to be true, the judge concludes that the outcome of the case is "plain and obvious" or "beyond reasonable doubt" (see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, Wilson J. at page 980). It is clear from what Madam Justice Wilson said that the power to strike out pleadings must be exercised with considerable caution and reluctance and that neither the length or complexity of the issues nor the novelty of the cause of action should prevent a plaintiff from proceeding with his or her action.
¶24 That does not mean, however, that a party who advances an unprecedented cause of action will have an easy time of it at the motion to strike stage. The courts are certainly prepared to give such a party his or her day in court, but the cause of action, novel as it may be, must still have some chance of being recognized at the end of the road. A cause of action is not "reasonable" simply because it has not yet been explored. The courts must not naively assume that something novel is or may be part of the normal course of evolution in the law. For instance, in order to determine whether a case arises out of an employer-employee relationships, the facts giving rise to the dispute must be considered, and not the "characterization of the wrong" alleged; otherwise, "innovative pleaders" could "evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action" (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paragraph 49; Vaughan v. Canada, [2005] 1 S.C.R. 146, at paragraph 11 and Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, at paragraph 93). In Vaughan, according to Mr. Justice Binnie, the appellant had undoubtedly felt obliged "to frame his action, with a degree of artificiality, in the tort of negligence" (paragraph 11) to circumnavigate the Crown Liability and Proceedings Act, which did not stop the Court from striking the action brought on a preliminary motion.
[Emphasis added]
[19] The defendant argues that it is plain and obvious that the plaintiff’s Claim, which alleges a breach of statutory contract, breach of “statutory duty” and breach of “statutory right”, does not disclose a reasonable cause of action.
Breach of statutory contract
[20] The defendant argues that statutes do not create contractual relations between the Crown and its citizens. The public law relationship between Parliament and citizens is governed by public law rules, rather than the private law rules of contract. Even if a breach of statutory contract were actionable, the Plan does not include the provision which the plaintiff alleges to have been breached: the Plan does not provide for the payment of interest on retroactive benefits.
Breach of statutory duty and statutory right
[21] The defendant argues that there is no tort of breach of statutory duty or right. The Supreme Court of Canada held in Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 that breach of a statutory provision may be evidence of the standard of care in a suit against a public officer in negligence, and that the civil consequences of breach of statute should be subsumed in the law of negligence. Negligence was not pleaded in this Claim.
Alternative remedies
[22] As noted above, the Minister refused to pay interest on the retroactive amount in a letter dated March 21, 2003. The Minister has taken the position that there is no legislative authority for the payment of interest on retroactive awards under the Plan. The defendant seeks to strike the Claim on the basis that the plaintiff has failed to pursue the appellate procedure set out by Parliament in sections 81 to 83 of the Plan. Nor has the plaintiff pursued judicial review remedies in respect of the Minister’s decision not to award interest.
[23] In support of his argument that there is legislative authority for the payment of interest on retroactive payments, the plaintiff relies on subsection 66(4) of the Plan, which provides as follows:
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Where person denied benefit due to departmental error, etc. 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. |
Refus d’une prestation en raison d’une erreur administrative 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. |
Gorecki Decision of the Ontario Court of Appeal
[24] In Gorecki, above, the Ontario Court of Appeal dismissed a proposed class action for not disclosing a reasonable cause of action with respect to a claim for interest on a lump sum retroactive payment for a Canada Pension Plan disability pension. In the course of that decision, Mr. Justice Sharpe gave a succinct and excellent explanation of the Plan at paragraph 5:
¶ 5. It is common ground that the CPP is a comprehensive statutory scheme designed to provide contributors and their families with certain minimum levels of income in the event of retirement, death, or disability. The benefits payable, the contributions required, and the terms of entitlement are specified in the Canada Pension Plan, R.S. 1985, c. C-8 (the "Act"). The CPP is funded entirely by the contributions made by employees and employers and all funds are pooled with no individual accounts. CPP funds can only be used to pay benefits and administer the plan; transfers to or from other government accounts are prohibited. If a claim for a CPP benefit is denied, the Act provides a scheme of appeals to: (1) the Minister; (2) the Review Tribunal; (3) the Pension Appeals Board; and, (4) judicial review before the Federal Court of Appeal. The Act makes no provision for the payment of interest on benefits, although it does provide for interest in the case of under- or over-payment of contributions (see ss. 21(6), 34(2), 38(7), 108(2)(f)). Section 60(1) provides that no benefit can be paid unless the benefit has been approved under the Act.
[25] However, the parties in Gorecki obviously did not refer the Court of Appeal to subsection 66(4) of the Plan because Mr. Justice Sharpe held at paragraph 7:
¶7. … The CPP is a complete statutory code that makes no provision for the payment of interest on benefits where there is a delay between the date on which the beneficiary became entitled to the benefit and the date on which the benefit was paid. It has been held that where a comprehensive statutory scheme does not provide for the payment of interest by the Crown, no interest is payable…
In fact, subsection 66(4) of the Plan gives the Minister broad powers to take remedial action to place a person in a position that the person would have been in had that person not been denied a pension benefit as a result of “erroneous advice” or an “administrative error”. That remedial action can include interest, as held by the Federal Court of Appeal in the decision referred to below.
Scheuneman Decision of the Federal Court of Appeal
[26] In Scheuneman v. Canada (Human Resources Development), 2005 FCA 254, the Federal Court of Appeal considered the availability under subsection 66(4) of interest arising out of retroactive benefits paid under the Plan.
[27] I brought Scheuneman to the attention of counsel for both parties. Neither counsel was aware of this case, which the Court considers directly pertinent.
[28] In Scheuneman, the appellant’s disability benefits were terminated because of an administrative error, and his benefits were reinstated as a remedy under subsection 66(4) of the Plan. The appellant nevertheless pursued an action in damages because he did not consider the reinstatement of benefits to be an adequate remedy. The appellant alleged that the Minister acted negligently and violated his rights under section 7 of the Charter.
[29] Justice O’Reilly, the trial judge, dismissed the action in Scheuneman v. Canada (Human Resources Development), 2004 FC 1084.
[30] The Federal Court of Appeal agreed with Justice O’Reilly’s analysis of the negligence claim and discussed the availability of alternative remedies under subsection 66(4):
¶46 The Judge found an adequate alternative remedy in the authority of the Minister under subsection 66(4) of the Canada Pension Plan to "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 ... administrative error not been made." He pointed out that any decision of the Minister under that provision would be subject to judicial review in the Federal Court. When Mr. Scheuneman's benefits were reinstated with retroactive effect, he benefited from subsection 66(4) of the Canada Pension Plan, thus achieving the principal goal he sought in his action.
¶47 I agree with the Judge that, as a matter of public policy, the existence of subsection 66(4) of the Canada Pension Plan should be taken to preclude a tort claim based on an administrative error that results in an incorrect termination of disability benefits. For that reason, I must conclude that the Judge was correct to dismiss the claim for damages for negligence.
¶48 The record establishes beyond doubt that Mr. Scheuneman's disability benefits were terminated because of an administrative error, and that his benefits were reinstated as a remedy under subsection 66(4) of the Canada Pension Plan. Mr. Scheuneman nevertheless continued his action for damages because he considered the reinstatement of benefits not to be an adequate remedy. Unfortunately for Mr. Scheuneman, this Court does not have the jurisdiction, in the context of this appeal, to compel the Minister to reconsider that remedy. However, it remains open to Mr. Scheuneman to ask the Minister to reconsider the remedy on the basis that the reinstatement of benefits did not place him in the position he would have been in if the administrative error had not been made.
¶49 In that regard, it appears that the Minister has taken the position that the most that can be done for a claimant under subsection 66(4) of the Canada Pension Plan, in the case of wrongfully terminated benefits, is to reinstate the benefits with retroactive effect. However, that does not take into account the decision of this Court in Whitton v. Canada (Attorney General) (C.A.), [2002] 4 F.C. 126, which suggests that remedial provisions like subsection 66(4) contemplate a broader range of remedies.
¶50 Whitton dealt with a remedial provision in section 32 of the Old Age Security Act, R.S.C. 1985, c. O-9, that uses substantially the same language as subsection 66(4) of the Canada Pension Plan, in that it requires the Minister to take "such remedial action as the Minister considers appropriate to place the person that the person would be in under this Act had ... the administrative error not been made." Benefits to which Mr. Whitton was legally entitled had been wrongfully withheld. Mr. Whitton filed an application for judicial review, seeking a writ of mandamus. The application failed at first instance, but succeeded on appeal. Décary J.A., writing for the Court, made the following comment about section 32 of the Old Age Security Act (at paragraph 37) […]:
[37] To conclude on this point, I will refer to section 32 of the Act, which was reproduced earlier. At this point, the Minister must be satisfied that, as a result of erroneous advice, the appellant has been denied benefits to which he would have been entitled. The Minister must take the necessary action to place the appellant into the position he would be in, had an administrative error not been made. The action that must be taken is to reinstate the pension forthwith and repay the benefits that were suspended, with interest.
[Emphasis added]
[31] There is no automatic right to interest on disability pension payments which have been delayed and for which the disabled person is entitled to a retroactive pension payment. Moreover, the Pension Appeals Board in granting the plaintiff a disability pension under the Plan has no authority to award interest. However, following the Federal Court of Appeal’s statement in Scheuneman, above, and its reference to similar provisions considered in Whitton, it may be possible for the plaintiff to obtain a favourable decision from the Minister under subsection 66(4) of the Plan. As the Court of Appeal indicated in Scheuneman, it is necessary for the disabled person to seek interest from the Minister, and the Minister has the legislative authority under subsection 66(4) of the Plan to “take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under the Act” had there not been an administrative error made or erroneous advice received.
[32] Based on the jurisprudence, I advised the parties that this Court has no jurisdiction by way of an action to consider this matter. The proper course of proceeding, as discussed by the Federal Court of Appeal in Scheuneman, above, is:
1. the plaintiff asks that the Minister consider remedial action under subsection 66(4) of the Plan not to award interest on the retroactive pension payment; and
2. if the Minister denies the request for interest, the plaintiff can commence an application for judicial review of that decision in this Court under section 18.1 of the Federal Courts Act.
Request for adjournment of this motion to strike
[33] After the Court indicated its views during the course of the hearing, the plaintiff requested that the Court adjourn this motion to strike so that the plaintiff can make a proper request to the Minister for interest under subsection 66(4) of the Plan, and if the Minister denies such a request, the plaintiff can commence an application for judicial review in this Court. The reason for the adjournment of the motion to strike is because the plaintiff wishes to preserve his work in progress and preparation in having commenced the first proposed class action in the Federal Court on this subject. This is a relevant factor in determining which plaintiff and which team of solicitors should be given carriage of a proposed class action when there are competing proposed class actions over the same subject. For this reason, counsel for the moving party, the defendant, consented to the adjournment of the motion to strike on this basis recognizing that the Court would issue Reasons for Order which would explain the basis for the adjournment, the proper procedure for the plaintiff under subsection 66(4) of the Plan, and the Court’s position with respect to the motion to strike this action. The plaintiff proposes to commence an application for judicial review if necessary and to then convert the application for judicial review into a proposed class action. The jurisprudence of this Court is that a proposed class action is a relevant factor for the Court to consider in a motion to convert an application for judicial review into an action. This ensures that the class action rules are not frustrated because a party must commence an application for judicial review, and the class action rules do not apply to applications for judicial review.
Conclusion
[34] For these reasons, the defendant’s motion is adjourned sine die.
ORDER
THIS COURT ORDERS that:
On consent, this motion to strike the plaintiff’s amended statement of claim is adjourned sine die.
Appendix
1. Canada Pension Plan, R.S.C. 1985, c. C-8
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DIVISION C PAYMENT OF BENEFITS: GENERAL PROVISIONS 60. (1) No benefit is payable to any person under this Act unless an application therefor has been made by him or on his behalf and payment of the benefit has been approved under this Act. […] Where person denied benefit due to departmental error, etc. 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. […] DIVISION F RECONSIDERATIONS AND APPEALS 81. (1) Where […] (b) an applicant is dissatisfied with any decision made under section 60, […] the dissatisfied party or, subject to the regulations, any person on behalf thereof may, within ninety days after the day on which the dissatisfied party was notified in the prescribed manner of the decision or determination, or within such longer period as the Minister may either before or after the expiration of those ninety days allow, make a request to the Minister in the prescribed form and manner for a reconsideration of that decision or determination. Reconsideration by Minister and decision (2) The Minister shall forthwith reconsider any decision or determination referred to in subsection (1) and may confirm or vary it, and may approve payment of a benefit, determine the amount of a benefit or determine that no benefit is payable, and shall thereupon in writing notify the party who made the request under subsection (1) of the Minister’s decision and of the reasons therefor. 82. (1) A party who is dissatisfied with a decision of the Minister made under section 81 or subsection 84(2), or a person who is dissatisfied with a decision of the Minister made under subsection 27.1(2) of the Old Age Security Act, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal in writing within 90 days, or any longer period that the Commissioner of Review Tribunals may, either before or after the expiration of those 90 days, allow, after the day on which the party was notified in the prescribed manner of the decision or the person was notified in writing of the Minister’s decision and of the reasons for it. (11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action in relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal’s decision and of the reasons for its decision. Appeal to Pension Appeals Board 83. (1) A party or, subject to the regulations, any person on behalf thereof, or the Minister, if dissatisfied with a decision of a Review Tribunal made under section 82, other than a decision made in respect of an appeal referred to in subsection 28(1) of the Old Age Security Act, or under subsection 84(2), may, within ninety days after the day on which that decision was communicated to the party or Minister, or within such longer period as the Chairman or Vice-Chairman of the Pension Appeals Board may either before or after the expiration of those ninety days allow, apply in writing to the Chairman or Vice-Chairman for leave to appeal that decision to the Pension Appeals Board. Powers of Pension Appeals Board (11) The Pension Appeals Board may confirm or vary a decision of a Review Tribunal under section 82 or subsection 84(2) and may take any action in relation thereto that might have been taken by the Review Tribunal under section 82 or subsection 84(2), and shall thereupon notify in writing the parties to the appeal of its decision and of its reasons therefor.
Authority to determine questions of law and fact 84. (1) A Review Tribunal and the Pension Appeals Board have authority to determine any question of law or fact as to (a) whether any benefit is payable to a person, (b) the amount of any such benefit, (c) whether any person is eligible for a division of unadjusted pensionable earnings, (d) the amount of that division, (e) whether any person is eligible for an assignment of a contributor’s retirement pension, or (f) the amount of that assignment, and the decision of a Review Tribunal, except as provided in this Act, or the decision of the Pension Appeals Board, except for judicial review under the Federal Courts Act, as the case may be, is final and binding for all purposes of this Act. |
SECTION C PAIEMENT DES PRESTATIONS : DISPOSITIONS GÉNÉRALES Demande de prestation 60. (1) Aucune prestation n’est payable à une personne sous le régime de la présente loi, sauf si demande en a été faite par elle ou en son nom et que le paiement en ait été approuvé selon la présente loi. […] Refus d’une prestation en raison d’une erreur administrative 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. […] SECTION F RÉVISIONS ET APPELS Appel au ministre 81. (1) Dans les cas où : […] b) un requérant n’est pas satisfait d’une décision rendue en application de l’article 60, […] ceux-ci peuvent, ou, sous réserve des règlements, quiconque de leur part, peut, dans les quatre-vingt-dix jours suivant le jour où ils sont, de la manière prescrite, avisés de la décision ou de l’arrêt, ou dans tel délai plus long qu’autorise le ministre avant ou après l’expiration de ces quatre-vingt-dix jours, demander par écrit à celui-ci, selon les modalités prescrites, de réviser la décision ou l’arrêt. Décision et reconsidération par le ministre (2) Le ministre reconsidère sur-le-champ toute décision ou tout arrêt visé au paragraphe (1) et il peut confirmer ou modifier cette décision ou arrêt; il peut approuver le paiement d’une prestation et en fixer le montant, de même qu’il peut arrêter qu’aucune prestation n’est payable et il doit dès lors aviser par écrit de sa décision motivée la personne qui a présenté la demande en vertu du paragraphe (1). Appel au tribunal de révision 82. (1) La personne qui se croit lésée par une décision du ministre rendue en application de l’article 81 ou du paragraphe 84(2) ou celle qui se croit lésée par une décision du ministre rendue en application du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse ou, sous réserve des règlements, quiconque de sa part, peut interjeter appel par écrit auprès d’un tribunal de révision de la décision du ministre soit dans les quatre-vingt-dix jours suivant le jour où la première personne est, de la manière prescrite, avisée de cette décision, ou, selon le cas, suivant le jour où le ministre notifie à la deuxième personne sa décision et ses motifs, soit dans le délai plus long autorisé par le commissaire des tribunaux de révision avant ou après l’expiration des quatre-vingt-dix jours. Pouvoirs du tribunal de révision (11) Un tribunal de révision peut confirmer ou modifier une décision du ministre prise en vertu de l’article 81 ou du paragraphe 84(2) ou en vertu du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en application de ces dispositions; le commissaire des tribunaux de révision doit aussitôt donner un avis écrit de la décision du tribunal et des motifs la justifiant au ministre ainsi qu’aux parties à l’appel.
[…] Appel à la Commission d’appel des pensions 83. (1) La personne qui se croit lésée par une décision du tribunal de révision rendue en application de l’article 82 — autre qu’une décision portant sur l’appel prévu au paragraphe 28(1) de la Loi sur la sécurité de la vieillesse — ou du paragraphe 84(2), ou, sous réserve des règlements, quiconque de sa part, de même que le ministre, peuvent présenter, soit dans les quatre-vingt-dix jours suivant le jour où la décision du tribunal de révision est transmise à la personne ou au ministre, soit dans tel délai plus long qu’autorise le président ou le vice-président de la Commission d’appel des pensions avant ou après l’expiration de ces quatre-vingt-dix jours, une demande écrite au président ou au vice-président de la Commission d’appel des pensions, afin d’obtenir la permission d’interjeter un appel de la décision du tribunal de révision auprès de la Commission. […] Pouvoirs de la Commission d’appel des pensions (11) La Commission d’appel des pensions peut confirmer ou modifier une décision d’un tribunal de révision prise en vertu de l’article 82 ou du paragraphe 84(2) et elle peut, à cet égard, prendre toute mesure que le tribunal de révision aurait pu prendre en application de ces dispositions et en outre, elle doit aussitôt donner un avis écrit de sa décision et des motifs la justifiant à toutes les parties à cet appel.
Décision sur les questions de droit et de fait 84. (1) Un tribunal de révision et la Commission d’appel des pensions ont autorité pour décider des questions de droit ou de fait concernant : a) la question de savoir si une prestation est payable à une personne; b) le montant de cette prestation; c) la question de savoir si une personne est admissible à un partage des gains non ajustés ouvrant droit à pension; d) le montant de ce partage; e) la question de savoir si une personne est admissible à bénéficier de la cession de la pension de retraite d’un cotisant; f) le montant de cette cession. La décision du tribunal de révision, sauf disposition contraire de la présente loi, ou celle de la Commission d’appel des pensions, sauf contrôle judiciaire dont elle peut faire l’objet aux termes de la Loi sur les Cours fédérales, est définitive et obligatoire pour l’application de la présente loi. |
2. Federal Court Rules, SOR/98-106
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STRIKING OUT PLEADINGS 221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, (b) is immaterial or redundant, (c) is scandalous, frivolous or vexatious, (d) may prejudice or delay the fair trial of the action, (e) constitutes a departure from a previous pleading, or (f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly. Evidence (2) No evidence shall be heard on a motion for an order under paragraph (1)(a).
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Radiation d’actes de procédure Requête en radiation 221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d’un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu’il ne révèle aucune cause d’action ou de défense valable; b) qu’il n’est pas pertinent ou qu’il est redondant; c) qu’il est scandaleux, frivole ou vexatoire; d) qu’il risque de nuire à l’instruction équitable de l’action ou de la retarder; e) qu’il diverge d’un acte de procédure antérieur; f) qu’il constitue autrement un abus de procédure. Elle peut aussi ordonner que l’action soit rejetée ou qu’un jugement soit enregistré en conséquence.
Preuve (2) Aucune preuve n’est admissible dans le cadre d’une requête invoquant le motif visé à l’alinéa (1)a).
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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-603-05
STYLE OF CAUSE: DANIEL KING
PLAINTIFF
and
HER MAJESTY THE QUEEN
DEFENDANT
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: MARCH 1, 2007
APPEARANCES:
Frank Provenzano
Mr. Peter Sengbush FOR PLAINTIFF
Mr. Matthew Sullivan FOR DEFENDANT
SOLICITORS OF RECORD:
Provenzano Law Firm
Sault St. Marie, Ontario FOR PLAINTIFF
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR DEFENDANT