BETWEEN:
and
THE ATTORNEY GENERAL OF CANADA
REASONS FOR ORDER
Let the attached certified transcript of my Reasons for Order delivered orally from the Bench at Oshawa, Ontario on the 16th day of April, 2007, now edited as to grammar and syntax, be filed to comply with section 51 of the Federal Court Act.
Ottawa, Ontario
April 19, 2007
Oshawa, Ontario
--- Upon commencing this excerpt on Monday, April 16, 2007 at 10:48 a.m.
THE REGISTRAR: The Court is now resumed.
DECISION FROM THE BENCH:
JUSTICE MACTAVISH: Thank you. This is a most unfortunate case where what started as a simple request for information on the part of Ms Strezov resulted in a loss of pension credits for the period of Ms Strezov's marriage.
The facts of this case are not in dispute. Sylvia Strezov was married to Luben Strezov on October 4, 1981. The couple separated in January of 1990 and their divorce became final on March 21, 1992.
It is not disputed that on March 8 of 2004, Ms Strezov attended at the offices of Human Resources and Skills Development Canada in Scarborough to inquire about her entitlement to a share of her now-deceased ex-husband's pension.
Ms Strezov brought with her a completed application for credit splitting and a copy of her divorce decree. Ms Strezov spoke to an HRSDC officer by the name of Sheila.
Once again, there is no dispute that Ms Strezov told Sheila about her divorce from Luben and provided Sheila with social insurance numbers for both herself and Luben. Ms Strezov left a completed application for credit splitting with Sheila, along with a copy of her divorce judgment.
At the same time there is no dispute that Sheila told Ms Strezov that her application for credit splitting would only be proceeded with in the event that it was determined to be to Ms Strezov's advantage.
Ms Strezov was therefore understandably very upset when a few weeks later she was notified that the division of her and Luben's pension credits had been carried out, which had the effect of reducing her pensionable earnings for the period of her marriage and, with that, her potential future entitlement to Canada Pension Plan benefits.
Ms Strezov appealed this decision to the review tribunal, although it appears that this appeal has not been pursued. Instead, Ms Strezov sought to have this matter reviewed in accordance with subsection 66(4) of the Canada Pension Plan on the basis that she had been provided with erroneous advice or information by Sheila.
Subsection 66(4) of the plan provides that:
"Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the adminstration of this act, any person has been denied, (a) a benefit or portion thereof to which the pension 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 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."
An investigation into this matter was then carried out by HRSDC. By letter dated June 30, 2006, Ms. Strezov was advised that although HRSDC acknowledged having provided Ms Strezov with erroneous information on March 8, 2004, she was nonetheless not entitled to any relief as it was the department's position that credit splitting was mandatory as soon as the department was advised of the divorce.
Moreover, it was not possible for Ms Strezov to withdraw her application once it was determined that credit splitting did not operate to her advantage.
As a consequence, it was determined that Ms Strezov was not entitled to any relief under subsection 66(4) of the plan.
Ms Strezov now seeks judicial review of that decision.
As I understand Ms Strezov's position, she says that the Minister erred in refusing to reinstate her pension credits, as she would not have left her application for pension splitting with HRSDC in the first place but for the erroneous advice that she received from Sheila, that she could withdraw her application if it turned out that credit splitting did not operate to her advantage.
Ms Strezov says that she should not be penalized for the erroneous advice provided to her by the department.
I am very sympathetic to Ms Strezov and understand how frustrated she must be by what has gone on in this case. However, sympathy alone unfortunately does not provide a sufficient basis for me to set aside the decision of the Minister.
Subsection 66(4) of the plan allows the Minister to take remedial action in some, but not all, cases where an individual has been provided with erroneous advice by department officials.
That is, in order to be entitled to Ministerial relief, it is not enough that the person was provided with erroneous advice. In addition, the person must also have been denied a benefit to which they were entitled, have been denied a division of pension credits, or have been denied an assignment of a retirement pension.
In this case, while there is no dispute that Ms Strezov was provided with erroneous advice, she has not been denied a benefit to which she was otherwise entitled.
That is, the case law under section 55.1(1)(a) of the Canada Pension Plan is quite clear: These provisions are mandatory, and the division of pensionable earnings is to be the rule and not the exception.
The Minister has no discretion in exercising his authority under this provision - in this regard, I refer to cases such as the decision of the Federal Court of Appeal in the Minister of Health and Human Resources Development v. Wiemer, [1998] FCJ 809 - unless one can bring one's self within one of the enumerated exceptions, none of which apply here.
Moreover, the wording of section 55.1(1)(a) is itself clear that once the Minister is made aware of the fact that a contributor to the Plan has been divorced, then a division of pensionable credits between the contributor and his or her spouse is mandatory.
This was so in Ms Strezov's case, quite irrespective of whatever bad advice she may have been given by Sheila in March of 2004.
Thus, while Ms Strezov clearly went to the departmental office simply seeking information, once she told Sheila about her divorce from Luben and provided Sheila with her social insurance number and that of Luben, HRSDC had no choice but to carry out the division of pension credits, whether it worked to Ms Strezov's advantage or not.
This would also have been the case even if the erroneous advice had never been provided to Ms Strezov by Sheila.
While the Minister does have the power to grant relief under subsection 66(4) where someone has been given erroneous advice, the Minister can only do so where the effect of the erroneous advice is to deny the individual a benefit, including a division of pensionable earnings, to which the person would otherwise have been entitled.
In this case, Ms Strezov has not been denied a benefit to which she was otherwise entitled, nor has she been denied a division of pensionable earnings.
Accordingly, the Minister was correct to deny Ms Strezov's application for relief under subsection 66(4) of the Canada Pension Plan.
Thus, while I am indeed sympathetic to the situation that Ms Strezov finds herself in, in the absence of any error in the decision refusing relief under subsection 66(4) of the Canada Pension Plan, I have no alternative but to dismiss Ms Strezov's application for judicial review.
As I explained in the course of the hearing, in the normal course, a successful party is awarded their costs of an application.
In this case, the Minister is not seeking costs, and given what has gone on in this case, I am in complete agreement with the Minister. This is not an appropriate case to award the Minister his costs and I am denying the Minister his costs of this application.
Thank you, very much. We are adjourned.
MR. GRAY: Thank you, my lady.
MS STREZOV: Thank you, very much.
THE REGISTRAR: This special sitting of the Federal Court is now concluded.
--- Whereupon the excerpt concluded at 10:59 a.m. on Monday, April 16, 2007.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1344-06
STYLE OF CAUSE: SYLVIA STREZOV v.
ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Oshawa, Ontario
DATE OF HEARING: April 16, 2007
REASONS FOR ORDER: Mactavish, J.
APPEARANCES:
Sylvia Strezov FOR THE APPLICANT
James Gray FOR THE RESPONDENT
SOLICITORS OF RECORD:
SYLVIA STREZOV (Self represented litigant) FOR THE APPLICANT
Pickering, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Department of Justice, Legal Services
Human Resources and Social Development
Ottawa, Ontario