Date: 19980609
Docket: A-193-97
OTTAWA, ONTARIO, TUESDAY, JUNE 9, 1998
PRESENT: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT (formerly
THE MINISTER OF EMPLOYMENT AND IMMIGRATION),
Applicant,
(Respondent)
AND:
GERHARD WIEMER,
Respondent.
(Appellant)
- and -
DORTHEA H. KUKAT
(Intervener).
JUDGMENT
This application for judicial review is granted, the decision of the Pension Appeals Board dated June 24, 1994 is quashed and the decision of the Review Tribunal is confirmed.
"Julius A. Isaac"
C.J.
Date: 19980609
Docket: A-227-97
OTTAWA, ONTARIO, TUESDAY, JUNE 9, 1998
PRESENT: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
DOROTHEA HILDEGARD KUKAT,
Applicant,
(Respondent)
- and -
GERHARD WIEMER,
Respondent,
(Appellant)
AND:
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT (formerly
THE MINISTER OF EMPLOYMENT AND IMMIGRATION),
Respondent.
JUDGMENT
For the reasons given in Court file no. A-193-97, this application for judicial review is granted, the decision of the Pension Appeals Board dated June 24, 1994 is quashed and the decision of the Review Tribunal is confirmed.
"Julius A. Isaac"
C.J.
Date: 19980609
Docket: A-193-97
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT (formerly
THE MINISTER OF EMPLOYMENT AND IMMIGRATION),
Applicant,
(Respondent)
AND:
GERHARD WIEMER,
Respondent.
(Appellant)
- and -
DORTHEA H. KUKAT
(Intervener).
Heard at Winnipeg, Manitoba, Friday, May 15, 1998
Judgment delivered at Ottawa, Ontario, Tuesday, June 9, 1998
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: THE CHIEF JUSTICE
McDONALD J.A.
Date: 19980609
Docket: A-193-97
CORAM: THE CHIEF JUSTICE
LÉTOURNEAU J.A.
McDONALD J.A.
BETWEEN:
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT (formerly
THE MINISTER OF EMPLOYMENT AND IMMIGRATION),
Applicant,
(Respondent)
AND:
GERHARD WIEMER,
Respondent.
(Appellant)
- and -
DORTHEA H. KUKAT
(Intervener).
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] This is an application by the Minister of Human Resources Development (Minister)[1] for a judicial review of the decision of the Pension Appeals Board (Board) dated June 24, 1994, which, in effect, quashed the Minister's decision to allow Mrs. Kukat's demand for a division of the Respondent's unadjusted pensionable earnings pursuant to subsection 55.1(1) of the Canada Pension Plan (Act).
[2] The issue in this demand for judicial review consists in determining whether the Board erred in law when it concluded that the Minister should have given due consideration to the spousal agreement signed by the Respondent and Mrs. Kukat as well as to the intention of the parties expressed in the agreement even though such agreement was not binding on the Minister as it failed to satisfy the stringent conditions of subsection 55.2(3) of the Act.
[3] The relevant provisions of the Act read as follows:
Division of Unadjusted Pensionable Earnings
When mandatory division to take place
55.1 (1) Subject to this section and sections 55.2 and 55.3, a division of unadjusted pensionable earnings shall take place in the following circumstances: [...]
(a) following the issuance of a decree absolute of divorce, a judgment granting a divorce under the Divorce Act or a judgment of nullity of a marriage, on the Minister's being informed of the decree or judgment, as the case may be, and receiving the prescribed information;
(b) following the approval by the Minister of an application made by or on behalf of either spouse or his estate, if
(i) the spouses have been living separate and apart for a period of one year or more, and
(ii) in the event of the death of one of the spouses after they have been living separate and apart for a period of one year or more, the application is made within three years after the death; and
(c) following the approval by the Minister of an application made by or on behalf of either former spouse, within the meaning of subparagraph (a)(ii) of the definition "spouse" in subsection 2(1), or his estate, if
(i) the former spouses have been living separate and apart for a period of one year or more, or
(ii) one of the former spouses has died during that period,
and the application is made within four years after the day on which the former spouses commenced to live separate and apart.
[...]
Minister's discretion
(5) Before a division of unadjusted pensionable earnings is made under this section, or within the prescribed period after such a division is made, the Minister may refuse to make the division or may cancel the division, as the case may be, if he is satisfied that
(a) benefits are payable to or in respect of both spouses or former spouses; and
(b) the amount of both benefits decreased at the time the division was made or would decrease at the time the division was proposed to be made.
Application of section
(6) This section applies
(a) in respect of decrees absolute of divorce, judgments granting a divorce under the Divorce Act and judgments of nullity of a marriage, issued after the coming into force of this section; and
(b) in respect of spouses and former spouses who commence to live separate and apart after the coming into force of this section.
R.S., 1985, c. 30 (2nd Supp.), s. 23; 1991, c. 44, s. 7.
Definition of "spousal agreement"
55.2 (1) In this section, "spousal agreement" means
(a) a pre-marriage agreement between spouses-to-be, which agreement is to take effect on marriage; or
(b) an agreement between spouses or former spouses, including a separation agreement, entered into
(i) before the day of any application made under section 55 or 55.1, or
(ii) for the purpose of a division under paragraph 55.1(1)(a), before the issuance of the decree absolute of divorce, judgment granting a divorce under the Divorce Act or judgment of nullity of the marriage, as the case may be.
Spousal agreement or court order not binding on Minister
(2) Except as provided in subsection (3), where a spousal agreement was entered into or a court order was made on or after June 4, 1986, the provisions of that spousal agreement or court order are not binding on the Minister for the purposes of a division of unadjusted pensionable earnings under section 55 or 55.1.
Spousal agreement binding on Minister
(3) Where
(a) a spousal agreement entered into on or after June 4, 1986 contains a provision that expressly mentions this Act and indicates the intention of the spouses or former spouses that there be no division of unadjusted pensionable earnings under section 55 or 55.1,
(b) that provision of the spousal agreement is expressly permitted under the provincial law that governs the spousal agreement, and
(c) that provision of the spousal agreement has not been invalidated by a court order, the Minister shall not make a division under section 55 or 55.1.
Facts and Procedure
[4] A summary of the facts is in order for a proper understanding of the Parties' contentions.
[5] The Respondent and Mrs. Dorothea Kukat[2] lived together in a conjugal relationship from July of 1973 until they separated in November of 1990. Upon separation, they entered into a written settlement as to a division of their assets which made no mention of the parties' intention to waive any of their rights to unadjusted pensionable earnings under the Act.
[6] It is not disputed that the Respondent and Mrs. Kukat are spouses within the meaning of subsection 2(1) of the Act and that the conditions of paragraph 55(1)(c) are met for Mrs. Kukat to make an application to seek a division of the Respondent's unadjusted pensionable earnings.
[7] It is also common ground that, unlike at least Quebec and Saskatchewan, the Manitoba Legislature has not authorized by statute the waiver of spousal rights to a division of these earnings under the Act as required by paragraph (b) of subsection 55.2(3).
[8] On May 21, 1992, Mrs. Kukat applied for, and was granted by the Minister, a division of the Respondent's unadjusted pensionable earnings. The Respondent appealed to the Office of the Commissioner of the Canada Pension Plan Review Tribunals. On June 17, 1993, a Review Tribunal confirmed the Minister's decision. The Review Tribunal's decision was further appealed to the Pension Appeals Board and reversed by the Board. It is the Board's decision as I mentioned earlier which is now under review before us.
[9] Mrs. Kukat who was given intervenor status in the proceedings below is also seeking judicial review of the Board's decision in file no. A-227-97. The two applications for judicial review were heard together.
The Board's Decision
[10] The Board found in favour of the Respondent on two grounds. First, it came to the conclusion that there was no evidence that the person who approved Mrs. Kukat's application was the Minister or his delegate. Second, it was the Board's view that the Minister ought to have taken into consideration the agreement between the Respondent and Mrs. Kukat. The following excerpt of the Board's reasoning, found at pp. 7 and 8 of its decision, illustrates its understanding of the functioning of the Act:
There is no doubt that where the conditions set out in subsection 55.2(3) of the Act are satisfied, the spousal agreement is binding on the Minister. However, where the agreement is not binding on the Minister, it does not imply that its provisions should be disregarded. On the contrary, it is when a case falls between the mandatory division [subsection 55.1(1)] and the binding separation agreement [subsection 55.2] that the Minister or his delegate must exercise his discretion and decide whether or not to approve the application.
The decision should be based on the particular circumstances of the case including the intentions of the parties in establishing their conjugal relationship, their intentions in terminating it, the nature of any agreement entered into and the degree of finality to the relationship which the parties intended. I am sure there will be other considerations, but in the end, the decision would be based on the merits of each case.
In the present instance, it seems to me that the Minister was of the view that since he was not bound by the spousal agreement, he had no choice but to allow the division, as if it was mandatory.
Analysis of the Decision
[11] I shall dispose quickly of the first finding of the Board. There is no requirement under the Act that approval of an application for a division of unadjusted pensionable earnings be given by the Minister personally. Under subsection 24(2) of the Interpretation Act, R.C.S. 1985, c. I-21[3], powers given to a minister to do an act or a thing can be exercised by a person appointed to serve in the department over which the minister presides in a capacity appropriate to the doing of the act. Indeed, section 24 merely recognizes in legislation an existing practice dictated by the diversity and complexities of modern public administrations. Prior to the enactment of this provision, our Courts had recognized the existence of a principle of implied delegation of ministerial powers in order to ensure a proper and efficient functioning of public administrations[4]. Recently, the Supreme Court of Canada reasserted the principle when Major J., writing for the Court, concluded that the express delegation or devolution of powers to department officials found in s. 7 of the Fisheries Act may appear unnecessary today. "When power is entrusted to a Minister of the Crown, Major J. wrote, the acts will generally be performed not by the Minister but by delegation to responsible officials in his department"[5].
[12] The approval of Mrs. Kukat's application for division of earnings was given on an official form issued by the Division of Unadjusted Pensionable Earnings ("Pension Credits") Canada Pension Plan and signed, in a section reserved to office use only, by a M. Ali under a heading called "Authorized Signature". As Walsh J. said in Kightley v. Registrar of Trade Marks et al.[6], "it would certainly require great temerity and irresponsibility on the part of a party signing such a letter purporting to be signed on behalf of a senior officer if he did not have the authority to so act".
[13] The fact is that a person who signs, or purports to sign, for a senior officer in a department benefits from a presumption that he or she has the authority that he or she purports to exercise until such time as the presumption is rebutted[7].
[14] No evidence whatsoever has been adduced by the Respondent which could cast the slightest doubt that the person who signed was not authorized to sign the approval and which could have, if not rebutted, at least sufficiently undermined the presumption of validity which attaches to the signature of an official document so as to displace the burden and put on governmental officials the obligation to establish the validity of the signature as well as the existence of a proper authority vested in the signatory. Mere unsubstantiated allegations or speculations by the Respondent are not sufficient to displace the presumed authority under subsection 24(2) of the Interpretation Act and the presumption of validity of the signature.
[15] The Applicant submits as its main ground of appeal relating to the second finding of the Board that the Board erred in law in concluding that the Minister should have given due consideration to the spousal agreement and the intentions of the parties expressed therein although such agreement was not binding on the Minister as it failed to satisfy the stringent conditions of subsection 55.2(3) of the Act.
[16] I believe the Applicant is right in his submission and that the Board was erroneously influenced by the Respondent's argument that the words "following the approval by the Minister" in paragraph 55(1)(c) of the Act give the Minister a discretion to either approve or disapprove of the division requested by the Applicant.
[17] Indeed, sections 55.1 and 55.2 of the Act establish a regime of mandatory division of unadjusted pensionable earnings in the circumstances described in that section which, broadly stated, refer to spouses living separate and apart after the breakdown or nullity of their marriage or the breakdown of their common law relationship. The only exceptions to the mandatory nature of the regime are to be found in subsections 55.1(5) and 55.2(3).
[18] The first exception found in subsection 55.1(5) gives the Minister a residual discretion not to make or to cancel the division of the earnings where such division would be detrimental to both spouses or former spouses.
[19] As for the second exception, it appears that Parliament has accepted that, under strict conditions, an agreement between the spouses not to divide the earnings be binding on the Minister.
[20] It is clear under the Act that division of unadjusted pensionable earnings is the rule, non-division the exception. The heading to subsection 55.1(1) reads "When mandatory division to take place" and the introductory words of subsection 55.1(1) stipulate that "a division of unadjusted pensionable earnings shall take place in the following circumstances". There is no merit in the Respondent's submission that the "approval by the Minister" mentioned in paragraph 55.1(1)(c) gives the Minister discretion to approve or disapprove of the division. Such approval merely relates to the conditions required by an individual to qualify as an applicant under the Act. In other words, the Minister may refuse to approve an application for division of the earnings if the applicant does not met the conditions imposed by statute. However, once the Minister has approved the application because the applicant meets the conditions, a mandatory division is to take place unless the two exceptions to the regime are applicable.
[21] In my view, the Board's finding that the Minister and the Review Tribunal should have given the agreement and the intention of the parties therein due consideration, even if that agreement was not binding, implies that there is in the Minister, in addition to the two exceptions already mentioned, a residual discretion not to operate a division of the unadjusted pensionable earnings. Nothing in the Act can support such a finding.
[22] I can understand the anger and frustration of the Respondent who had entered into an agreement with his former common law spouse to definitively settle the consequences of the breakdown of their relationship. He is not the first and only one to experience the rigour of the Act[8]. However, the intent of Parliament clearly was to install a regime of compulsory credits splitting to protect spouses or former spouses in case of a failure of their marriage or common law relationship.
[23] I would grant the application for judicial review, quash the order of the Board dated June 24, 1994 and confirm the decision of the Review Tribunal.
"Gilles Létourneau"
J.A.
"I agree,
Julius A. Isaac
C.J."
"I agree
F.J. McDonald J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-193-97 A-227-97
STYLE OF CAUSE: The Minister of Human Resources Development et al. v. Gerhard Wiemer et al.
Dorothea Hildegard Kukat v. Gerhard Wiemer et al.
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: May 15, 1998
REASONS FOR JUDGMENT OF THE COURT BY: Létourneau J. A.
CONCURRED IN BY: The Chief Justice McDonald, J. A.
DATED: June 9, 1998
APPEARANCES:
Ms. Sharlene M. Telles-Langdon for the Minister
Mr. Sidney Green for the Respondent (Gerhard Wiemer) Mr. Donald George for Dorothea H. Kukat SOLICITORS OF RECORD:
Mr. George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Minister
Sidney Green, Q.C.
Winnipeg Manitoba for the Respondent (Gerhard Wiemer)
Swystun Karasevich Windsor
Winnipeg, Manitoba for Dorothea H. Kukat
[1] The ministerial decision granting Mrs. Kukat request for a division of the Respondent's unadjusted pensionable earnings was rendered, at the time, by the Minister of Health and Welfare.
Power to act for ministers
(2) Words directing or empowering a minister of the Crown to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include
(a) a minister acting for that minister or, if the office is vacant, a minister designated to act in the office by or under the authority of an order in council;
(b) the successors of that minister in the office;
(c) his or their deputy; and
(d) notwithstanding paragraph (c), a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.
[4] R.v. Harrison, [1977] 1 S.C.R. 238, at pp. 245-46. See in England Carltona, Ltd. v. Commissioners of Works, [1943] 2 All. E.R. 560 (C.A.).
[7] Ali v. Minister of Manpower and Immigration, [1976] 1 F.C. 185, at pp. 188-89 (Fed. C.A.); Molson Companies Ltd. v. John Labatt Ltd. et al., (1984), 1 C.P.R. (3d) 329, at p. 334 (F.C.T.D.).
[8] See Lauritsen v. The Minister of Employment and Immigration, (1994) New Developments 6068 (Pension Appeals Board) where Mrs. Lauritsen sought and obtained the division of earnings notwithstanding a provision in their signed Agreement that there be no further division of property and that the party making an application under the Act to divide unadjusted pensionable earnings shall withdraw such application at the request of the other party. Mrs. Lauritsen refused to do so and obtained a division of the earnings.