Date: 20050110
Docket: A-382-03
Citation: 2005 FCA 4
CORAM: DESJARDINS J.A.
BETWEEN:
ARTHUR BERNIER
Applicant
and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
AND NORMA G. BERNIER
Respondents
Heard at Toronto, Ontario, on November 17, 2004.
Judgment delivered at Ottawa, Ontario, on January 10, 2005.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
PELLETIER J.A.
Date: 20050110
Docket: A-382-03
Citation: 2005 FCA 4
CORAM: DESJARDINS J.A.
BETWEEN:
ARTHUR BERNIER
Applicant
and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
AND NORMA G. BERNIER
Respondents
REASONS FOR JUDGMENT
[1] This is an application for judicial review of the decision of the Pension Appeals Board (the "Board") dismissing the applicant's appeal with respect to the effect on the applicant and his former spouse, Norma G. Bernier, of the division of unadjusted pensionable earnings under the Canada Pension Plan, R.S. 1985, c. C-8 (the "Plan").
[2] The applicant and Norma G. Bernier were married in 1950. They separated in April 1998. At the time of their separation, they were both receiving Canada Pension Plan retirement pensions. The applicant was receiving a reduced pension from September 1987 since he had elected to receive such a reduced pension in that year.
[3] Following their separation, Norma G. Bernier applied for a division of unadjusted pensionable earnings under the provisions of the Plan.
[4] Prior to the division of unadjusted pensionable earnings, the pensions received were as follows:
Arthur Bernier ........................ $618.85 / per month
Norma G. Bernier ................... $337.00 / per month
Total ............... $955.85 / per month
[5] After the division, the pensions received became as follows:
Arthur Bernier ........................ $385.52 / per month
Norma G. Bernier ................... $504.00 / per month
Total ............... $889.52 / per month
[6] As a result of this division, the aggregate pension income declined by $66.92 per month during the year 2000. During the year 2003, the reduction amounted to $71.53 per month.
[7] The applicant does not question the correctness of the calculation. He argues it should be revised to take into account the unfairness of the result.
[8] The Board agreed that the results were unfair. It nevertheless dismissed the appeal in the following terms (A.B., p. 12):
While we agree that the results are unfair, we can find no error in the Respondent's calculations; they are founded on the Act and the Regulations. We have no jurisdiction to remedy the inequitable result.
In the event that we had jurisdiction, we would not hesitate to provide a remedy as requested by Mr. Bernier. The facts before us cry out for such a remedy which is beyond our jurisdiction.
[9] The respondent Minister (the "Respondent") provided the Court with a detailed memorandum in which he explains the calculations and indicates the provisions of the Plan which support these calculations.
[10] The respondent states that one of the applicable concepts under the Plan is that the responsible Minister makes a one-time division and then the parties continue their own unique contributory history without reference to their earlier relationship. The Minister asserts that both the applicant and his former spouse have been treated in accordance with the terms of the Plan.
[11] The applicant, as indicated above, does not question the accuracy of the figures.
[12] This Court has no jurisdiction to intervene in the decision of the Board on the basis that the result arrived at by the respondent is unfair, if the decision is otherwise unreviewable.
[13] This application should therefore be dismissed. The respondent is not asking for costs.
(s) "Alice Desjardins"
J.A.
"I agree.
Marshall Rothstein"
"I agree.
J.D. Denis Pelletier"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-382-03
STYLE OF CAUSE: ARTHUR BERNIER v. THE MINISTER OF HUMAN RESOURCES DEVELOPMENT AND NORMA G. BERNIER
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Wednesday November 17, 2004
REASONS FOR JUDGMENT BY : Desjardins J.A.
CONCURRED IN BY: Rothstein J.A.
Pelletier J.A.
DATED: January 10, 2005
APPEARANCES:
Mr. Arthur Bernier APPELLANT ON HIS OWN BEHALF
Mr. Glenn Sheskay FOR THE RESPONDENT
MINISTER OF HUMAN RESOURCES DEVELOPMENT
SOLICITORS OF RECORD:
Mr. Arthur Bernier APPELLANT ON HIS OWN BEHALF
Minden, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada MINISTER OF HUMAN RESOURCES
Ottawa, Ontario DEVELOPMENT
Mrs. Norma Bernier RESPONDENT ON HER OWN BEHALF
Scarborough, Ontario