T-1622-95
| IN THE MATTER OF an application to review |
and set aside, pursuant to section 18(1)
and 18.1 of the Federal Court Act, R.S.C.
1985, c F-7, as amended.
AND IN THE MATTER OF a decision of the
Review Tribunal established pursuant to
s. 31 of the Old Age Security Regulations,
C.R.C. 1978, c. 1246, as amended.
B E T W E E N:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
PATRICIA LANDRY
Respondent
REASONS FOR ORDER
ROTHSTEIN J.:
The issue in this judicial review is whether a review tribunal established under the Old Age Security Act; R.S.C. 1985, c. O-9, exceeded its jurisdiction or made a patently unreasonable error of law in determining that the respondent qualified for a Widowed Spouse's Allowance. Under the Old Age Security Act, a Spouse's Allowance may be paid to a widow who has attained 60 years of age but has not attained 65 years of age. Subsection 21(1) of the Old Age Security Act provides in part:
| 21. (1) Subject to this Act and the regulations, for each month in any fiscal year, a spouse's allowance may be paid to a widow who |
| (a) has attained 60 years of age but has not attained 65 years of age; and |
(b) . . .
Section 2 of the Act provides:
| "widow" includes widower, and means a person whose spouse has died and who has not thereafter become the spouse of another person. |
The respondent's first husband died in 1970. She remarried in 1973. Her second marriage ended in divorce in 1979. Her second husband died in 1990. The respondent became 60 years of age in July 1993. Her application for a Widowed Spouse's Allowance was rejected because the Minister of Health and Welfare Canada found that she did not qualify under the definition of widow under the Act. Because she had remarried she was disqualified in respect of her first husband. Because her second marriage ended in divorce she was not a widow when her second husband subsequently died.
The respondent appealed to a review tribunal established under subsection 28(2) of the Old Age Security Act. Subsection 28(2) provides:
| 28. (2) Where a pensioner, the spouse of a pensioner or a widow is dissatisfied with the decision or determination made under this Act that no spouse's allowance may be paid to the spouse or widow, or as to the amount of any spouse's allowance that may be paid to the spouse or widow, the pensioner, spouse or widow may appeal against the decision or determination to a tribunal to be established and conducted in accordance with the regulations, and the decision of the tribunal, subject only to variation by the tribunal on application made to it by that person or the Minister based on evidence not previously considered by it, is final and binding and is not subject to appeal or review by any Court. |
| [emphasis added] |
The tribunal, by a 2-1 decision, found that the respondent was entitled to the Widowed Spouse's Allowance. The decision states:
| It is the majority decision of the Review Tribunal that Mrs. Landry qualifies for Widowed Spouse Allowance under her first marriage to Mr. Alvin A. Bonin. The Tribunal feels that the legislation under the Old Age Security should be the same as the one under the Canada Pension Plan. Mrs. Landry's benefit would be accepted without any questions if she had obtained a civil annulment instead of, or on top of a church annulment, however, because Mr. Landry has since then passed away, the courts do not allow for a civil annulment if both parties to the annulment cannot be heard. Unfortunately, Mrs. Landry's circumstances have put her in a situation adverse to the legislation, and the Tribunal feels that the legislation should be changed to recognize circumstances such as Mrs. Landry's case. |
Subsection 28(2) of the Act contains a privative clause. The courts will only interfere with decisions of tribunals protected by a privative clause if the decision made errs in jurisdiction or constitutes a patently unreasonable error of law. See for example Canada (A.G.) v. P.S.A.C., [1993] 1 S.C.R. 941; C.A.I.M.A.W. v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Canadian Union of Public Employees 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227 at 237.
With particular relevance to this case, it was held in Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382 by Dickson J. (as he then was) at 388-89:
| There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissable conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene.1 |
In the decision of the review tribunal, the majority realized that "Mrs. Landry's circumstances have put her in a situation adverse to the legislation". The majority then says "that the legislation should be changed to recognize circumstances such as in Mrs. Landry's case". It is apparent that in finding "that Mrs. Landry qualifies for a Widowed Spouse's Allowance", the majority of the review tribunal themselves acknowledged that their decision was contrary to law.
This is not a question of interpretation of law. It is an express disregard of the law. When the tribunal made its decision that, even though not allowed by law, Mrs. Landry qualified for a Widowed Spouse's Allowance, it exceeded its jurisdiction, and thus failed to discharge its public duty and departed from legally permissable conduct. Obviously, a finding acknowledged by a tribunal to be contrary to law cannot be "rationally supported on a construction which the relevant legislation may reasonably be considered to bear". Judicial intervention is therefore not merely permissible, but required.
The majority seems to have been influenced by the scheme of the legislation under the Canada Pension Plan and the fact that Mrs. Landry had obtained an annulment of her second marriage in the Roman Catholic Church. While non-parallel schemes under two Acts dealing with the same broad subject matter, i.e. government pensions, gives rise to a question as to the reason for the differences, it is not open to a review tribunal to take the law into its own hands because it thinks the schemes should be the same. The old age security net in Canada consists of a number of federal, provincial and municipal programs. Each has its own purpose and objective. While at a policy level, coordination of the different schemes might be desirable, there is no legal reason that the definition of eligibility under different legislation should be the same.
The annulment obtained by the respondent was under ecclesiastical law. However, she was divorced in the Supreme Court of Nova Scotia. The necessary implication of the decree absolute of divorce is that for civil law purposes the respondent had been married and had "become the spouse of another person", thereby excluding her from being considered a widow of her first husband for the purposes of the Old Age Security Act. Whether the respondent could have obtained a civil annulment such that she would not be considered to have remarried or become the spouse of another person was not before the review tribunal either by way of evidence or argument. The ecclesiastical annulment was not relevant for purposes of Widowed Spouse's Allowances under the Old Age Security Act.
This is a case in which one might have some sympathy for the respondent. She is surviving on a modest pension under the Canada Pension Plan and on welfare. She says she resides on Cape Breton Island where jobs are difficult to obtain especially for persons of her age, although she said she had not sought work. Counsel for the applicant advised the Court that the provision of the Old Age Security Act which disqualifies the respondent from Widowed Spouse's Allowance was being challenged elsewhere on Charter grounds but that the case was either not going forward or, if it was, that it would not be dealt with in the foreseeable future. The Charter was not argued in the case at bar. Had the Charter proceedings referred to been more definite, I might have considered adjourning this judicial review pending outcome of the Charter challenge. However, without something of a definitive nature in respect of those proceedings, I am unable to do so.
The decision of the review tribunal is quashed, and the decision of the Minister is restored.
"Marshall E. Rothstein"
J U D G E
TORONTO, ONTARIO
FEBRUARY 25, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1622-95
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
- and -
PATRICIA LANDRY
DATE OF HEARING: FEBRUARY 10, 1997
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: FEBRUARY 25, 1997
APPEARANCES:
Ms. Cathy Doolan
For the Applicant
Ms. Patricia Landry
Ms. Elizabeth Cook
For the Respondent
SOLICITORS OF RECORD:
Department of Justice
Legal Services
24 Selkirk Street
1st Floor
Vanier, Ontario
K1A 0L1
Fax: (613) 952-5327
George Thomson
Deputy Attorney General
Of Canada
For the Applicant
Maurice Smith
Nova Scotia, Legal Aid
273 Main Street
Antigonish, N.S.
B2G 2C3
Fax: (902) 863-7598
For the Defendant
FEDERAL COURT OF CANADA
Court No.: T-1622-95
Between:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
PATRICIA LANDRY
Respondent
REASONS FOR ORDER
__________________
1 This passage has been relied on in several recent cases, including: Bell v. Canada (Canadian Human Rights Commission) , (1996) D.L.R. (4th) 193, and Hawker Siddeley Canada Inc. v. Nova Scotia (Superintendent of Pensions) (1993), 108 D.L.R. (4th) 95, affirmed by the N. S. Supreme Court Appeal Division (1994) 113 D.L.R. (4th) 424.