Date: 20040806
Docket: T-974-01
Citation: 2004 FC 1084
Ottawa, Ontario, this 6th day of August, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ERIC SCHEUNEMAN
Plaintiff
and
HER MAJESTY THE QUEEN
(HUMAN RESOURCES DEVELOPMENT CANADA)
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Eric Scheuneman began receiving Canada Pension Plan (CPP) disability benefits in 1989. He was suffering from chronic fatigue syndrome. His dependent children also received benefits. In 1997, the defendant decided to review the situation and asked Mr. Scheuneman to undergo an independent medical examination. Mr. Scheuneman asked for details about the examining physician's background, credentials and publications before he would agree. He did not receive the information he felt he required and did not consent to be examined. As a result, the defendant terminated Mr. Scheuneman's benefits as of October 1, 1997.
[2] Mr. Scheuneman asked the defendant to reconsider. The defendant affirmed the original decision.
[3] Mr. Scheuneman then appealed to the CPP Review Tribunal. But, because he raised issues under the Canadian Charter of Rights and Freedoms, and alleged administrative errors in the handling of his file, the Tribunal lacked jurisdiction to deal with the matter. At that point, Mr. Scheuneman began this action seeking retroactive benefits, interest, compensation for any tax consequences of receiving a lump sum payment of past benefits, costs and damages. Soon thereafter, the Minister decided to reinstate Mr. Scheuneman's benefits retroactively to October 1, 1997.
[4] Even though Mr. Scheuneman obtained the benefits he sought, he continued this action for the other forms of relief: interest, tax compensation, costs and damages. He argues that the defendant acted negligently and violated his rights under the Charter.
[5] I can find no legal basis for Mr. Scheuneman's claim and must, therefore, dismiss this action.
I. Issues
1. Is there a legal foundation for Mr. Scheuneman's claim either:
(a) according to the law of negligence, or
(b) under the Charter?
2. If the answer to question one is yes, is Mr. Scheuneman entitled to damages?
[6] As I have concluded that the answer to question one is no, it is unnecessary to consider question 2.
II. Analysis
A. Is there a legal foundation for Mr. Scheuneman's claim either:
(a) according to the law of negligence, or
(b) under the Charter?
(1) The Law of Negligence
[7] Individuals are liable under the law of negligence if they owe another person a duty of care, they breach that duty and, as a result, they injure the other person. In this case, Mr. Scheuneman has failed to show that the respondent owed him a duty of care. Accordingly, I need not consider the other elements of the test.
[8] A duty of care arises only where there is a close relationship between the parties and it is reasonably foreseeable that one person's conduct would harm the other person. However, even where proximity and foreseeability are established, policy considerations may prevent the courts from recognizing a duty of care in the circumstances: Just v. British Columbia, [1989] 2 S.C.R. 1228; Cooper v. Hobart, [2001] 3 S.C.R. 537.
[9] Where a particular action falls into a category of claims that has already been recognized, courts need not decide whether the relationship between the parties creates liability for negligence or whether policy considerations should defeat it: Cooper, above. Where there is no analogous category of action, one must proceed on the basis of first principles. Here, there is no clear guidance in the case law regarding this type of action and I must, therefore, consider the relevant criteria to determine whether the defendant owed Mr. Scheuneman a duty of care.
[10] In my view, there was a close relationship between the parties in this case. The defendant was dealing with Mr. Scheuneman on an individual basis, reviewing his particular file and his entitlement to benefits. Its decision had an obvious and direct impact on him. It was reasonably foreseeable that the defendant's decision to terminate Mr. Scheuneman's benefits would cause him harm.
[11] I believe, however, that policy considerations prevent my recognizing a duty of care on the part of the defendant toward Mr. Scheuneman. In this context, "policy considerations" can include the courts' concern not to create a form of indeterminate liability - in other words, a novel, open-ended, potentially vast kind of legal action. In addition, the existence of alternative remedies militates against recognizing a new duty of care: Cooper, above. It is the latter consideration that causes me to conclude that the defendant does not owe Mr. Scheuneman a duty of care.
[12] Here, alternative remedies clearly exist. To begin with, the Canada Pension Plan Act, R.S.C. 1985, c. C-8, itself provides a mechanism by which errors can be corrected (s. 66(4); see Annex "A" attached). In fact, Mr. Scheuneman benefited from this remedy when the defendant decided to reverse its earlier decision to cut off his payments. In addition, the availability of judicial review from the defendant's decision presents a sound policy reason not to recognize a duty of care on the defendant's part. Justice Stone came to the same conclusion in Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1995] 2 F.C. 467 (C.A.), affirmed, [1997] 1 S.C.R. 12. He concluded that the "availability of adequate administrative law remedies by way of judicial review is a consideration to be taken into account . . . in deciding whether the scope of prima facie duty of care should be negatived . . ." (at p. 488). In this case, any negligent conduct by the defendant would likely have provided grounds for a remedy in administrative law, whether based on an error of law, a perverse finding of fact or a violation of the duty of fairness. True, had he sought judicial review, Mr. Scheuneman would not have been entitled to all of the forms of relief he seeks here, but he would have had a reasonably expeditious means of obtaining his principal goal - payment of arrears - and his costs.
[13] In my view, these policy considerations preclude recognition of a duty of care on the defendant's part toward persons claiming benefits under the Canada Pension Plan Act.
(2) The Charter
[14] Mr. Scheuneman argues that the defendant breached his right to liberty and security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. He cites various decisions of the Supreme Court of Canada that, he says, expand the concepts of "liberty" and "security of the person" to the point that they cover the distress he suffered when his benefits were suspended and reinstated only after considerable delay: Askov v. Her Majesty the Queen, [1990] 2 S.C.R. 1199; New Brunswick (Minister of Health and Community Services) v. G.(J.) [J.G.], [1999] 3 S.C.R. 46.
[15] I do not read the jurisprudence cited by Mr. Scheuneman as expansively as he does. It is true that the Supreme Court has recognized that serious forms of state-imposed stress may fall within the terms of s. 7 of the Charter. In G.(J.), above, for example, the Court found that a mother's security of the person was at stake in proceedings involving the custody arrangements for her child. It held that the principles of fundamental justice required that she be represented by state-funded counsel.
[16] With respect to "liberty", the Supreme Court has held that where the state interferes with a person's fundamental life choices, s. 7 may apply: Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844. However, it has recently stated that purely economic interests are not included in s. 7: Siemens v. Manitoba (Attorney General), [2003] 1 S.C.R. 6, 2003 SCC 3.
[17] In my view, Mr. Scheuneman has not shown that the defendant's actions interfered with any fundamental life choices or caused him psychological stress on a level that would breach his Charter rights. In G.(J.), supra, Lamer C.J. cautioned against expanding the scope of s. 7 too far (at para. 59):
It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action. If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected.
[18] I have no doubt that Mr. Scheuneman was upset when the defendant cut off his benefits and that he suffered stress as a result. But I do not consider his circumstances to be equivalent to the risk of his child being taken away (as in G.(J.)) or even involving the kind of stigma and strain suffered by a respondent to a protracted human rights claim (as in Blencoe, above, where the Supreme Court did not find a violation of s. 7). Further, Mr. Scheuneman's interests were primarily economic.
[19] Mr. Scheuneman has not established that his rights under the Charter were violated.
III. Disposition
[20] Mr. Scheuneman has not established a legal basis for his claim under the law of negligence or the Canadian Charter of Rights and Freedoms. Accordingly, I must dismiss this action with costs. The defendant requested costs on a solicitor client basis, but I see no grounds for ordering such costs in the circumstances.
JUDGMENT
THIS COURT ORDERS that:
1. The action is dismissed with costs.
"James W. O'Reilly"
F.C.J.
Annex "A"
| Canada Pension Plan, R.S.C. 1985, c. C-8 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.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (U.K.), 1982, c. 11
Legal Rights Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
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Régime de pension du Canada, L.R.C. 1985, ch. C-8 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.
Charte canadienne des droits et libertés, Loi constitutionnelle de 1982, Annexe B de la Loi de 1982 sur le Canada, 1982, ch. 11 (R.-U.)
Garanties juridiques
Vie, liberté et sécurité 7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-974-01
STYLE OF CAUSE: ERIC SCHEUNEMAN V. HER MAJESTY THE QUEEN
(HUMAN RESOURCES DEVELOPMENT CANADA)
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: Monday, February 9, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
APPEARANCES BY:
Mr. Eric Scheuneman FOR THE PLAINTIFF/ON HIS OWN BEHALF
Mr. R. Jeff Anderson
Ms. Ramona Rothschild FOR THE DEFENDANT
SOLICITORS OF RECORD:
ERIC SCHEUNEMAN FOR THE PLAINTIFF/ON HIS OWN BEHALF
MORRIS ROSENBERG
Deputy Attorney General of Canada FOR THE DEFENDANT