Ottawa, Ontario, December 18, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
Applicant
and
THE MINISTER OF SOCIAL DEVELOPMENT CANADA
(formerly HUMAN RESOURCES DEVELOPMENT CANADA)
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This application for judicial review challenges a decision of a Review Tribunal established to hear appeals arising under the Old Age Security Act, R.S.C. 1985, c. O-9. The underlying dispute between the Applicant, Fred Kombargi, and the Minister of Social Development Canada (Department) concerns a decision by the Department to recover a claimed Guaranteed Income Supplement (G.I.S.) overpayment. That claim arose in 2001 after Mr. Kombargi’s wife, Majdouline Kombargi, cashed in an RRSP in the amount of $11,725.11. The additional income realized by Mrs. Kombargi in that taxation year made both Mr. and Mrs. Kombargi ineligible for the G.I.S. benefits which they had jointly applied for in April, 2001 and which they each began to receive shortly thereafter.
[2] When the Department notified Mr. and Mrs. Kombargi that the overpayment would be recovered through deductions from their future G.I.S. benefits, they advised the Department that their marriage had previously broken down and they had effectively separated on June 1, 2001. They maintained that because Mrs. Kombargi had been the sole beneficiary of the RRSP income, Mr. Kombargi was not accountable for any G.I.S. repayment. In simple terms, it was contended that the RRSP income received by Mrs. Kombargi should not have been treated by the Department as family income for the purposes of determining Mr. Kombargi’s eligibility for the G.I.S.
[3] The Department undertook an investigation of the claim by Mr. and Mrs. Kombargi that they had been separated from June 1, 2001 until a reconciliation in February, 2004. Very little independent evidence was produced by Mr. and Mrs. Kombargi to verify their claimed estrangement and, by all appearances, they continued to live as husband and wife. In the result, the Department maintained its decision that Mr. Kombargi had been overpaid. Mr. Kombargi was not satisfied with that decision and brought an appeal under s. 28(1) of the Act. His appeal was heard by a panel of three members (Tribunal) on July 26, 2005. The Tribunal dismissed Mr. Kombargi’s appeal and it is from that decision that he seeks relief on judicial review in this proceeding.
Tribunal Decision
[4] The single question before the Tribunal was whether Mr. and Mrs. Kombargi were separated during the year in which Mrs. Kombargi collapsed her RRSP. The Tribunal concluded that Mr. Kombargi had failed to establish, on a balance of probabilities, that his marriage had broken-down and that he and his wife had separated. The Tribunal described the evidence of separation offered by Mr. and Mrs. Kombargi as inconsistent, insufficient and uncertain. In coming to that conclusion the Tribunal made note of the following evidence:
i) Apart from a trip by Mrs. Kombargi to the home of her sister in the summer of 2001, the couple continued to reside together in their Toronto apartment.
ii) When Mrs. Kombargi left for the United States to stay with her sister, she purchased a round trip ticket in the expectation that a reconciliation might occur.
iii) Mr. and Mrs. Kombargi testified that they had not told their family members or their physician that they had separated and their evidence about informing friends was contradictory.
iv) No independent evidence of separation was produced in the form of a separation agreement, material changes to financial arrangements or third party confirmation.
v) Both Mr. and Mrs. Kombargi declared themselves to be married during the relevant period in their G.I.S. applications and also in Mrs. Kombargi’s 2001 Income Tax Return.
vi) It was only at the point when the Department advised Mr. and Mrs. Kombargi that it intended to recover the G.I.S. overpayment that they declared a marital separation.
Issues
[5] The issues before the Court involve the adoption of the appropriate standard of review followed by a determination of whether the Tribunal made any reviewable errors in reaching the conclusion that Mr. Kombargi had failed to establish a marital separation.
Standard of Review
[6] Counsel for the Department argued that this Court should not interfere with the Tribunal’s decision unless it finds that decision to be patently unreasonable. He maintained that the pragmatic and functional factors all point to a higher level of deference and he emphasized the point that the nature of the question presented is primarily evidence-based.
[7] Although a finding of marital separation is primarily based on facts it also requires the consideration of some legal elements. It is, therefore, an issue of mixed fact and law which will typically attract less judicial deference than a purely factual finding. I am inclined to the view that the standard of review in this case is one of reasonableness simpliciter. That was the conclusion reached by Justice Judith Snider in Canada v. Leavitt, [2005] F.C.J. No. 824, 2005 FC 664, and also by Justice Carolyn Laden-Stevenson in Canada v. Chhabu, [2005] F.C.J. No. 1557, 2005 FC 1277. Each of those cases involved a review of a Tribunal decision on an issue similar to the one raised in this case. Nevertheless, whatever the standard of review may be for this application, I have concluded that the Tribunal’s decision stands up to scrutiny and cannot be found to be unreasonable.
[8] On the standard of reasonableness, the Tribunal’s decision will only be set aside if there is no line of analysis within the given reasons that could reasonably have led it from the evidence received to the conclusion reached. If any of the reasons given to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, the decision will not be unreasonable and a reviewing court must not interfere: see Southam Inc. v. Director of Investigation and Research, [1997] 1 S.C.R. 748 at para. 56.
[9] It bears repeating that on an application for judicial review of factual or fact-based findings made by an administrative decision-maker, this Court cannot substitute its own views simply because it might have come to different conclusion. In this case the Tribunal had the benefit of hearing Mr. and Mrs. Kombargi and weighing their testimony against the documentary record. The Tribunal had a distinct advantage from its first-hand exposure to the evidence, an advantage that this Court, on judicial review, does not enjoy. That is one important reason for extending deference to the Tribunal’s assessment of the evidence with respect to the separation issue.
Analysis
[10] Mr. Kombargi had some difficulty in identifying any erroneous findings made by the Tribunal. He contended that the decision as a whole was wrong and he attempted to re-argue many of the points that had not been accepted by the Tribunal. He did identify some evidence which he felt the Tribunal failed to properly consider including the subsequent acceptance by Revenue Canada of his declaration of marital separation and the failure by the Tribunal to carefully examine the family financial arrangements which he believed were indicative of a separation. He also made the point that the Tribunal was unduly influenced by the fact of his continuing cohabitation with his wife.
[11] Notwithstanding, Mr. Kombargi’s arguments, the Tribunal’s conclusion cannot be described as unreasonable. Although it was open to the Tribunal to have come to a different conclusion, there was ample evidence to support its finding that Mr. Kombargi had not proven a separation. Indeed, the fact that Mr. and Mrs. Kombargi repeatedly declared themselves to be married at the relevant time - at least until the overpayment claim was made by the Department - is strong evidence supporting the Tribunal’s decision. Mr. Kombargi had testified that those declarations of marriage were simple mistakes and he argued the same point before the Court. However, it was reasonable for the Tribunal to reject Mr. Kombargi’s explanation having particular regard to the number of opportunities available to Mr. and Mrs. Kombargi to have declared a separation in advance of the Department’s claim to an overpayment. In circumstances where Mr. and Mrs. Kombargi also continued to reside in the same household and where they tendered very little independent evidence to establish a separation, the Tribunal’s decision is certainly reasonable if not compelling.
[12] I also do not accept Mr. Kombargi’s complaint that the Tribunal failed to adequately consider the evidence. It is well-established that a decision-maker is not required to refer to every piece of evidence placed before it: see Kellar v. Canada (Minister of Human Resources Development), [2002] F.C.J. No. 732, 2002 FCA 204 at para. 6, Gavoci v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 249, 2005 FC 207 at para. 7.
The fact that Revenue Canada accepted at face-value Mr. and Mrs. Kombargi’s subsequent declaration of separation does not prove that they were actually separated. Similarly, the banking records showing payments by Mrs. Kombargi to Mr. Kombargi for her “share” of rent and household expenses are not strongly indicative of a marital separation – particularly when those arrangements appear to have continued even after their reconciliation. It is perhaps noteworthy as well that many married couples maintain a degree of fiscal independence and in doing so, no reasonable inference of marital discord would arise. These are not points of evidence with significant probative value and the Tribunal did not err by not referring to them in its decision.
[13] Finally, while I agree with Mr. Kombargi that it is legally possible for a married couple to live separately in the same household, I can find nothing in the Tribunal decision which suggests otherwise. If the Tribunal had said that a separation could never arise in such circumstances, I would not hesitate to set the decision aside. The fact, though, that the Tribunal examined all of the evidence concerning the state of the Kombargi’s relationship indicates that it did not consider their common residency to be a determinative or threshold issue of separation. While there are certainly examples of separated spouses living under the same roof, such arrangements are probably not the norm and when they do occur, the task of proving a separation is made all the more difficult. Mr. Kombargi needed to advance a much stronger case than he did if he hoped to prove that his marriage had truly broken-down. In the end, the Tribunal was not convinced of that fact and there is no legal basis for me to set aside its decision.
[14] Neither party requested costs and, in the circumstances, no costs are ordered.
JUDGMENT
THIS COURT ADJUDGES that this application is dismissed without costs.
"R. L. Barnes"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1858-05
STYLE OF CAUSE: FRED KOMBARGI
v.
MINISTER OF SOCIAL DEVELOPMENT CANADA
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 13, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: Justice Barnes
DATED: December 18, 2006
APPEARANCES:
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ON HIS OWN BEHALF
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FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Deputy Attorney General of Canada |
FOR THE RESPONDENT
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