Date: 20011127
Docket: 01-T-47
Neutral Citation: 2001 FCT 1297
BETWEEN:
ROMA LEBOEUF
Plaintiff
and
DEPARTMENT OF NATIONAL DEFENCE
Defendant
[1] This is a motion by the plaintiff for an extension of time in which to file an application for judicial review pursuant to s. 18.1 of the Federal Court Act.
[2] In fact, the plaintiff is seeking judicial review of a decision by the defendant dated April 28, 1994 pursuant to the Supplementary Retirement Benefits Act ("the Act").
[3] In his application the plaintiff himself admitted that under the applicable rules he had until May 28, 1994 to file an application for judicial review.
[4] The situation is in fact an incongruous one in which the plaintiff was a member of the Canadian Armed Forces until his release on July 10, 1973, the date on which he was able to collect a pension of $250.64 per month.
[5] Later, in 1981-82, the plaintiff went back to work in the Canadian Armed Forces Reserve and was again released on August 31, 1982 with a pension which, as a result of his subsequent work in the Armed Forces, was increased to $406.02 per month.
[6] Under the Act, the pension received by the plaintiff was only indexed when the latter arrived at his 60th birthday, namely March 1, 1994.
[7] On that date the plaintiff's pension of $406.02 was increased by $385.50 under s. 4(8) of the Canadian Forces Superannuation Act (CFSA), Part III, under which the plaintiff's release was presumed to be on January 1, 1975. He was accordingly left with a pension of $791.52 as of age 60.
[8] The strange situation of which the plaintiff is a victim is that if he had never taken the decision to go back to work for the Department of National Defence and contribute to his pension fund for nearly two years, his original pension of $250.64 would have been indexed by an additional amount of $679.23 at age 60, and he would have been left with a pension of a gross total of $929.87 as of March 1, 1994, whereas he is receiving as of March 1, 1994 a pension of $791.52 after contributing an additional amount for the years in which he worked in 1981-82.
[9] This situation is due primarily to the fact that the years between July 10, 1973, the date of his first release, and January 1, 1975, the date of his release as presumed under the provisions of the Act, caused him to lose the indexing benefits for 1973 and 1974 which, at the time, were quite high.
[10] The defendant's arguments were that the Act should be applied as it stands and that it was the Act which applied at the time the plaintiff took his decisions to back to work.
[11] Following that decision, the plaintiff took various steps, communicating regularly by letter and by various other contacts with the Department of National Defence, to have his pension adjusted, as he has to support his wife and with a pension of $791 a month he had difficulty providing for himself in the next five years before he can receive his old age pension at age 65.
[12] Despite his many efforts, the plaintiff was always met with a negative response from departmental authorities and with his income he had no opportunity either of using legal aid or of paying lawyer's fees himself to represent him in the matter.
[13] The plaintiff accordingly decided to build up a little capital over the years so he could continue to insist that the Department correct the situation in his favour. In this regard, he asked for the help of his MP, who initiated an exchange of correspondence with the Minister of National Defence.
[14] The plaintiff suggested that he found himself in a completely unfair situation, the only available remedy in the circumstances was an application for judicial review and the interests of justice would be well served if he was granted an extension of time so he could file this application.
[15] I have carefully reviewed the written submissions of the parties and also given special attention to the arguments made orally before me at the hearing of November 16 last.
[16] I can readily understand the extent of the plaintiff's frustration, finding himself in a legal dead end, when he had thought he would be improving his situation by returning to work for the Department of National Defence 20 years ago, and for the perverse consequences of that decision to be felt at the time of his retirement, the time when he most needed to have a reasonable pension fund, the time when it was most difficult for him to continue in the labour market as he was over 60 years old.
[17] Counsel also appeared before me last month and I agreed to grant an adjournment of one month in order to allow counsel for the defendant to check the facts of the case with his clients and determine if the matter could be dealt with in an administrative way.
[18] However, that has not been possible: the parties appeared before me again on November 16 and counsel for the defendant mentioned that his clients had told him that the plaintiff Mr. Leboeuf should have made different decisions at the time he returned to work in 1981-82, which would have allowed him to avoid the present unfortunate hardship, as for example by working for one year less a day, which would have made it possible to get around [TRANSLATION] "the provisions laid down in the Act".
[19] I indicated my strong disagreement with this approach, considering that litigants should not be required to resort to what has the appearance of underhand dealing in order to avoid complying with the Act, and I found it especially offensive that such suggestions should come from managers responsible for administering these programs in the first place.
[20] Counsel for the defendant himself admitted that the plaintiff's position may seem absurd but nevertheless does result from a strict reading of the Act.
[21] Counsel, who both did their work very well, submitted a number of cases to the Court, including Tarsem Singh Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263, which laid down the rules applicable when an application has to be made for an extension of time.
[22] I readily accept that the plaintiff Mr. Leboeuf always intended to prosecute his remedies in this matter and has said so quite clearly several times since April 28, 1994, the date of the decision.
[23] Counsel for the plaintiff submitted persuasive evidence that the plaintiff was in an extremely difficult financial situation and made a reasonable argument that throughout this period he had been prevented from filing an application for judicial review within the specified time limits.
[24] At this stage, I do not have to decide the merits of the case, but rather the legitimacy of the motion, based on what it concerns, and in particular the existence of a serious issue to be argued in the Federal Court.
[25] However, I must remind managers responsible for administering this program on behalf of the defendant that instead of suggesting that beneficiaries of the Act try to get around it in order to increase their eventual benefits, they should be making an immediate concerted effort to ensure that their management is above board and that not only is justice done in applying the Act, but it is seen to be done.
[26] The plaintiff also persuaded the Court that he had a serious issue to argue in the Federal Court and that it was in the interest of justice for him to be heard in order to assert his rights.
ORDER
[27] Consequently, the COURT ORDERS THAT the application for an extension of time to file an application for judicial review is granted and the plaintiff is authorized to file an application for judicial review within 15 days of the date of this judgment.
|
Pierre Blais Judge |
OTTAWA, ONTARIO
November 27, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-47-01
STYLE OF CAUSE: ROMA LEBOEUF AND DEPARTMENT OF NATIONAL DEFENCE
PLACE OF HEARING: QUÉBEC, QUEBEC
DATE OF HEARING: NOVEMBER 16, 2001
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATE OF REASONS: NOVEMBER 27, 2001
APPEARANCES:
ROGER BRETON FOR THE PLAINTIFF
FRANCIS ARCHAMBAULT FOR THE DEFENDANT
SOLICITORS OF RECORD:
BEAUMONT, PROVENÇAL, BRETON FOR THE PLAINTIFF
L'ANCIENNE-LORETTE, QUEBEC
MORRIS ROSENBERG FOR THE DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA