Chartrand v. Healthcare of Ontario Pension Plan (HOOPP), 2021 ONSC 5840
CITATION: Chartrand v. Healthcare of Ontario Pension Plan (HOOPP), 2021 ONSC 5840
DIVISIONAL COURT FILE NO.: DC-19-2573
DATE: 20210902
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
JOAN CHARTRAND Applicant (Responding Party)
– and –
HEALTHCARE OF ONTARIO PENSION PLAN (HOOPP) Respondent (Moving Party)
COUNSEL:
André Bluteau, for the Applicant (Responding Party)
Emily Lawrence, for the Respondent (Moving Party)
HEARD at Toronto (by videoconference): August 24, 2021
Swinton J.
Overview
[1] The respondent, Healthcare of Ontario Pension Plan (HOOPP), has brought a motion to quash this application for judicial review on the basis that the Divisional Court does not have jurisdiction to grant judicial review against HOOPP, because it is not a public body. For the reasons that follow, I would grant the motion and quash the application for judicial review.
Background
[2] The applicant seeks survivor benefits from HOOPP as a result of the death of her niece Miranda Tabi, who was a member of the pension plan. The applicant is the named beneficiary. However, HOOPP determined, in accordance with the terms of the pension plan and s. 48 of the Pension Benefits Act, R.S.O. 1990, c. P.8 (“PBA”), that survivor benefits were payable to the common law spouse of the deceased, Benjamin Ebokem.
[3] The applicant objected to the payment to Mr. Ebokem and launched a civil action against him and HOOPP, claiming damages from Mr. Ebokem. She subsequently brought an application for judicial review against HOOPP to challenge its decision. The benefits have not been paid to Mr. Ebokem because of the dispute concerning entitlement.
[4] HOOPP has brought the present motion to quash the application for judicial review, because it claims the relief sought is not available under the Judicial Review Procedure Act, R.S.O. 1990, c. J.2 (“JRPA”) because it is a private entity, not a public body.
Analysis
[5] A single judge of the Divisional Court may quash an application for judicial review where it is plain and obvious that the Court does not have jurisdiction (Adams v. Attorney General of Canada, 2011 ONSC 325 (Div. Ct.) at para. 18).
[6] The applicant argues that it is not plain and obvious that the Divisional Court lacks jurisdiction to grant judicial review. In particular, she submits that comments made by Gomery J., when she dismissed the civil action, give rise to issue estoppel.
Issue Estoppel
[7] Gomery J. dismissed the applicant’s civil action pursuant to rule 2.1.01, as frivolous, vexatious or an abuse of process in a decision released in April 2020 (reported at 2020 ONSC 2574). The motion to dismiss had been brought by Mr. Ebokem.
[8] After receiving the motion to dismiss, Gomery J. had issued an endorsement giving notice of the possible dismissal of the action to the applicant. In the endorsement, she set out a timetable for a response from the applicant, and she directed that Mr. Ebokem and HOOPP would be provided with an opportunity to respond if the applicant filed responding materials by a specified date.
[9] The applicant filed no materials, and as a consequence, there were no responding materials from HOOPP before the Court. The motion was heard by Gomery J. in writing. She concluded that the action against Mr. Ebokem was a collateral attack against HOOPP’s determination about entitlement to survivor benefits. She stated that the proper venue to challenge that decision was in the judicial review pending against HOOPP.
[10] The applicant argues that issue estoppel now precludes me from determining whether the Divisional Court has jurisdiction to determine the application for judicial review. I disagree.
[11] Issue estoppel may apply where there has been a final judicial determination of an issue between the parties in an earlier proceeding. However, the court being asked to apply issue estoppel has a discretion whether to do so, and the court must determine whether an injustice would result if issue estoppel applied (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460 at paras. 25, 33 and 80).
[12] Issue estoppel does not apply in the present circumstances. Gomery J. was determining a different issue from that before me – namely, whether the civil action was frivolous, vexatious or an abuse of process. She was not sitting as a judge of the Divisional Court, nor was she being asked to rule on the scope of the Divisional Court’s jurisdiction to give relief against HOOPP, as I am asked to do in the present motion.
[13] Moreover, even if she has given an opinion that the matter should proceed by judicial review, she engaged in no analysis of the legal principles concerning the availability of judicial review. HOOPP had no opportunity to make submissions on the issue of jurisdiction to her. In these circumstances, it would not be just to bar adjudication of the issue of the jurisdiction of the Divisional Court to grant judicial review against HOOPP.
The Divisional Court lacks jurisdiction to grant judicial review against HOOPP
[14] In my view, it is plain and obvious that the Divisional Court has no jurisdiction to grant judicial review against HOOPP. Pursuant to s. 2(1)1 of the JRPA, the Divisional Court can grant prerogative relief, such as an order of certiorari. Pursuant to s. 2(1)2, the Divisional Court can grant declaratory relief with respect to the exercise of a “statutory power”, as defined in s. 1. Neither form of relief is available against HOOPP.
[15] HOOPP made a decision about entitlement to survivor benefits under the pension plan. In making that decision, HOOPP was not exercising a “statutory power”, as defined in s. 1 of the JRPA, as it was not exercising a power conferred by or under a statute. Therefore, declaratory relief under s. 2(1)2 of the JRPA is not available.
[16] Nor is relief available under s. 2(1)1. Relief in the nature of certiorari is a public law remedy. As the Supreme Court of Canada stated in Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26, [2018] 1 S.C.R. 750 at para. 14, “Judicial review is only available where there is an exercise of state authority and where that exercise is of a sufficiently public character.” See, as well, Deeb v. Investment Industry Regulatory Organization of Canada, 2012 ONSC 1014 (Div. Ct.) at para. 28.
[17] The Court of Appeal in Setia v. Appleby College, 2013 ONCA 253 set out a number of factors to consider in determining whether a decision is subject to public law remedies. These factors include, among others, the nature of the decision-maker, its relationship to other statutory regimes or parts of government, the extent to which the decision-maker is controlled by government, and the suitability of public law remedies (at para. 34).
[18] Certiorari is not available to challenge HOOPP’s entitlement decision because HOOPP is not a public body, and it does not exercise governmental functions. The affidavit evidence makes it clear that HOOPP is a private pension plan covering numerous employers and employees in the health care sector. It was created by an Agreement and Declaration of Trust signed by the settlors - the Ontario Hospital Association (an employers’ association), four unions and the original trustees. HOOPP is governed by a Board of Trustees and administered by staff, and it provides pension benefits to members in accordance with the terms of the plan.
[19] While HOOPP is governed by the PBA with respect to matters such as funding, solvency and member entitlements, so, too, are many other public and private sector pension plans. The fact that the PBA provides minimum entitlements for members does not turn HOOPP or any other pension plan administrator into a governmental or public institution for purposes of judicial review.
[20] The applicant relies on Clifford v. Ontario (Attorney General), 2009 ONCA 670 to argue that HOOPP is public in nature, because benefits are available to employees of public hospitals. However, Clifford dealt with a different pension plan, the Ontario Municipal Employees Retirement Plan or OMERS.
[21] There is no discussion of jurisdiction in the Court of Appeal’s reasons, but it appears, from the reasons of the dissenting judge in the Divisional Court, that the judicial review concerned a decision of an appeal tribunal established pursuant to a regulation that was made in accordance with a provision of the Ontario Municipal Employees Retirement Act (2008 26256 (Div. Ct.) at para. 44). Clifford does not assist the applicant. HOOPP was not created by statute, nor is it subject to extensive regulation and government control, and it was not acting pursuant to statutory authority when it determined entitlement to benefits.
[22] Similarly, the fact that there has been judicial review of decisions of the Ontario Teachers’ Pension Plan does not assist, as that plan was also statutorily created (see, for example, Ontario (Minister of Education) v. Ontario Teachers’ Pension Plan Board, 1998 1539 (Ont. C.A.)).
[23] I agree with the analysis of the British Columbia Supreme Court in Ehrcke v. Public Service Pension Board of Trustees, 2004 BCSC 757, where the Court held that judicial review was not available to challenge a decision of a public service pension plan that was created by a declaration of trust. The Court observed that the fact the pension applied to public sector employees was not sufficient to give it a public character and to render decisions of the plan subject to judicial review (at para. 61).
[24] In my view, it is plain and obvious that the present application for judicial review will fail, because entitlement decisions made by HOOPP are not of a governmental or public nature. The dispute between the parties is of a private nature.
[25] Moreover, the resolution of the dispute is not suitable to a public law remedy. In general, judicial review focusses on the reasonableness or correctness of a decision in light of the record before the decision-maker and the applicable law. It does not require the Divisional Court to hear new evidence or engage in factfinding.
[26] The determination of entitlement to survivor benefits would require the presence of Mr. Ebokem as a party, as well as HOOPP and the applicant to resolve. Mr. Ebokem is not currently a party to the application. Ultimately, the outcome of the dispute is likely to turn on evidentiary findings about the spousal relationship, a task that is more appropriately undertaken in a civil action in the Superior Court of Justice.
[27] HOOPP has undertaken that it will not oppose the commencement of a new civil action by the applicant that is properly tailored to determine her claim for survivor benefits under the plan.
Conclusion
[28] The applicant submits that I should refer the issue of jurisdiction to the panel for resolution. I refuse to do so, as it is plain and obvious that the Divisional Court does not have jurisdiction to review HOOPP’s entitlement decision. For these reasons, the motion is granted, and the application for judicial review is quashed.
Costs
[29] HOOPP seeks costs of this motion and an earlier motion to strike the filing of an improper affidavit by the applicant.
Costs of the motion to strike the affidavit
[30] The motion to strike the affidavit was dismissed as moot by Favreau J. after the applicant withdrew the affidavit during a case conference. She ruled that the dismissal was without prejudice to HOOPP’s right to claim costs. HOOPP had already prepared materials for the motion and uploaded them to Caselines in accordance with directions given in an earlier case conference.
[31] In my view, HOOPP can reasonably claim some costs in the circumstances, given the conduct of the applicant in respect of the affidavit. Two case conferences were held in respect of this motion, and materials and a factum were prepared. HOOPP is entitled to some compensation for costs thrown away.
[32] I order the applicant to pay costs of $1,500 all inclusive for the motion to strike, an amount that is fair and reasonable in the circumstances.
Costs of the motion to quash
[33] HOOPP seeks costs of this motion in the amount of $28,457 on a partial indemnity basis. While HOOPP is entitled to its costs of the motion, as it is the successful party, I do not find the amount claimed to be fair and reasonable. In my view, the hours claimed for four timekeepers are excessive.
[34] Accordingly, I order the applicant to pay costs of $10,000 all inclusive to HOOPP for the motion to quash.
Swinton J.
Released: September 2, 2021