Chartrand v. Healthcare of Ontario Pension Plan, 2022 ONSC 3233

DIVISIONAL COURT FILE NO.: DC-2573/19

DATE: 2022-06-08

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: JOAN CHARTRAND / Applicant

AND:

HEALTHCARE OF ONTARIO PENSION PLAN / Respondent

BEFORE: Edwards, Lederer and Davies JJ.

COUNSEL: Joan Chartrand on her own behalf

Emily Lawrence and Evan Snyder, for the Respondent

HEARD at Toronto (in writing): May 10, 2022

ENDORSEMENT

[1] This motion arises out of a dispute over the payment of survivor pension benefits by the Healthcare of Ontario Pension Plan (HOOPP).

[2] Miranda Tabi was a registered practical nurse and a member of HOOPP. She passed away in March 2019. Under HOOPP, survivor benefits were to be paid to Ms. Tabi’s spouse. If Ms. Tabi did not have a spouse when she passed away, the survivor benefits would be paid to her designated beneficiary. Joan Chartrand is the registered beneficiary of Ms. Tabi’s pension benefits.

[3] After Ms. Tabi passed away, Benjamin Ebokem made a claim for survivor benefits as Ms. Tabi’s spouse. HOOPP accepted Mr. Ebokem’s claim and found that he was entitled to the survivor benefits, not Ms. Chartrand.

[4] Ms. Chartrand disputed HOOPP’s decision and on August 14, 2019 she started a civil action against Mr. Ebokem and HOOPP seeking $350,000 in damages. On December 19, 2019, Ms. Chartrand commenced an application for judicial review of the HOOPP decision. She then abandoned any claim for relief against HOOPP in her civil action.

[5] On April 24, 2020, Justice Gomery dismissed Ms. Chartrand’s civil action against Mr. Ebokem under R. 2.1.01 of the Rules of Civil Procedure as an abuse of process. Justice Gomery found that Ms. Chartrand’s civil claim was an improper collateral attack on HOOPP’s decision that Mr. Ebokem was Ms. Tabi’s spouse. In her reasons for dismissing Ms. Chartrand’s civil action, Justice Gomery wrote as follows:

In order to succeed in her action, Ms. Chartrand would have to prove that the Pension Plan erred in its finding [that Mr. Ebokem was Ms. Tabi’s spouse]. The proper venue for her to mount this type of challenge is on judicial review, which she has in fact initiated.

[6] Before Justice Gomery released her decision dismissing Ms. Chartrand’s civil action, HOOPP told Ms. Chartrand that it did not think the Divisional Court had jurisdiction to review the decision about Mr. Ebokem’s entitlement to survivor benefits because HOOPP is a private pension plan, not a state actor. Counsel for HOOPP told Ms. Chartrand that, in their view, a civil action against HOOPP was the appropriate forum to decide whether she is entitled to survivor benefits.

[7] After Justice Gomery dismissed Ms. Chartrand’s civil action, HOOPP brought a motion to quash Ms. Chartrand’s judicial review application. On September 2, 2021, Justice Swinton granted HOOPP’s motion and ordered Ms. Chartrand to pay $10,000 in costs (plus $1500 in costs on a motion to strike an affidavit filed by Ms. Chartrand which was never argued because the affidavit was withdrawn).

[8] Justice Swinton found that the Divisional Court has no jurisdiction to judicially review HOOPP’s decision that Mr. Ebokem is Ms. Tabi’s spouse notwithstanding Justice Gomery’s ruling. Justice Swinton found that Justice Gomery’s comment that judicial review was the “proper venue” for Ms. Chartrand to pursue her claim did not give rise to issue estoppel because Justice Gomery was not asked to rule on the scope of the Divisional Court’s jurisdiction and was not sitting as a Divisional Court judge.

[9] Ms. Chartrand now brings this motion before a full panel under s. 21(5) of the Courts of Justice Act, R.S.O. 1990 c. C.43 for an order setting aside the decision of Justice Swinton.

[10] The standard of review is correctness on questions of law. A decision can also be set aside under s. 21(5) of the Courts of Justice Act if the motion judge made a palpable and overriding error on a question of fact or a question of mixed fact and law.

[11] Ms. Chartrand argues that Justice Swinton erred because she failed to properly apply the principle of issue estoppel. Ms. Chartrand also argues that Justice Swinton erred in finding that the Divisional Court has no jurisdiction to grant judicial review against HOOPP. Finally, Ms. Chartrand argues that Justice Swinton erred in ordering her to pay costs.

[12] For the reasons that follow, we dismiss Ms. Chartrand’s motion.

Issue Estoppel

[13] Justice Swinton correctly stated the test for issue estoppel:

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.

[14] Justice Swinton’s decision not to apply the principle was discretionary. Justice Swinton considered all the relevant factors, including the fact that Justice Gomery was deciding a different issue than she was being asked to decide and Justice Gomery did not engage in any analysis of the Divisional Court’s jurisdiction. Justice Swinton also considered whether it would be just to apply issue estoppel and concluded it would not. She made no error in her analysis on this issue.

Jurisdiction of the Divisional Court to review HOOPP’s decision

[15] Justice Swinton made no error in finding that the Divisional Court does not have jurisdiction to grant judicial review against HOOPP. The question of whether the Divisional Court has jurisdiction to hear an application for judicial review is a question of law.

[16] Justice Swinton recognized that on an application for judicial review, the Divisional Court can grant prerogative relief or it can grant declaratory relief in relation to the exercise of a “statutory power”: Judicial Review Procedure Act, R.S.O. 1990, c. J.2, s. 2 (“JRPA”). Justice Swinton found that neither form of relief is available in this case and it is, therefore, plain and obvious that the Divisional Court has no jurisdiction to grant judicial review against HOOPP.

[17] Justice Swinton was correct to find that HOOPP was not exercising a statutory power as defined in s. 1 of the JRPA so declaratory relief is not available.

[18] Justice Swinton was also correct to find that prerogative relief (such as an order quashing the decision and remitting it back to HOOPP for reconsideration) is not available in this case. Prerogative relief is a public law remedy that is only available in relation to public decision-makers that exercise state authority that is of a sufficiently public character: Highwood Congregation of Jehovah’s Witnesses (Judicial Council) v. Wall, 2018 SCC 26 at para. 14.

[19] Ms. Chartrand filed a study done for the 1980 Royal Commission on the Status of Pensions as part of her materials on this motion. That study was not before Justice Swinton on HOOPP’s motion to quash. Ms. Chartrand did not bring a motion to adduce fresh evidence, nor has she explained why the study was not part of the record before Justice Swinton. As a result, we have not considered that study on this motion.

[20] To decide whether a decision-maker or a decision is subject to public law remedies, the Court must consider the nature of the decision-maker, the relationship between decision-maker and other parts of government or other statutory schemes, the extent to which the decision-maker is controlled by government, the nature of the decision and the suitability of public law remedies: Setia v. Appleby College, 2013 ONCA 753 at para. 34. Justice Swinton properly considered these factors.

[21] Justice Swinton recognized that HOOPP, like many public and private sector pension plans, is governed by the Pension Benefits Act, R.S.O. 1990, c. P.8 with respect to issues of funding, solvency and member entitlement. However, Justice Swinton found that the fact HOOPP (or any other pension plan) is governed by the Pension Benefits Act for some purposes does not make HOOPP a governmental or public institution for the purpose of judicial review.

[22] Ms. Chartrand relied on cases involving judicial review applications against other public sector pension plans: Clifford v. Ontario (Attorney General), 2009 ONCA 670 and Ontario (Minister of Education) v. Ontario Teachers’ Pension Plan Board, 1998 1539 (Ont. C.A.). Justice Swinton noted that the pension plans in those cases were both created by statute. HOOPP was not created by statute. HOOPP was created by agreement between the Ontario Hospital Association, four unions and the original trustees of the plan.

[23] Justice Swinton also considered that some of HOOPP’s members are public sector employees and work in public hospitals. She found that this is not sufficient to make HOOPP a public decision-maker.

[24] Justice Swinton made no error in finding that HOOPP is a private pension plan even though it includes employees in the public health care sector and is, in some respects, governed by the Pension Benefits Act. Justice Swinton was correct that HOOPP’s decision about entitlement to survivor benefits is not subject to judicial review.

[25] Finally, Justice Swinton made no error in awarding costs in this case. A decision to grant costs is highly discretionary. HOOPP sought $28,457 in costs on a partial indemnity basis. Justice Swinton found the amount claimed was not fair or reasonable. Instead, Justice Swinton ordered Ms. Chartrand to pay $11,500 in costs.

Costs on this Appeal

[26] HOOPP seeks $27,400.69 in costs on this motion.

[27] The costs awarded on any matter must be fair and reasonable: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 at para. 26, Rules of Civil Procedure, R.R.O. 1990, Reg 194, Rule 57.01. The legal issues on this motion are the same as the legal issues before Justice Swinton. However, Ms. Chartrand filed two facta on this motion and filed a significant amount of new material that was not before Justice Swinton. Ms. Chartrand’s second factum was 39 pages plus an additional 70 pages of appendices, which include legal argument, links to pension plans and excerpts from Hansard and legislative history. HOOPP was given leave to file a reply factum to respond to the new arguments and materials in Ms. Chartrand’s second factum. Ms. Chartrand’s decision to file a second factum added significantly to the complexity of this case and to the hours HOOPP’s counsel had to spend to respond to this motion. We find that it would be fair and reasonable to order Ms. Chartrand to pay $15,000 in costs on this motion inclusive of taxes and disbursements.

Conclusion

[28] Ms. Chartrand’s motion is dismissed. Ms. Chartrand is required to pay HOOPP $15,000 in costs within 30 days.

[29] I note that HOOPP continues to take the position that it will not oppose Ms. Chartrand commencing a new civil action against HOOPP that is properly framed to determine her claim for survivor benefits under Ms. Tabi’s plan.

Davies J.

Edwards R.S.J.

Lederer J.

Released: June 8, 2022