Court File and Parties

COURT FILE NO.: CV-16-558269 DATE: 20170512 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Reva Landau (Applicant) AND: Attorney General of Canada (Respondent/Moving Party)

BEFORE: Justice Kristjanson

COUNSEL: R. Lee, for the Respondent/Moving Party R. Landau, In Person

HEARD: May 10, 2017

Endorsement

[1] The Applicant Ms. Landau is a single woman currently receiving a retirement pension under the Canada Pension Plan. She has brought an application seeking a declaration that the survivor pension provisions of the Canada Pension Plan, R.S.C. 1985, c. C-8 (“CPP”) violate section 15(1) of the Canadian Charter of Rights and Freedoms on the ground of marital status and cannot be justified under section 1 of the Charter. She seeks to strike the CPP provisions establishing survivor benefits or to amend the CPP to provide an enhanced benefit to unmarried persons sufficient to offset the benefits a survivor of a CPP contributor would receive.

[2] I find that the Applicant’s core issue—whether she is entitled to an enhanced benefit by virtue of discrimination under s. 15(1) of the Charter on the grounds of marital status—falls squarely within the jurisdiction of the Social Security Tribunal. The Tribunal is an adjudicative administrative decision-maker with jurisdiction to determine questions of law and fact relating to CPP benefits and amounts payable, including the constitutional validity of CPP provisions. The Social Security Tribunal has the power to consider the constitutional issues raised in this Application and provide an appropriate remedy even though it does not have jurisdiction to issue a formal declaration of invalidity.

[3] The courts have repeatedly held that specialized tribunals like the Social Security Tribunal should decide all matters, including constitutional questions, whose essential character falls within the tribunal's specialized statutory jurisdiction. In general, parties should not bypass a statutory process by seeking a declaratory remedy from the superior courts before they have exhausted their administrative remedies, even where the constitutional validity of legislation is challenged.

Background Facts

[4] Ms. Landau is a never-married woman, not living in a common-law relationship, who is currently receiving a CPP retirement pension. Ms. Landau commenced an application in this Court seeking a declaration that the current survivor pension provisions of the CPP violate s. 15(1) of the Charter on the ground of marital status.

[5] The Application also asked for a declaration that either: (a) all references to the survivor’s pension in the CPP be declared void, or (b) any references to giving a survivor’s pension before the survivor has turned 65 be declared void and that the CPP be amended so a CPP contributor who has not been married and is not in a common-law relationship when they begin receiving their CPP retirement pension receives an enhanced amount sufficient to offset the benefits a survivor would receive on the death of the CPP contributor if the CPP contributor were married, separated, or in a common-law relationship.

[6] Ms. Landau relies on the affidavit evidence of actuary Kelley McKeating that the estimated present value of what Ms. Landau’s estate would receive if she were married at the time of her death was $61,201 to $115,212 more than the amount her estate would receive if never-married and not in a common-law relationship.

[7] Kelley McKeating also noted that for “non-subsidized” spousal benefits in the private sector, a retiree who wanted an eligible spouse to receive a 60% survivor’s benefit would receive only, for example, $876 a month at the time of retirement compared to the $1,000 month a retiree without an eligible spouse would receive.

[8] The Attorney General has brought this motion to strike the Application under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01(1) and (3) and 25.11 (c) on the grounds that the Social Security Tribunal is the appropriate forum and that Ms. Landau lacks standing to bring the Application.

Overview of CPP Legislative Scheme

Legislative purposes of the CPP Act

[9] The CPP is a federal compulsory social insurance scheme “enacted in 1965 in order to provide contributors and their families with reasonable minimum levels of income upon the retirement, disability or death of the wage earner”: Law v. Canada (Minister of Employment & Immigration, [1999] 1 S.C.R. 497, at para. 8. The legislative purpose of the CPP is to ameliorate the conditions of particular groups: SM-R v. Canada, 2013 FCA 158, 285 C.R.R. (2d) 348, at para. 56. In particular, it is aimed at ameliorating conditions of those “who experience a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent”: Granovsky v. Canada, 2000 SCC 28, [2000] 1 S.C.R. 703, at para. 9.

[10] The CPP system has detailed eligibility and qualification rules. Each of the six types of CPP benefits relates to a specific contingency or life event of a contributor or his or her dependents. For example, the CPP retirement pension provides a reasonable minimum level of income to a wage-earner upon reaching retirement age, whereas the CPP survivor’s pension ameliorates the conditions of an eligible person who experiences a loss of household income owing to the death of a wage-earning spouse or common-law partner. Other types of benefits provide financial security to contributors who become disabled and their dependents, if any.

CPP survivor’s pension

[11] This Application involves a challenge to the CPP survivor’s pension, which is a monthly benefit paid to a surviving spouse or common-law partner whose deceased partner has made sufficient contributions to the CPP and who meets certain eligibility criteria, namely an age threshold, responsibility for dependent children, or disability: CPP, s. 44. The purpose of the survivor’s pension is to deal with the financial dependency of a couple who, at the date of the death of one of them, are in a relationship with mutual legal rights and obligations and to ensure a basic level of long-term financial security for those who lose a spouse: Law v. Canada, at paras. 102-103.

[12] If, at the time of her death, the Applicant is not married and not in a common-law relationship, there would not be a person who might meet the eligibility requirements to receive a CPP survivor’s pension by virtue of being her survivor.

Statutory process for determining eligibility and pension amounts

[13] Parliament has enacted a comprehensive, national procedure governing the determination of eligibility for CPP benefits and pension amounts. This includes the right to appeal ministerial administrative decisions to the Social Security Tribunal, an independent adjudicative tribunal with expertise and jurisdiction to consider the constitutional validity of the CPP legislation, as well as subsequent recourse to the Federal Courts.

[14] Section 60 of the CPP provides that every application for a benefit must be made to the Minister of Employment and Social Development, who either approves the payment of the benefit and determines the amount payable or determines that no benefit is payable. An applicant who is “dissatisfied with any decision made under section 60” may ask the Minister for a reconsideration pursuant to s. 82 of the CPP. The applicant may appeal the Minister’s reconsideration decision to the Social Security Tribunal: Department of Employment and Social Development Act, S.C. 2005, c. 34, ss. 52(1), 55 and 56.

[15] Parliament has, by statute, conferred upon the Social Security Tribunal the jurisdiction to consider questions of law. In cases relating to the CPP, it has the mandate to decide a number of enumerated issues including “questions of law or fact as to whether any benefit is payable to a person or its amount”: Department of Employment and Social Development Act, s. 64(2). The Social Security Tribunal Regulations, SOR/2013-60, s. 20(1) provide that a party may raise an issue before the Tribunal concerning “the constitutional validity, applicability or operability of any provision of the Canada Pension Plan” but must give notice to the Attorney General of Canada and the attorneys general of every province.

[16] The Federal Courts Act, R.S.C. 1985, c. F-7, provides that the Federal Court of Appeal has jurisdiction to hear applications for judicial review of substantive decisions of the Social Security Tribunal. Other decisions of the Social Security Tribunal, for example procedural matters such as extensions of time, are reviewable in the Federal Court.

The Social Security Tribunal is the Appropriate Forum

[17] The Attorney General submits that this Application should be struck because this Court is not the appropriate forum to adjudicate the Applicant’s claim that the CPP survivor’s pension violates s. 15 of the Charter on the grounds of marital status and that she should be entitled to “receive an enhanced amount” to her retirement pension. I find that the Applicant’s core issue—whether she is entitled to an enhanced benefit by virtue of discrimination on the grounds of marital status—falls squarely within the jurisdiction of the Tribunal which is an administrative decision-maker dealing with complaints about CPP benefits and amounts payable, including complaints grounded upon the alleged constitutional invalidity of the enabling legislation. The Applicant must first exhaust her remedies under the statutory process before turning to the courts.

[18] I find that the Social Security Tribunal has the power to consider the constitutional issues raised in this Application, namely the constitutional validity of the CPP, which is one of its home statutes. The Social Security Tribunal’s relationship with the CPP Act meets the two-part test established by the Supreme Court in R v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, at paras. 63-77, to determine whether it is within an administrative tribunal's jurisdiction to subject a legislative provision to Charter scrutiny.

[19] First, the Tribunal’s enabling statute explicitly confers jurisdiction upon it to decide “questions of law or fact as to whether any benefit is payable [under the CPP] to a person or its amount”: Department of Employment and Social Development Act, s. 64(2). Therefore, the Tribunal presumptively has the power to determine the constitutional validity of the provisions of the CPP concerning which benefits, if any, are payable to a person and the amounts payable. Second, there is no legislative intention to exclude the Charter from the Tribunal’s jurisdiction. On the contrary, its jurisdiction to consider the constitutional validity of the provisions of the CPP is explicitly contemplated. The Social Security Tribunal Regulations, s. 20(1) provide that a party may raise an issue before the Tribunal concerning “the constitutional validity, applicability or operability of any provision of the Canada Pension Plan”.

[20] The Supreme Court has repeatedly held that specialized tribunals, like the Social Security Tribunal, should decide all matters, including constitutional questions, whose essential character falls within the tribunal's specialized statutory jurisdiction: Conway, at paras. 30 and 79. While judicial review is available afterwards, parties must not bypass a statutory process by obtaining a remedy from the courts before they have exhausted their administrative remedies, even where the constitutional validity of legislation is challenged: Dioguardi Tax Law v. Law Society of Upper Canada, 2016 ONCA 531, 133 O.R. (3d) 151, at para. 7.

[21] There are good reasons to allow the statutory process to run its course, which reflect Parliament’s decision to give initial decision-making authority in a complex area to an administrative decision-maker and the important role of administrative decision-makers in our system of justice.

[22] First, specialized tribunals are in the best position to hear and decide constitutional cases related to their statutory mandates because of their expertise. The scheme governing CPP benefits is complex and the Tribunal applies and interprets the legislation and regulations on a daily basis. The experience of working with the CPP scheme gives the Tribunal a deep understanding of how the provisions practically affect a broad range of individuals in different situations and how the various parts of the program interact and work together to achieve the legislative objectives. As the Supreme Court held in Nova Scotia v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 30: “Charter disputes do not take place in a vacuum. They require a thorough understanding of the objectives of the legislative scheme being challenged, as well as of the practical constraints it faces and the consequences of proposed constitutional remedies.”

[23] Second, permitting the Tribunal to conduct the initial adjudication of the dispute ensures that a court on judicial review or appeal has the benefit of the Tribunal’s fact-finding expertise as well as its decision on the constitutional issues. As the Supreme Court has noted, “the factual findings and record compiled by an administrative tribunal, as well as its informed and expert view of the various issues raised by a constitutional challenge, will often be invaluable to a reviewing court”: Martin, at para. 30. It is also respectful of Parliament’s decision to assign initial decision-making authority to the administrative tribunal with supervisory jurisdiction in the courts by way of judicial review, an essential aspect of rule of law and parliamentary supremacy.

[24] Third, this approach also respects the legislative intention that individuals can have all aspects of their matters concerning the CPP dealt with in one forum. It has the practical benefit of avoiding the bifurcation of proceedings or the need for parallel proceedings, with constitutional aspects decided in one forum and non-constitutional aspects decided in another, assuming they can even be cleanly divided.

[25] Ms. Landau submits that this Court clearly has jurisdiction to grant the declaratory relief sought and the Tribunal does not have jurisdiction to issue declaratory relief. The fact that a statutory tribunal cannot issue a formal, general declaration of invalidity is not a reason to bypass the statutory administrative process. As Justice Belobaba explained in Dioguardi Tax Law v. The Law Society of Upper Canada, 2015 ONSC 3430, 133 O.R. (3d) 151 at para. 11 (Ont. S.C.), affirmed 2016 ONCA 531, dealing with an application brought to Superior Court in respect of a matter within the jurisdiction of the Law Society Tribunal:

The only remedy that cannot be granted by the Law Society Tribunal is a formal declaration of invalidity under s. 52 of the Constitution Act. However, as the Supreme Court made clear in Okwuobi, the fact that the administrative tribunal cannot issue a formal declaration of invalidity "is not ... a reason to bypass the exclusive jurisdiction of the Tribunal." The expert administrative tribunal should hear the constitutional challenge and make its ruling. If the applicant loses, it can appeal or seek judicial review. And it is "at this stage of the proceedings" i.e. when the matter makes its way to the court, that a formal declaration of invalidity can be sought. [Footnotes omitted.]

[26] Previous s. 15 Charter challenges to the CPP have followed the statutory process, commencing with an application to the Minister, then an appeal to the Social Security Tribunal (or its predecessors), judicial review in the Federal Court of Appeal, and further appeal to the Supreme Court of Canada:

(a) Law v. Canada: challenge to the survivor’s pension provisions, alleging discrimination on the basis of age; (b) Hodge v. Canada, 2004 SCC 65, [2004] 3 S.C.R. 357: challenge to the definition of “spouse” as applied to the survivor’s pension, alleging discrimination on the basis of marital status:; and (c) Granovsky v. Canada: challenge to the disability pension provisions, alleging discrimination on the basis of disability.

[27] Further, I note that this Court does not have the ability to compel the Tribunal or the Minister to award the Applicant an enhanced pension. Decisions with respect to the amounts payable are reserved to the Minister and the Tribunal. Pursuant to the Federal Courts Act, the Federal Courts have exclusive original jurisdiction to issue a writ of mandamus or to grant declaratory relief against any federal board, commission, or other tribunal.

[28] Ms. Landau submits that the application forms provided by the CPP are only for pensions and benefits currently provided by the CPP in s. 44, do not include an “enhanced” retirement pension, and there is no place on the prescribed forms for an applicant to apply for an “enhanced” retirement benefit on Charter grounds. The Attorney General concedes that in a case such as this, where the Applicant wishes to challenge legislation and claim an additional benefit, the application to the Minister for reconsideration and payment of an enhanced benefit may be made not in the normal form but as a special application supported by materials similar to those supporting this Application. I expect that the Minister will consider the application for reconsideration regardless of the form of the materials in light of the Attorney General’s argument that the Minister and the Tribunal are the appropriate forum for this application.

[29] Ms. Landau also submits that the retirement pension, and the other pensions, must be calculated according to the rules laid out in ss. 45 and 46 of the CPP and the Tribunal has no power to vary them: C.W. v. Minister of Employment and Social Development, 2015 SSTGDIS 101. This decision, and others relied on by Ms. Landau, did not deal with constitutional challenges to the legislation. If the Tribunal were to find that the CPP and Rules violated the Charter, the Tribunal would have jurisdiction to either refuse to apply unconstitutional provisions, or craft an order that would reflect the requirements of the Charter, although it could not grant a formal declaration of invalidity. As such, I give no weight to this ground.

[30] The Attorney General seeks to strike this Application on the grounds that the Minister and Tribunal are the appropriate forum. I agree that the Tribunal should determine this issue. I am concerned, however, with the limitation period set out in ss. 81(1) and 82 of the CPP. A reconsideration application is to be made within 90 days, subject to the Minister’s discretion to extend that time. If the Minster were to decline to exercise his discretion to hear Ms. Landau’s application on the grounds of the 90-day limitation period, then Ms. Landau should be able to apply to this Court, as she would be foreclosed from arguing the merits on a preliminary time-limit ground which would not apply to her Application. As a result, I direct that this Application be stayed, and do not strike the Application.

[31] It is not clear whether the Minister has jurisdiction to decide questions of law, including Charter and constitutional questions. Even if the Minister does not have jurisdiction, it is clear that having raised the issue with the Minister, Ms. Landau would be able to raise her Charter arguments before the Tribunal. The Attorney General concedes that if the Minister does not have Charter jurisdiction, the issue could be raised before the Tribunal, particularly if it is raised on Ms. Landau’s reconsideration application. The Tribunal has notice provisions specific to cases where the constitutional validity of any provision of the CPP is to be raised before the Tribunal. Once the Tribunal is satisfied that the notice provision is complied with, the Tribunal will generally invite parties to provide a full record, including their evidence, submissions, and authorities. If there is an insufficient factual foundation in the Charter submissions, then the Tribunal will generally order the party to file amended submissions: M.S. v. Minister of Employment and Social Development, 2017 SSTADIS 5, at para. 12. There will thus be a full opportunity for Ms. Landau to argue these issues on an appropriate evidentiary basis before the Tribunal.

Standing

[32] There was argument as to whether Ms. Landau had private interest or public interest standing to proceed with her Application. The Attorney General agrees, however, that Ms. Landau has private interest standing to apply to the Minister, and the Tribunal, in respect of her claim to “receive an enhanced amount” to her retirement pension on the grounds of s. 15 of the Charter. Since I have stayed the Application pending a determination by the Tribunal, and any subsequent rulings by the Federal Courts, I do not have to decide this issue today and decline to do so.

Conclusion

[33] This Application is stayed to allow Ms. Landau to raise her s. 15 Charter arguments challenging the CPP survivor pension provisions and seeking an enhanced retirement benefit before the Minister and the Tribunal. The Tribunal is the appropriate forum for raising these issues. Any judicial reviews or appeals should be pursued in the Federal Courts, pursuant to the legislation. It is only if the Minister refuses to exercise his discretion to extend time to hear Ms. Landau’s application on the merits pursuant to s. 81 of the CPP that Ms. Landau may bring this Application back, on 30 days’ notice to the Attorney General.

Justice Freya Kristjanson Date: May 12, 2017