PENSIONS |
Canada (Minister of Human Resources Development) v. Heaman
T-290-03
2004 FC 1155, Snider J.
19/8/04
6 pp.
Respondent is retired federal public servant eligible for Old Age Security Benefits--In 2000, 6 years after retirement, received one-time pay equity payment--Minister took position this was retroactive salary adjustment to be taken into account in calculating Guaranteed Income Supplement--This reduced respondent's Supplement by $100 per month--Review Tribunal allowed her appeal--Minister now seeks judicial review--Decisive issue herein: did Tribunal act without jurisdiction in entertaining appeal instead of referring it to Tax Court of Canada (T.C.C.)?--Application raised question of law--Only one of three on Tribunal must be member of bar of a province so possesses no expertise superior to that of Court--Correctness is applicable review standard--S. 28(2) of Old Age Security Act (OASA) provides that if a ground of appeal to Review Tribunal is Minister's decision re: income or income from particular source incorrectly made, appeal on that ground shall be referred to T.C.C.--Use of "shall" means Tribunal's jurisdiction not discretionary--"[I]ncome" defined under OASA, s. 2 as person's income for calendar year, computed in accordance with Income Tax Act--By notice of reassessment, Canada Customs and Revenue Agency treated pay equity amount received in 2000 as income earned that year for Income Tax Act purposes--So s. 28(2) was engaged --Review Tribunal exceeded jurisdiction, its decision must be quashed--Court troubled by Minister's failure to object at Review Tribunal hearing--Respondent put to considerable inconvenience, awarded $500 costs--Old Age Security Act, R.S.C., 1985, c. O-9, ss. 2 "income", 28(2).