PENSIONS
Judicial review of a decision of the Minister of Human Resources Development finding that no administrative error was made or erroneous opinion given by an official that would have caused the applicant to lose her right to a division of pensionable earnings—The applicant was in a common‑law relationship from 1977 to 1991—During this period, the applicant and her spouse made pension contributions under An Act respecting the Québec Pension Plan (AARQPP), but not under the Canada Pension Plan (CPP)—The applicant alleges that in 1992 she indicated her intention of applying to the Régie des rentes du Québec (Régie) for the partition of earnings between former spouses—The application was turned down by the Régie because the legal proceedings concerning her separation had not been completed—In 1998, her second application was rejected because it was incomplete—In 2002, the applicant submitted an application for the division of earnings between former spouses under the CPP—This application was rejected on the ground that the applicant had not filed it within four years following the day on which she stopped living common law—On appeal, the applicant alleged that her application to the CPP should have been accepted on the basis of erroneous advice given by the Régie, that is, that she wait until the legal proceedings were completed before submitting her application—The appeal was dismissed and the applicant applied for judicial review of this decision—The CPP’s jurisdiction was considered on judicial review, and although jurisdiction is a question of law, a pragmatic and functional analysis revealed that the applicable standard of review was patent unreasonableness—The applicant did not lose her right to the partition of pensionable earnings as a result of the Régie’s alleged error, since it was only in 1999 that the partition of earnings between former common‑law spouses was first recognized under the AARQPP—Her application would have been rejected in 1992 and in 1998—Although the respondent decided to reject the applicant’s application because it was statute barred, the respondent did not have jurisdiction because the earnings could not be divided under the CPP—However, the lack of jurisdiction did not cause prejudice to the applicant, since she was not entitled to receive a pension—The CPP gives the respondent the discretion to take remedial action to place a person in the position that the person would be in, if the Minister is satisfied that, as a result of erroneous advice or administrative error, that person has been denied a division of earnings—However, in this case, this discretionary power was not applicable, since the alleged administrative error or erroneous advice was made or given by the Régie, not the respondent—Finally, the Federal Court had no jurisdiction, since the contributions in question had been made to a provincial plan and, under the CPP, earnings accumulated by the applicant and her common‑law spouse should have been shared under the AARQPP, which is under provincial jurisdiction—Application dismissed—An Act respecting the Québec Pension Plan, R.S.Q., c. R‑9—Canada Pension Plan, R.S.C., 1985, c. C‑8.
Paquette v. Canada (Attorney General) (T‑1073‑04, 2005 FC 1505, Teitelbaum J., order dated 7/11/05, 21 pp.)