Clifford v. Ontario (Attorney General) et al., (2008) 237 O.A.C. 277 (DC)

• Judge: Pitt, Molloy and Murray, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 22, 2008
• Jurisdiction: Ontario
• Citations: (2008), 237 O.A.C. 277 (DC)

Clifford v. Ont. (A.G.) (2008), 237 O.A.C. 277 (DC)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. JN.040

Sylvia Clifford (applicant) v. The Attorney General of Ontario, the Ontario Municipal Employees Retirement System, and Bernadette Campbell (respondents)

(155/07)

Indexed As: Clifford v. Ontario (Attorney General) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

Pitt, Molloy and Murray, JJ.

May 29, 2008.

Summary:

The Ontario Municipal Employees Retirement System (OMERS) Appeal Sub-Committee (the Tribunal) determined that Campbell was Clifford's common law spouse at the time of his death and that, as such, she was entitled to his OMERS pension death benefits. The applicant, Clifford's former spouse and the named beneficiary under his pension plan, applied for judicial review of the Tribunal's decision.

The Ontario Divisional Court, Pitt, J., dissenting, allowed the application and quashed the Tribunal's decision. The matter was remitted to the Tribunal for a new hearing before a differently constituted panel.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Administrative Law - Topic 2155 ].

Administrative Law - Topic 2155

Natural justice - Administrative decisions or findings - Effect of failure of tribunal or official to give reasons for decisions (incl. sufficiency of reasons) - The Ontario Municipal Employees Retirement System (OMERS) Appeal Sub-Committee (the Tribunal) determined that Campbell was Clifford's common law spouse at the time of his death and that, as such, she was entitled to his OMERS pension death benefits - The applicant, Clifford's former spouse and the named beneficiary under his pension plan, applied for judicial review - The Ontario Divisional Court allowed the application - Based on the criteria established in New Brunswick v. Dunsmuir (S.C.C.), the standard of review was one of reasonableness - The Dunsmuir decision also noted that reasonableness was not merely a function of outcome, but also referred to "the process of articulating the reasons", and that the concept of reasonableness required "justification, transparency and intelligibility within the decision-making process" - The court concluded that it was incumbent on the Tribunal to articulate its reasons so that the parties would know the basis on which the case was decided and the reviewing court could determine whether the decision was a "reasonable" one - The Tribunal's reasons did not enable that process to be carried out - Accordingly, the decision was not a "reasonable one" and it was also not in accordance with principles of natural justice and procedural fairness - See paragraphs 18 to 31.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Administrative Law - Topic 2617 ].

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - The Ontario Municipal Employees Retirement System (OMERS) Appeal Sub-Committee (the Tribunal) determined that Campbell was Clifford's common law spouse at the time of his death and that, as such, she was entitled to his OMERS pension death benefits - The applicant, Clifford's former spouse and the named beneficiary under his pension plan, applied for judicial review - The applicant argued that the Tribunal breached the rules of natural justice by not ordering full disclosure of documents by Campbell and not ordering oral discovery - The Ontario Divisional Court rejected the argument - The Tribunal required the parties to exchange all relevant documents prior to the hearing - The Tribunal did not order oral discovery of witnesses, but the parties were required to exchange witness statements prior to the hearing - A right to prior oral discovery was not an essential ingredient for a fair hearing - The parties had ample disclosure of the issues and the evidence they could expect to meet - The pre-hearing disclosure process was fair and reasonable - See paragraphs 7 to 12.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Administrative Law - Topic 2155 ].

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - [See Administrative Law - Topic 2155 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Administrative Law - Topic 2155 ].

Master and Servant - Topic 1948.3

Remuneration - Pension or retirement benefits - Regulation - Superintendent or tribunal - Judicial review - [See Administrative Law - Topic 2155 ].

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 2].

Gismondi v. Human Rights Commission (Ont.) et al. (2003), 169 O.A.C. 62 (Div. Ct.), refd to. [para. 2].

Forestall et al. v. Toronto Police Services Board et al. (2007), 228 O.A.C. 202; 2007 CarswellOnt 5073 (Div. Ct.), refd to. [paras. 2, 46].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 3].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 3].

Martin v. Ontario Municipal Employees' Retirement Board, [2002] O.J. No. 2286 (Div. Ct.), refd to. [para. 3].

Metropolitan Toronto Police Services Board et al. v. Ontario Municipal Employees' Retirement Board (1999), 123 O.A.C. 385 (C.A.), refd to. [para. 3].

Ontario Professional Fire Fighters Association et al. v. Municipal Employees' Retirement Board (Ont.) (2006), 215 O.A.C. 200 (Div. Ct.), refd to. [paras. 3, 50].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [paras. 4, 48].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 7].

Howe v. Institute of Chartered Accountants (Ont.) (1994), 74 O.A.C. 26; 19 O.R.(3d) 483; 118 D.L.R.(4th) 129 (C.A.), refd to. [para. 10].

Glen v. Kirby-MacLean Estate, [2006] O.J. No. 520 (Sup. Ct.), refd to. [para. 22].

Megens v. Ontario Racing Commission (2003), 170 O.A.C. 155; 64 O.R.(3d) 142 (Div. Ct.), refd to. [para. 29].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244; 59 O.R.(3d) 364; 212 D.L.R.(4th) 353 (C.A.), refd to. [para. 29].

Kalin v. College of Teachers (Ont.) (2005), 198 O.A.C. 201; 75 O.R.(3d) 523 (Div. Ct.), refd to. [para. 63].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 67].

Counsel:

John Legge, for the applicant;

M. Paul Michell and Daniel Schwarrtz, for the respondent, the Ontario Municipal Employees Retirement System;

Sheila Holmes, for the respondent, Bernadette Campbell.

This application was heard on February 22, 2008, before Pitt, Molloy and Murray, JJ., of the Ontario Divisional Court. The judgment of the Divisional Court was released on May 29, 2008, including the following reasons:

Molloy, J. (Murray, J., concurring) - see paragraphs 1 to 32;

Pitt, J., dissenting - see paragraphs 33 to 72.