Duncan v. Canada (Attorney General), (2013) 431 F.T.R. 24 (FC)

• Judge: de Montigny, J.
• Court: Federal Court (Canada)
• Case Date: October 30, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 431 F.T.R. 24 (FC);2013 FC 319

Duncan v. Can. (A.G.) (2013), 431 F.T.R. 24 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. NO.002

Roger J. Duncan (applicant) v. The Attorney General of Canada (respondent)

(T-453-12; 2013 FC 319; 2013 CF 319)

Indexed As: Duncan v. Canada (Attorney General)

Federal Court

de Montigny, J.

March 27, 2013.

Summary:

The Office of the Commissioner of Review Tribunals found that Duncan was ineligible for an Old Age Security pension, whether full or partial, because he did not meet the residency requirements. Duncan applied for judicial review.

The Federal Court allowed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Government Programs - Topic 1624 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Evidence - Topic 3630 ].

Evidence - Topic 3364

Documentary evidence - Judicial or administrative proceedings - Settlement documents - [See Evidence - Topic 3630 ].

Evidence - Topic 3630

Documentary evidence - Private documents - Letters or documents written without prejudice - Admissibility in subsequent proceedings - The Office of the Commissioner of Review Tribunals (OCRT) found that the applicant was ineligible for an old age security pension, whether full or partial, because he did not meet the residency requirements in the Old Age Security Act and the Regulations - The applicant applied for judicial review, arguing that he was denied procedural fairness because the OCRT refused to consider, as being irrelevant, without prejudice settlement documents, wherein the Minister offered the applicant a partial pension - The Federal Court rejected the applicant's argument - Privilege attached to the settlement negotiations - The inclusion of the settlement documents in the hearing file by the OCRT could not be interpreted as a waiver of privilege by the Minister - The applicant was not prevented from making full submissions - See paragraphs 30 to 37.

Government Programs - Topic 1624

Old age pensions - Application - Eligibility - Residency requirements - The Office of the Commissioner of Review Tribunals (OCRT) found that the applicant did not meet the residency requirements for an old age security (OAS) pension - The applicant applied for judicial review, claiming that he originally filled out his application in such a manner as to preserve his non-resident income tax status - The Federal Court allowed the application - While the OCRT cited the test to be applied, the reasons were insufficient - It was not possible for the court to tell whether the OCRT considered the whole context of the applicant or determined the issue based solely on his intentions - Despite its finding, the court opined that likely the applicant could not have it both ways and, given the similarities in the tests for residency under the income tax and OAS legislation, in the event that he were successful in establishing residency before the OCRT, he might put at risk what he had described as his more valuable tax position - See paragraphs 38 to 59.

Government Programs - Topic 1650

Old age pensions - Entitlement - Appeals and judicial review (incl. standard of review) - The Office of the Commissioner of Review Tribunals found that the applicant was ineligible for an old age security pension, whether full or partial, because he did not meet the residency requirements in the Old Age Security Act and the Regulations - The applicant applied for judicial review, raising issues of procedural fairness and whether the Tribunal's decision was reasonable - The Federal Court discussed the applicable standard of review - See paragraphs 28 and 29.

Cases Noticed:

Canada (Minister of Human Resources Development) v. Ding (2005), 268 F.T.R. 111; 2005 FC 76, refd to. [para. 28].

Canada (Minister of Human Resources Development) v. Chhabu (2005), 280 F.T.R. 296; 2005 FC 1277, refd to. [para. 28].

Kiefer v. Canada (Attorney General) (2008), 330 F.T.R. 242; 2008 FC 786, refd to. [para. 28].

De Bustamante v. Canada (Attorney General), [2008] F.T.R. Uned. 784; 2008 FC 1111, refd to. [para. 28].

Singer v. Canada (Attorney General) (2010), 370 F.T.R. 121; 2010 FC 607, refd to. [para. 28].

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; 2008 SCC 9, refd to. [para. 28].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 29].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 29].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 424 N.R. 220; 2011 SCC 62, refd to. [para. 29].

Thomson v. Minister of National Revenue, [1946] S.C.R. 209, refd to. [para. 43].

Minister of National Revenue v. Reeder, 75 D.T.C. 5160 (F.C.T.D.), refd to. [para. 43].

Vegh v. Minister of National Revenue, 2012 TCC 95, refd to. [para. 45].

Schujahn v Canada (Minister of National Revenue), [1962] Ex. C.R. 328, refd to. [para. 50].

Statutes Noticed:

Income Tax Act, Interpretation Bulletins, Interpretation Bulletin IT-221R3, para. 2 [para. 44].

Interpretation Bulletins - see Income Tax Act, Interpretation Bulletins.

Old Age Security Act, R.S.C. 1985, c. O-9, sect. 3(1)(b), sect. 3(1)(c) [para. 24]; sect. 3(2) [para. 25].

Old Age Security Act Regulations (Can.), Old Age Security Regulations, C.R.C., c. 1246, sect. 21(1) [para. 27]; sect. 21(4) [para. 26].

Authors and Works Noticed:

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (3rd Ed. 2009), No. 14.316 [para. 31].

Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1972), No. 0161 [para. 31].

Counsel:

Roger J. Duncan, on his own behalf, for the applicant;

Martin Kreuser, for the respondent.

Solicitors of Record:

Roger J. Duncan, Vancouver, British Columbia, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the respondent.

This application was heard in Vancouver, British Columbia, on October 30, 2012, before de Montigny, J., of the Federal Court, who delivered the following decision in Ottawa, Ontario, on March 27, 2013.