Farrell v. Canada (Attorney General) et al., (2010) 360 F.T.R. 163 (FC)

• Judge: Zinn, J.
• Court: Federal Court (Canada)
• Case Date: January 11, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2010), 360 F.T.R. 163 (FC);2010 FC 34

Farrell v. Can. (A.G.) (2010), 360 F.T.R. 163 (FC)

MLB headnote and full text

Temp. Cite: [2010] F.T.R. TBEd. JA.023

Debbie Farrell (applicant) v. Attorney General of Canada and Brenda Murdock (respondents)

(T-100-09; 2010 FC 34)

Indexed As: Farrell v. Canada (Attorney General) et al.

Federal Court

Zinn, J.

January 13, 2010.

Summary:

The deceased was married to Murdock. They separated. The deceased then began a common law relationship with Farrell. When the deceased died, Murdock was granted Canadian Pension Plan (CPP) survivor benefits as the separated spouse. Farrell applied for CPP survivor and children's benefits. Upon reviewing Farrell's application, the Minister of Human Resources and Social Development determined that she was entitled to the benefits. Consequently, the Minister reviewed and then cancelled Murdock's benefits. The Minister disallowed Murdock's reconsideration request. Murdock's appeal to a Review Tribunal was allowed. Farrell sought leave to appeal to the Pension Appeals Board. A member of the Board denied leave to appeal. Farrell applied for judicial review.

The Federal Court allowed the application and remitted the matter to a different member of the Board for redetermination.

Government Programs - Topic 1222

Canada Pension Plan - Entitlement - Survivor's benefits - The deceased was married to Murdock - They separated - The deceased then began a common law relationship with Farrell - When the deceased died, Murdock was granted Canadian Pension Plan (CPP) survivor benefits as the separated spouse - Farrell applied for CPP survivor and children's benefits - Upon reviewing Farrell's application, the Minister of Human Resources and Social Development determined that she was entitled to the benefits - Consequently, the Minister reviewed and then cancelled Murdock's benefits - The Minister disallowed Murdock's reconsideration request - Murdock's appeal to a Review Tribunal was allowed - Farrell sought leave to appeal to the Pension Appeals Board - A member of the Board denied leave to appeal - Farrell applied for judicial review, asserting that the member erred by applying the wrong legal test by elevating the legal test to a standard higher than that of an arguable case - The Federal Court rejected the assertion - In stating that Farrell did not have "an arguable case (except in a superficial way)", the member did not elevate or replace the arguable case standard - He was simply stating that it was plain and obvious to him, based on the evidence, that Farrell would have no reasonable chance of succeeding - The member applied the correct legal test - See paragraphs 29 to 35.

Government Programs - Topic 1222

Canada Pension Plan - Entitlement - Survivor's benefits - The deceased was married to Murdock - They separated - The deceased then began a common law relationship with Farrell - When the deceased died, Murdock was granted Canadian Pension Plan (CPP) survivor benefits as the separated spouse - Farrell applied for CPP survivor and children's benefits - Upon reviewing Farrell's application, the Minister of Human Resources and Social Development determined that she was entitled to the benefits - Consequently, the Minister reviewed and then cancelled Murdock's benefits - The Minister disallowed Murdock's reconsideration request - Murdock's appeal to a Review Tribunal was allowed - Farrell sought leave to appeal to the Pension Appeals Board - A member of the Board denied leave to appeal - Farrell applied for judicial review - The Federal Court allowed the application - The member concluded that Farrell did not have an arguable case because the Review Tribunal "carefully analyzed the evidence before it which [could] reasonably lead only to the conclusion that Brenda Murdock is entitled to the survivor benefits" - His reasons were short, and the justification of a finding of no arguable case rested solely on his conclusion that the evidence could not reasonably lead to the conclusion that Farrell was in a common law relationship with the deceased - Given the plethora of conflicting evidence, the member's conclusion was insufficiently justified, and was therefore unreasonable - Further, there were issues with the Review Tribunal's treatment of the evidence and its negative credibility findings - The court remitted the matter to a different member of the Board for redetermination - See paragraphs 36 to 50.

Cases Noticed:

Betts v. Shannon, 2001 LNCPEN 4 (P.A.B.), refd to. [para. 15].

Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114 (T.D.), refd to. [para. 26].

McDonald v. Canada (Minister of Human Resources and Skills Development), [2009] F.T.R. Uned. 655; 2009 FC 1074, refd to. [para. 27].

Upshall v. Canada (Attorney General) (2009), 394 N.R. 200; 2009 FCA 284, refd to. [para. 28].

Canada (Attorney General) v. Pelland (2008), 336 F.T.R. 153; 2008 FC 1164, refd to. [para. 31].

Cardoza Quinteros v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 456; 2008 FC 643, refd to. [para. 33].

Litke v. Canada (Minister of Human Resources and Social Development) (2008), 384 N.R. 199; 2008 FCA 366, refd to. [para. 40].

Roy v. Canada (Minister of Human Resources and Skills Development), [2009] F.T.R. Uned. 334; 2009 FC 312, refd to. [para. 40].

Kerth v. Canada (Minister of Human Resources Development) (1999), 173 F.T.R. 102 (T.D.), refd to. [para. 40].

Counsel:

Charles R. Davidson (appeared at hearing) and Debbie Farrell (self-represented);

Tania Nolet, for the respondent, The Attorney General of Canada;

No one appearing, for the respondent, Brenda Murdock.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent, The Attorney General of Canada.

This application was heard on January 11, 2010, at Toronto, Ontario, by Zinn, J., of the Federal Court, who delivered the following judgment on January 13, 2010.