Gardner v. Canada Border Services Agency, (2009) 358 F.T.R. 86 (FC)

• Judge: Boivin, J.
• Court: Federal Court (Canada)
• Case Date: November 09, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 358 F.T.R. 86 (FC);2009 FC 1156

Gardner v. Can. Border Services Agency (2009), 358 F.T.R. 86 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. NO.024

Sheridan Gardner (applicant) v. Canada Border Services Agency (respondent)

(T-562-09; 2009 FC 1156)

Indexed As: Gardner v. Canada Border Services Agency

Federal Court

Boivin, J.

November 16, 2009.

Summary:

Gardner applied for judicial review of a final level decision denying her grievance challenging the 2007 recovery by the Canada Border Services Agency of salary overpayments made to her in 1998 and 2001. The decision-maker found that the Agency demonstrated a continued intention to collect the debt through four pieces of correspondence between 2001 and 2005, thereby renewing the six year limitation period prescribed by s. 32 of the Crown Liability and Proceedings Act.

The Federal Court granted the application and sent the matter back to the Agency for reconsideration in accordance with the court's decision. The Agency was barred from collecting the debt because six years had lapsed after the right to do so first arose in January 2001, the date of the overpayment. The mere repetition of the existence of the debt by the Agency in the 2001-2005 correspondence, absent a reasonable intention to collect, did not amount to an extension of the limitation period.

Crown - Topic 465

Statutes affecting the Crown - Particular matters - Limitation periods - The issue of whether the Canada Border Services Agency was statute-barred from recovering salary overpayments from its employee required an analysis of the six year limitation period prescribed by s. 32 of the Crown Liability and Proceedings Act (CLPA) - The Federal Court stated that "[s]ection 32 of the CLPA [Crown Liability and Proceedings Act] is a legislative provision of general application which applies unless its application conflicts with another Act of Parliament. Limitation provisions provided in section 32 of the CLPA are therefore applicable to both court and statutory collection procedures. After the expiry of the relevant limitation period, the cause of action is extinguished" - See paragraph 30.

Crown - Topic 465

Statutes affecting the Crown - Particular matters - Limitation periods - The applicant sought judicial review of a final level decision denying her grievance challenging the June 2007 recovery by the Canada Border Services Agency of salary overpayments made to her in 1998 and 2001 - The decision-maker found that the Agency demonstrated a continued intention to collect the debt through four pieces of 2001-2005 correspondence to the applicant, thereby renewing the six year limitation period prescribed by s. 32 of the Crown Liability and Proceedings Act - She had been on leave without pay for medical reasons for about 8.5 years from October 1998 to June 2007 - The Federal Court granted the application and sent the matter back to the decision-maker for reconsideration - The mere repetition of the existence of the debt by the Agency in the correspondence, absent a reasonable intention to collect, did not amount to an extension of the limitation period - The Agency's line of reasoning would result in a continuous and indefinite extension of the limitation period and thus offend its raison d'être - The Agency was barred from collecting the debt because six years had lapsed after the right to do so first arose in January 2001, the date of the overpayment - "It is trite law 'that a cause of action arises for the purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence'" - See paragraphs 30 to 47.

Crown - Topic 4152

Actions by and against Crown in right of Canada - Practice - Time - [See both Crown - Topic 465 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - The applicant, a federal employee, grieved the employer's recovery of a salary overpayment from her paycheque - Her grievance was denied at the final level on the basis that the employer acted in accordance with Crown policy, and acted to extend the time limits provided by s. 32 of the Crown Liability and Proceedings Act - The Federal Court held that correctness was the appropriate standard for reviewing the decision - The test to be applied in determining the question of whether the recovery of the salary overpayment was statute-barred was a question of law arising from the interpretation of the applicable legislation, and the final level grievance decision-maker had no expertise in addressing that legal question - Where jurisprudence had already determined the required degree of deference to be accorded to a particular category of question, as in the present case, there was no need to engage in a "standard of review analysis" - See paragraphs 19 to 29.

Limitation of Actions - Topic 7441

Actions by the Crown - Applicability of limitation period - General - [See both Crown - Topic 465 ].

Cases Noticed:

Hagel et al. v. Canada (Attorney General) (2009), 352 F.T.R. 22; 2009 FC 329, refd to. [para. 19].

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. 21].

Aubert v. Transport Canada (2008), 387 N.R. 140; 387 N.R. 140; 2008 FCA 386, refd to. [para. 21].

Assh v. Canada (Attorney General), [2007] 4 F.C.R. 46; 356 N.R. 263; 2006 FCA 358, refd to. [para. 21].

Blais v. Canada (Attorney General) (2004), 263 F.T.R. 151; 2004 FC 1638, refd to. [para. 22].

Endicott v. Canada (Treasury Board) (2005), 270 F.T.R. 220; 2005 FC 253, refd to. [para. 22].

Cox v. Canada (Attorney General), [2008] F.T.R. Uned. 422; 78 W.C.B.(2d) 196; 2008 FC 596, refd to. [para. 24].

Vaughn v. Canada, [2003] 3 F.C. 645; 306 N.R. 366; 2003 FCA 76, refd to. [para. 24].

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, refd to. [para. 25].

Bullock v. Canada (Attorney General) (2008), 336 F.T.R. 73; 2008 FC 1117, refd to. [para. 27].

MacDonald v. Canada (Attorney General) (2008), 330 F.T.R. 261; 2008 FC 796, refd to. [para. 29].

Markevich v. Minister of National Revenue, [2003] 1 S.C.R. 94; 300 N.R. 321; 2003 SCC 9, refd to. [para. 31].

Gibson v. Canada (2004), 254 F.T.R. 54; 2004 FC 809, revd. on other grounds (2005), 334 N.R. 288; 2005 FCA 180, refd to. [para. 32].

Ross v. Canada Customs and Revenue Agency (2002), 218 F.T.R. 276; 2002 FCT 401, affd. (2002), 301 N.R. 23; 2002 FCA 359, refd to. [para. 36].

MacKinnon v. Minister of National Revenue (2002), 222 F.T.R. 306; 2002 FCT 824, affd. (2003), 303 N.R. 109; 2003 FCA 158, refd to. [para. 41].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109; 31 D.L.R.(4th) 481, refd to. [para. 44].

Michelin Tires (Canada) Ltd. v. Minister of National Revenue (Customs and Excise), [2001] 3 F.C. 552; 271 N.R. 183; 2001 FCA 145, refd to. [para. 44].

Statutes Noticed:

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, sect. 32 [para. 13].

Financial Administration Act, R.S.C. 1985, c. F-11, sect. 155(3) [para. 23].

Public Service Labour Relations Act, S.C. 2003, c. 22, sect. 208, sect. 209 [para. 25]; sect. 214, sect. 233 [para. 19].

Counsel:

Isabelle Roy, for the applicant;

Talitha Nabbali, for the respondent.

Solicitors of Record:

The Professional Institute of the Public Service of Canada, for the applicant;

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

This application was heard at Ottawa, Ontario, on November 9, 2009, by Boivin, J., of the Federal Court, who gave the following judgment and reasons for judgment, dated November 16, 2009.