McLaughlin v. Canada (Attorney General), (2012) 408 F.T.R. 286 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: May 01, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2012), 408 F.T.R. 286 (FC);2012 FC 556

McLaughlin v. Can. (A.G.) (2012), 408 F.T.R. 286 (FC)

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[French language version follows English language version]

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

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Temp. Cite: [2012] F.T.R. TBEd. JN.073

Donna McLaughlin (applicant) v. Attorney General of Canada (respondent)

(T-1419-11; 2012 FC 556; 2012 CF 556)

Indexed As: McLaughlin v. Canada (Attorney General)

Federal Court

Gleason, J.

May 9, 2012.

Summary:

McLaughlin died. He was married to the applicant, but had cohabitated for more than a year with Ms. Gunderman. Both the applicant and Ms. Gunderman applied for Canada Pension Plan (CPP) survivor benefits. The Department of Human Resources and Skills Development Canada determined that Ms. Gunderman was entitled to the survivor benefits because she met the definition of a common-law partner in s. 2(1) of the CPP. The Review Tribunal and the Pension Appeals Board dismissed the applicant's appeals. The applicant applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - McLaughlin died - He was married to the applicant, but had cohabitated for more than a year with Ms. Gunderman - Both the applicant and Ms. Gunderman applied for Canada Pension Plan (CPP) survivor benefits - The Department of Human Resources and Skills Development Canada determined that Ms. Gunderman was entitled to the survivor benefits because she met the definition of a common-law partner in s. 2(1) of the CPP - The Review Tribunal and the Pension Appeals Board (PAB) dismissed the applicant's appeals - The applicant applied for judicial review - The respondent asserted that large portions of the applicant's affidavit should be struck as an improper attempt to place evidence before the court that was not before the PAB - The Federal Court struck paragraphs 13 through 15 of the applicant's affidavit, as well as affidavits A and B - Most of the facts contained in the applicant's affidavit were also before the PAB (albeit in a less eloquent form) through the applicant's written submissions - While the affidavit was prepared with the assistance of counsel and was expressed in clearer and more convincing terms than the applicant's written submissions to the PAB, the facts in these paragraphs were all before the PAB and, accordingly, could be restated by the applicant in her affidavit - However, the facts (and exhibits) referenced in paragraphs 13 through 15 of the applicant's affidavit were not before the PAB and did not fall into one of the recognized exceptions regarding the admission of new evidence on a judicial review application - See paragraphs 8 to 10.

Government Programs - Topic 1222

Canada Pension Plan - Entitlement - Survivor's benefits - McLaughlin died - He was married to the applicant, but had cohabitated for more than a year with Ms. Gunderman - Both the applicant and Ms. Gunderman applied for Canada Pension Plan (CPP) survivor benefits - The Department of Human Resources and Skills Development Canada determined that Ms. Gunderman was entitled to the survivor benefits because she met the definition of a common-law partner in s. 2(1) of the CPP - The Review Tribunal and the Pension Appeals Board (PAB) dismissed the applicant's appeals - The applicant applied for judicial review, asserting that she possessed an arguable case that Ms. Gunderman did not meet the definition of a "common-law partner", within the meaning of the CPP, because Ms. Gunderman in effect perpetrated a fraud upon McLaughlin - The applicant asserted that the PAB was required to apply a multi-factored analysis in determining whether Ms. Gunderman met the definition of a "common-law partner", and that one of the factors it ought to have considered was whether she had committed breaches of trust or engaged in other wrongful conduct to the detriment of McLaughlin - The Federal Court dismissed the application - "[T]he applicant is requesting that a decision-maker evaluate the quality of the relationship between two individuals to determine whether or not the relationship should fall within the definition of a 'common-law partnership'. However, the case law interpreting the definition of a 'common-law partner' in the CPP (or in family law jurisprudence on the similar concept of 'common-law relationship') does not contemplate an assessment of the type the applicant urges. Indeed, this type of assessment would not be an appropriate inquiry for an administrative adjudicator or a court and, accordingly, the applicable tests all involve consideration of questions of fact and intent to ascertain whether the parties live in a conjugal relationship that is similar to marriage." - See paragraphs 12 to 17.

Cases Noticed:

Canada (Minister of Social Development) v Pratt, 2006 CP 22323; 2006 LNCPEN 5 (P.A.B.), refd to. [para. 5].

Ochapowace First Nation et al. v. Canada (Attorney General) et al. (2007), 316 F.T.R. 19; 2007 FC 920, refd to. [para. 8].

Bekker v. Minister of National Revenue (2004), 323 N.R. 195; 2004 FCA 186, refd to. [para. 8].

594872 Ontario Inc v Her Majesty the Queen (No 2), [1992] 1 C.T.C. 344, 92 DTC 6298, refd to. [para. 9].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 11].

Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114 (T.D.), refd to. [para. 12].

Farrell v. Canada (Attorney General) et al. (2010), 360 F.T.R. 163; 2010 FC 34, refd to. [para. 12].

Truehope Nutritional Support Ltd. et al. v. Canada (Attorney General) et al. (2010), 360 F.T.R. 8; 2010 FC 63, refd to. [para. 12].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 16].

Counsel:

Paul Jonathan Saguil, for the applicant;

Carole Vary, for the respondent.

Solicitors of Record:

Stockwoods LLP, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on May 1, 2012, by Gleason, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on May 9, 2012.