Pawar et al. v. Canada, (1997) 132 F.T.R. 44 (TD)

• Court: Federal Court (Canada)
• Case Date: April 28, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 132 F.T.R. 44 (TD)

Pawar v. Can. (1997), 132 F.T.R. 44 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. JN.043

Harbans Singh Pawar, for himself and as representative of all those also improperly denied benefits (plaintiff) v. Her Majesty the Queen (defendant)

(T-1407-96)

Indexed As: Pawar et al. v. Canada

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

May 26, 1997.

Summary:

Pawar was denied an old age security pension because he had not resided in Canada for 10 years as required by s. 3 of the Old Age Security Act (OASA). Pawar, on behalf of himself and others who did not meet the residency requirement, sought a declaration pursuant to s. 52 of the Constitution Act, 1982, that s. 3 of the OASA was invalid and damages under s. 24(1) of the Charter. Pawar sought to certify the proceeding as a class action and to appoint him as the representative plaintiff.

A Prothonotary of the Federal Court of Canada, Trial Division, ruled that the portion of the action which sought a declaration was certified and could proceed as a class action with Pawar as the representative plaintiff.

Editor's Note: For a previous decision in this matter see 123 F.T.R. 257.

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See Constitutional Law - Topic 2507.2 ].

Constitutional Law - Topic 2507.2

Determination of validity of statutes or Acts - Declaration of invalidity - Pawar was denied an old age security pension because he did not meet the residency requirement in s. 3 of the Old Age Security Act (OASA) - Pawar, on behalf of himself and others who did not meet the residency requirement, sought a declaration pursuant to s. 52 of the Constitution Act that s. 3 of the OASA was invalid and damages under s. 24(1) of the Charter - Pawar sought to certify the proceeding as a class action - A Prothonotary of the Federal Court of Canada, Trial Division, found that there was an identifiable class and a common grievance - However, while the action for a declaration was arguable and might succeed, the claim for damages was futile given the law on the availability of both a declaration of invalidity under s. 52 of the Constitution Act and damages under s. 24(1) of the Charter - That portion of the action which sought a declaration was certified and could proceed as a class action.

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction - A plaintiff sought certification of a proceeding as a class proceeding - The plaintiff referred to the British Columbia Class Proceedings Act and submitted that the court ought to apply Federal Court Rule 5 (the gap rule) in order to import the procedures in the British Columbia legislation - A Prothonotary of the Federal Court of Canada, Trial Division, held that Federal Court Rule 1711 provided both for the continuance of a class proceeding and for directions - In addition, the court had an inherent jurisdiction to control its own process - It was not necessary to import the class certification proceedings of the British Columbia legislation - See paragraphs 6, 8 and 9.

Courts - Topic 4016

Federal Court of Canada - Jurisdiction - Trial Division - General - [See Courts - Topic 2004 ].

Practice - Topic 207

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Respecting validity of legislation or statutory power - [See Constitutional Law - Topic 2507.2 ].

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - For damages - [See Constitutional Law - Topic 2507.2 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations - [See Constitutional Law - Topic 2507.2 ].

Cases Noticed:

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 7].

New Brunswick Electric Power Commission v. Maritime Electric Co. and National Energy Board, [1985] 2 F.C. 13; 60 N.R. 203 (F.C.A.), refd to. [para. 9].

Nisshin Kisen Kaisha Ltd. v. Canadian National Railway, [1981] 1 F.C. 293 (T.D.), refd to. [para. 9].

Nisshin Kisen Kaisha Ltd. v. Ship Japan Erica - see Nisshin Kisen Kaisha Ltd. v. Canadian National Railway.

Bandag Inc. v. Vulcan Equipment Co., [1977] 2 F.C. 397 (T.D.), refd to. [para. 9].

Speedo Knitting Mills Ltd. v. Christina Canada Inc. (1985), 3 C.P.R.(3d) 360 (F.C.T.D.), refd to. [para. 11].

Windsurfing International Inc. v. Novaction Sports Inc. and Teasdale (1988), 18 C.P.R.(3d) 230; 15 F.T.R. 302 (T.D.), refd to. [para. 11].

Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare) and Apotex Inc. et al. (No. 2) (1987), 11 F.T.R. 121; 15 C.P.R.(3d) 1 (T.D.), refd to. [para. 11].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1; 93 D.L.R.(4th) 1; 92 C.L.L.C. 14,036; 10 C.R.R.(2d) 1, consd. [para. 12].

Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality), [1971] S.C.R. 957, refd to. [para. 13].

Central Canada Potash Co. v. Canada (Attorney General) and Saskatchewan, [1979] 1 S.C.R. 42; 23 N.R. 481, refd to. [para. 14].

Crown Trust Co. and Greymac Trust Co. v. Ontario, Taylor, Touche, Ross Ltd., Shuve, Woods, Gordon and Central Trust Co. et al. (1986), 14 O.A.C. 137; 26 D.L.R.(4th) 41 (C.A.), refd to. [para. 15].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 24(1) [para. 3].

Constitution Act, 1982, sect. 52 [para. 3].

Federal Court Rules, rule 1711 [para. 1].

Authors and Works Noticed:

Annual Practice (1997), Order 15, rule 12 [para. 1].

Supreme Court Practice - see Annual Practice.

Whitebook - see Annual Practice.

Counsel:

Lewis Spencer, for the plaintiff;

Leigh Taylor, for the defendant.

Solicitors of Record:

Lewis Spencer, Vancouver, British Columbia, for the plaintiff;

George Thomson, Deputy Attorney General of Canada, Ottawa, Ontario, for the defendant.

This motion was heard in Vancouver, British Columbia, on April 28, 1997, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on May 26, 1997.