Pawar v. Canada, (1996) 123 F.T.R. 257 (TD)

• Court: Federal Court (Canada)
• Case Date: September 09, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 123 F.T.R. 257 (TD)

Pawar v. Can. (1996), 123 F.T.R. 257 (TD)

MLB headnote and full text

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 v. Canada

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

December 2, 1996.

Summary:

Pawar commenced a representative action on behalf of Canadian citizens or permanent residents, 65 years of age, who had not resided in Canada for the required 10 consecutive years leading up to pensionability. The class sought a declaration as to their pensionable status, and if successful, damages equivalent to their respective pension entitlement. Pawar advertised for class members and had written authorization to represent 250 people. The Crown sought to strike out the statement of claim in order to reduce the representative proceeding to an action in which Pawar was the sole plaintiff.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion.

Practice - Topic 14

General principles and definitions - Procedures not provided for in rules - Gap rule - In considering the basic principles relating to representative actions under Federal Court Rule 1711, a Prothonotary of the Federal Court of Canada, Trial Division, held that it was not necessary to incorporate tests from other jurisdictions under the Gap Rule - The Prothonotary preferred to glean various principles from the numerous cases involving comparable or similar rules - See paragraph 17.

Practice - Topic 208

Persons who can sue - Individuals - Class or representative actions - For damages - Pawar commenced a representative action on behalf of Canadian citizens or permanent residents, 65 years of age, who had not resided in Canada for the required 10 years leading up to pensionability - The class sought a declaration as to their pensionable status and, if successful, damages equivalent to their respective pension entitlement - The Crown argued that a class action was not suitable as it would be difficult to award damages - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the argument and stated that it would become a matter of applying a formula of so many years' pension eligibility, which could also take into account any applicable limitation dates - See paragraph 37.

Practice - Topic 209

Persons who can sue - Individuals - Status or standing - Class or representative actions - General principles - [See Practice - Topic 14 ].

Practice - Topic 209.1

Persons who can sue - Individuals - Status or standing - Class actions - Members of class - Pawar commenced a representative action on behalf of Canadian citizens or permanent residents, 65 years of age, who had not resided in Canada for the required 10 years leading up to pensionability - Pawar had written authorization to represent 250 people - The Crown sought to strike out portions of the statement of claim, claiming that the class was unidentifiable - A Prothonotary of the Federal Court of Canada, Trial Division, was not prepared to find that it was not plain and obvious that the action could not succeed because the class was not identifiable - The size of the class did not detract from its identification - The proposed class was unambiguous since an individual's date of arrival in Canada, status and age were easily accessible - See paragraphs 27 to 32.

Practice - Topic 209.1

Persons who can sue - Individuals - Status or standing - Class actions - Members of class - Pawar commenced a representative action, on behalf of Canadian citizens or permanent residents, 65 years of age, who had not resided in Canada for the required 10 years leading up to pensionability - The Crown sought to strike out portions of the statement of claim, arguing that the class members did not have a common grievance - A Prothonotary of the Federal Court of Canada, Trial Division, held that it was not plain and obvious that the action could not succeed by reason of lack of common grievance - A plea of limitation was not sufficient grounds on which to strike out a statement of claim - The trial judge could deal with any limitations by further delineating the class - See paragraphs 33 to 35.

Practice - Topic 209.4

Persons who can sue - Individuals - Status or standing - Class actions - Representative plaintiff - Pawar commenced a representative action on behalf of Canadian citizens or permanent residents, 65 years of age, who had not resided in Canada for the required 10 years leading up to pensionability - The class sought a declaration as to their pensionable status, and if successful, damages equivalent to their respective pension entitlement - Pawar obtained written authorization from 250 people, located and advertised for other class members and retained counsel - In finding that Pawar could fairly and adequately represent the class, a Prothonotary of the Federal Court of Canada, Trial Division, stated that Pawar did not need to obtain the consent of all represented and that it was unnecessary for the class involved in the action to cover the whole of the possible class - See paragraphs 24 to 26.

Practice - Topic 219

Persons who can sue - Individuals - Standing - Validity or interpretation of legislation - Pawar commenced a representative action, on behalf of Canadian citizens or permanent residents, 65 years of age, who had not resided in Canada for the required 10 consecutive years leading up to pensionability - The class sought a declaration as to their pensionable status, and if successful, damages equivalent to their respective pension entitlement - The Crown argued that Pawar did not have the standing to bring an action challenging the Old Age Security Act - A Prothonotary of the Federal Court of Canada, Trial Division, rejected the argument - Pawar, who raised a serious issue, was directly affected by the legislation and took the only reasonable and effective means of bringing the issues before the court - See paragraph 23.

Practice - Topic 2226

Pleadings - Striking out pleadings - Grounds - Pawar commenced a representative action, on behalf of Canadian citizens or permanent residents, 65 years of age, who had not resided in Canada for the required 10 consecutive years leading up to pensionability - The class sought a declaration as to their pensionable status and, if successful, damages equivalent to their respective pension entitlement - There were 250 class members - The Crown sought to strike portions of the statement of claim to reduce the representative proceeding into an action in which Pawar would be the sole plaintiff - A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion - It was not plain and obvious that a representative action would not succeed - The class was identifiable, shared the same interest, had a common grievance and damages could be awarded based on a formula.

Practice - Topic 2238

Pleadings - Striking out pleadings - Grounds - Prejudice - Embarrass or delay fair trial - A defendant in a representative action sought to strike out portions of a statement of claim on the grounds that it would prejudice, embarrass or delay the trial under rule 419(1)(d) - In dismissing the motion, a Prothonotary of the Federal Court of Canada, Trial Division, considered that a representative action was preferable to a plethora of similar proceedings - The Prothonotary also considered the economics of litigation (litigation being more feasible in a representative action), the balance of convenience and judicial economy (resolving a common issue at a reasonable cost) and the individual's right to have his day in court - See paragraph 11.

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 7].

Waterside Ocean Navigation Co. v. International Navigation Ltd., [1977] 2 F.C. 257 (T.D.), refd to. [para. 9].

Ship Laurentian Forest - see Waterside Ocean Navigation Co. v. International Navigation Ltd.

Creaghan Estate v. Canada, [1972] F.C. 732 (T.D.), refd to. [para. 10].

Knowles v. Roberts (1888), 38 Ch. D. 263 (C.A.), refd to. [para. 11].

Micromar International Inc. v. Micro Furnace Ltd. (1988), 23 C.P.R.(3d) 214 (F.C.T.D.), refd to. [para. 13].

Logan et al. v. Canada (1994), 89 F.T.R. 37 (T.D.), refd to. [para. 14].

John v. Rees, [1970] Ch. 345, refd to. [para. 14].

Duke of Bedford v. Ellis, [1901] A.C. 1, refd to. [para. 14].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 15].

Oregon Jack Creek Indian Band v. Canadian National Railway Co. (1989), 56 D.L.R.(4th) 404 (B.C.C.A.), refd to. [para. 16].

Cairns et al. v. Farm Credit Corp. et al. (1992), 49 F.T.R. 308 (T.D.), refd to. [para. 18].

Shaw v. Real Estate Board of Greater Vancouver, [1973] 4 W.W.R. 391 (B.C.C.A.), refd to. [para. 20].

Irish Shipping v. Commercial Union Assurance; Ship Irish Rowan, Re, [1989] 2 Lloyd's Rep. 144 (C.A.), refd to. [para. 21].

Canada v. Perry et al. (1982), 41 N.R. 91 (F.C.A.), refd to. [para. 21].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 23].

Borowski v. Canada (Minister of Justice and Minister of Finance), [1981] 2 S.C.R. 575; 39 N.R. 331; 12 Sask.R. 420, refd to. [para. 23].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 23].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 23].

Markt & Co. v. Knight Steamship Co.; Sale and Frazar v. Knight Steamship Co., [1910] 2 K.B. 1021 (C.A.), refd to. [para. 24].

Twinn v. Canada, [1987] 2 F.C. 450; 6 F.T.R. 138 (T.D.), refd to. [para. 25].

Mayrhofer v. Canada (1993), 61 F.T.R. 81 (T.D.), refd to. [para. 25].

Bendall v. McGhan Medical Corp. (1993), 16 C.P.C.(3d) 156 (Ont. Gen. Div.), refd to. [para. 28].

Pork Producers Marketing Board (Alta.) et al. v. Swift Canadian Co. et al. (1981), 33 A.R. 541; 129 D.L.R.(3d) 411 (Q.B.), refd to. [para. 30].

Kiist and Robertson v. Canadian Pacific Railway Co. et al., [1982] 1 F.C. 361; 37 N.R. 91 (F.C.A.), refd to. [para. 33].

American Pipe and Construction Co. v. Utah (1974), 414 U.S. 538 (S.C.), refd to. [para. 34].

Karlsson v. Canada, [1991] 2 C.T.C. 282 (F.C.T.D.), refd to. [para. 34].

BMG Music Canada Inc. v. Vogiatzakis (1996), 67 C.P.R.(3d) 27, refd to. [para. 34].

Statutes Noticed:

Federal Court Rules, rule 419(1)(d) [para. 8]; rule 1711 [para. 14].

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 case was heard at Vancouver, British Columbia, on September 9, 1996, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on December 2, 1996.