2011 QCCA 157, 2011 QCCA 157

Pontbriand c. Administration du régime de soins de santé de la fonction publique fédérale 2011 QCCA 157 COURT OF APPEAL CANADA PROVINCE OF QUEBEC MONTREAL REGISTRY No.: 500-09-020291-100 (500-17-051212-093) DATE: JANUARY 31, 2011 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. JEAN BOUCHARD, J.A. FRANCE PONTBRIAND and RAYMOND MALO APPELLANTS - Claimants v.

FEDERAL PUBLIC SERVICE HEALTH CARE PLAN ADMINISTRATION AUTHORITY RESPONDENT - Respondent and PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA INTERVENER JUDGMENT [ 1 ] THE COURT ; – On the appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Richard Mongeau), rendered on December 2, 2009, that granted the respondent’s motion for declinatory exception and its re-amended motion to dismiss, and dismissed the appellant’s re-amended motion to institute proceedings; [ 2 ] For the reasons of Dalphond J.A., with which Rochon and Bouchard JJ.A. agree: [ 3 ] ALLOWS the appeal with costs in favour of the appellants only; [ 4 ] SETS ASIDE the Superior Court judgment and, rendering the judgment that should have been rendered, DISMISSES , with costs, the re-amended motion of the respondent, the Federal Public Service Health Care Plan Administration Authority.

ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. JEAN BOUCHARD, J.A. Mtre Yves Tourangeau Gilbert, Simard, Tremblay For the appellants Mtre Marcel Rivest Rivest, Schmidt For the respondent

Mtre France Brosseau Mtre Philippe FerlandBéland, Ferland, BrosseauFor the intervener Date of hearing: June 2, 2010 REASONS OF DALPHOND, J.A. [5] In Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11, Binnie J. writes: [1] The terms and conditions of employment of the federal government’s quarter of a million current workers are set out in statutes,collective agreements, Treasury Board directives, regulations, ministerial orders, and other documents that consume bookshelves ofloose-leaf binders. Human resources personnel are recruited into the system, spend a career attempting to understand it and die out ofit.

Procedures for the enforcement of employment rights and obligations also differ in some respects from those in the privatesector. Almost any workplace issue can be grieved but only some disputes can be carried onwards to third-party arbitration. Employeebenefits that are not achieved through collective bargaining but are unilaterally conferred by regulation, such as the early retirementincentive (“ERI”) at issue in this case, are administered by the departments, including a three-stage internal grievance procedure, but arenot arbitrable.

The Federal Court has taken the position that subject to the availability of judicial review, disputes falling under the PublicService Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA”), should be left to the specialized machinery thereby established byParliament for their resolution. [2] I agree with the appellant that the statutory language and context of the PSSRA do not amount to the sort of explicit ouster of thejurisdiction of the courts as was the case in Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929.

Nevertheless, whilethe courts retain a residual jurisdiction to deal with workplace-related issues falling under s. 91 of the PSSRA, but not arbitrable unders. 92, the courts should generally in my view, as a matter of discretion, decline to get involved except on the limited basis of judicialreview. The facts of this case, insofar as we can ascertain them, afford a good illustration of why judicial restraint in this area isdesirable.

I would dismiss the appeal. [Emphasis added.] [6] One of the benefits conferred on the federal government’s quarter of a million workers, as well as the Armed Forces, theRCMP, parliamentarians, and persons appointed to certain functions by orders in council, including deputy ministers and CanadianSuperior Court justices, is the Public Service Health Care Plan (PSHCP), which reimburses costs for medical services and products.This appeal concerns the right of a PSHCP beneficiary to bring an action before a court of law in response to a refusal to reimburse amedical expense.

For the reasons that follow, I am of the view that the only possible legal recourse is under the superintending andreforming power of either the Federal Court or the provincial Superior Courts. In light of the allegations as formulated by the respondent,I believe that the trial judge was in error in allowing the motion for declinatory exception and the motion to dismiss. CONTEXT [7] Raymond Malo is a unionized civil servant employed by the federal government, working at the Montreal CompetitionBureau. As such, he is a PSHCP member.

Following a cerebrovascular injury (CVI) suffered during a trip to Tibet, his spouse, FrancePontbriand, considering the care offered at the Norvic Hospital in Kathmandu, Nepal, to be inadequate, asked the PSHCP ProgramManager to inform her whether the cost of transporting Mr. Malo back to Canada would be covered. She was told that the care offered inKathmandu was adequate. Being of the contrary view, she took the necessary steps to bring Mr. Malo back to Montreal by air-ambulance.

The cost was more than $128,000. [8] The relevant provision of the Plan reads as follows: Emergency Benefit While Travelling The PSHCP covers each participant for up to $500,000 (Canadian) in eligible medical expenses incurred as a result of an emergencywhile travelling on vacation or on business. Eligible expenses mean the reasonable and customary charges in excess of the amount payable by a provincial/territorial healthinsurance plan, if they are required for emergency treatment of an injury or disease which occurs within 40 days from the date ofdeparture from the province/territory of residence.

Eligible expenses are charged for: ... 4. medical evacuation, which may include ambulance services, when suitable care, as determined by the Administrator, is not availablein the area where the emergency occurred, … [Emphasis added.] [9] A subsequent claim was refused by Sun Life of Canada, a company which, under a service contract with Her Majesty and

not with the Plan, handles claims filed. Sun Life is the Plan Administrator under the PSHCP. [ 10 ] Unsatisfied, Mr. Malo and his spouse availed themselves of the following appeal process set out in the PSHCP: Appels Lorsque le souscripteur n’accepte pas une décision de l’administrateur et souhaite une révision de son dossier, il peut la demander aux fiduciaires, qui ont l’entière discrétion de prendre une décision tenant dûment compte des circonstances de l’affaire et des dispositions du Régime.

Cela dit, les souscripteurs devraient s’efforcer d’épuiser tous les recours avec l’administrateur avant d’en appeler aux fiduciaires, car ceux-ci se réservent le droit de refuser de revenir sur leur décision en cas d’appel. La procédure d’appel est le dernier niveau de révision du RSSFP. Les appels doivent être soumis dans un délai d’un an suivant l’envoi par l’administrateur d’une explication des prestations payables en règlement de la demande. Appeals Where a member does not agree with a decision of the Administrator and wishes a review of their case, a submission may be made to the Trustees.

The Trustees have the discretion to reach a decision that embodies due consideration for individual circumstances and Plan provisions. Members should endeavour to exhaust all avenues of review with the Administrator before submitting an appeal to the Trustees. The Trustees reserve the right to refuse to reconsider their decision on an appeal. The appeal process is the final review level under the PSHCP.

An appeal must be submitted within one year of the Administrator's mailing of an Explanation of Benefits regarding the claim. [ 11 ] In a letter dated May 28, 2008, they were informed that Sun Life’s decision had been upheld: [ translation ] The Directors [1] were informed that the Administrator was of the opinion that suitable care was offered in Nepal and in the region where the emergency occurred. The Administrator also informed the Directors that the Norvic Hospital had provided, and could provide, Mr. Malo with the necessary care.

The Directors found that the Administrator had, under the Plan provisions, correctly refused your claim and they dismissed your appeal. [ 12 ] On June 30, 2009, they brought an action in Quebec Superior Court, district of Montreal, in which they claimed $130,582.02 for the costs of bringing Mr. Malo back to Montreal and $10,000 for trouble and inconvenience, loss of time and anxiety.

The amended proceeding demanded subsidiarily that the decision of the PSHCP Administrators be quashed and that the file be returned to Sun Life. [ 13 ] Counsel for the PSHCP responded with a motion for declinatory exception on the grounds that there exists a complete undertaking to arbitrate (appeal process), and a motion to dismiss on the grounds that the proceedings for annulment of the arbitration award were belated and did not allege any of the limitative grounds under articles 946.4 and 946.5 C.C.P . [ 14 ] The trial judge accepted the arguments put forward by counsel for the PSHCP and added an element he deemed key: the dispute concerns a condition of employment of a civil servant and, consequently, under

section 236 of the Public Service Labour Relations Act , S.C. 2003, c. 22 ( PSLRA ), every right of action before a court of law is excluded. ANALYSIS I. Origin and status of the PSHCP [ 15 ] As Binnie J.A. points out in the excerpt from Vaughan in paragraph 5 , the federal government divides the benefits of its unionized employees between those negotiated as part of a collective agreement, such as wages, and those provided unilaterally by regulation or otherwise. [ 16 ] Subsection 7.1(1) of the Financial Administration Act , R.S.C. 1985, F-11, provides that: 7.1

(1) The Treasury Board may establish or modify any group insurance or other benefit programs for employees of the federal public administration and any other persons or classes of persons it may designate to be members of those programs, may take any measure necessary for that purpose , including contracting for services, may set any terms and conditions in respect of those programs , including those relating to premiums, contributions, benefits, management, control and expenditures and may audit and make payments in respect of those programs, including payments relating to premiums, contributions, benefits and other expenditures. [Emphasis added.] [ 17 ] The PSHCP is such a group insurance program.

A memorandum of understanding, dated December 1, 1999, signed by the Treasury Board and the bargaining agent members of the National Joint Council (NJC) and the National Association of Federal Retirees,

sets out the application and long-term funding framework of the Plan (including contributions from the Treasury Board, participating employers, and members). A Treasury Board directive, adopted under the aforementioned subsection 7.1(1), came into force on April 1, 2006, to give effect to the memorandum of understanding. It defines the purpose, operation and scope of the PSHCP.

The text of the policy is thus a directive of a Government of Canada department exercising statutory authority which becomes part of the collective agreements for unionized employees and, in other cases, is integrated in an individual contract or in the benefits related to a position. [ 18 ] The NJC was recommended in 1944 and established in 1945 by the Treasury Board. Members include employer representatives and representatives from the 17 bargaining agents representing unionized civil servants. Its purpose is to foster public service efficiency and the well-being of civil servants.

It serves as a forum for consultation on all benefits and working conditions of civil service employees. It adopted a grievance procedure that applies only to unionized civil servants represented by a bargaining agent member of the NJC, entitled National Joint Council By-Laws . The NJC and its mandate are mentioned in subsection 4(1) and

section 11 of the PSLRA . [ 19 ] The directive dated April 1, 2006 provides that “ the grievance procedure set out in

section 14 [ sic ] of the NJC By-laws does not apply to this directive or the PSHCP or any policy relating thereto”. It also provides that “any decision taken by the Trustees, within the meaning of the PSHCP, in respect of an appeal regarding claims or coverage shall be final and binding”. [ 20 ] Non-application of the grievance procedure under the National Joint Council By-Laws is also set out under

section 15.3.1 of said By-Laws, a mirror provision resolving all doubt: 15.3.1 This grievance procedure does not apply to claims or coverage under the Public Service Health Care Plan (PSHCP) . A separate and distinct appeal procedure is provided under the PSHCP. Any decision taken by the Board of Directors, within the meaning of the PSHCP, in respect of an appeal regarding claims or coverage shall be final and binding. [Emphasis added.] [ 21 ] As of June 1, 2007, the PSHCP Trust and Trustees were replaced.

Legally, the PSHCP is now a corporation without share capital established on May 1, 2007 under the name Federal Public Service Health Care Plan Administration Authority / Administration du régime de soins de la santé de la fonction publique fédérale (Administration) by letters patent filed by the Treasury Board under subsection 7.2(1) of the Financial Administration Act , to oversee the administration of group insurance programs or other benefit programs under subsection 7.1(1) of this Act.

Its Board of Directors is composed of ten persons: four persons appointed by the President of the Treasury Board in its capacity as employer, four persons appointed by the NJC bargaining agents, one superannuate representative, and one chairperson appointed by the Treasury Board President on the recommendation of the NJC. A code of ethics applies to directors and officers. Its head office is located in the national capital region. Its letters patent specify that it can be a party to legal proceedings.

Subsection 7.2(6) of the Financial Administration Act provides that it is neither a government corporation nor an agent of Her Majesty in Right of Canada. As stated in the PSHCP Bulletin No. 20 dated June 2007, “the corporation is a body operating at arms’ length from the federal government”, although it owes its existence to a government decision under the Financial Administration Act . In the

preamble to the booklet provided to all members published by PSHCP management, it is described as a private health care plan. [ 22 ] In this specific context, I find that the administration of claims under the PSHCP is not the responsibility of Mr. Malo’s employer, the federal government, but of the Administration’s Board of Directors, an entity that is not its agent. II. Nature of the dispute [ 23 ] The essence of the dispute is the PSHCP Administration’s refusal to accept the claim of a member, Raymond Malo. Mr.

Malo’s action is not directed against his employer, but against a third party acting independently of it. Considered in its essence, the dispute in no way involves Mr. Malo’s employer. It did not arise out of the application of the collective agreement, although the terms of the PSHCP may be deemed to form part of the collective agreement.

While the abolition of the PSCHP or unilateral amendments to the benefits provided therein by the federal government could possibly give rise to a collective grievance or a policy grievance, the fact remains that such is not the essence of the dispute here, which stems solely from the refusal of a third party, the Administration, to reimburse an expense that Mr. Malo believes to be covered by the PSHCP. [ 24 ] Consequently, this dispute cannot constitute an individual grievance under

section 208 PSLRA , nor can it be referred to adjudication under

section 209 PSLRA : 208.

(1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved:

a) by the

interpretation or application, in respect of the employee, of (

i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment , or (ii) a provision of a collective agreement or an arbitral award ; or

b) as a result of any occurrence or matter affecting his or her terms and conditions of employment

(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act .

(3) Despite subsection (2), an employee may not present an individual grievance in respect of the right to equal pay for work of equal value .

(4) An employee may not present an individual grievance relating to the

interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining

agent for the bargaining unit to which the collective agreement or arbitral award applies.

(5) An employee who, in respect of any matter, avails himself or herself of a complaint procedure established by a policy of the employer may not present an individual grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from presenting an individual grievance under this Act.

(6) An employee may not present an individual grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

(7) For the purposes of subsection (6), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada. 209.

(1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to:

a) the

interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award ;

b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

c) in the case of an employee in the core public administration , (

i) demotion or termination under paragraph 12(1)(

d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(

e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or (ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required; or

d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

(2) Before referring an individual grievance related to matters referred to in paragraph (1)( a ), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

(3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)( d ) . [Emphasis added.] [ 25 ] As argued by the intervener, the essence of the dispute here is the refusal of the PSHCP Administration to reimburse medical expenses; in short, it is a matter related to the administration of the Public Service Health Care Plan. No employer decision is involved. Moreover, the directive governing the PSHCP excludes the grievance procedure under subsection 208(5) PSHCP . It follows that

section 236 PSLRA , which provides that the right of an employee to seek redress by way of grievance is in lieu of any right of action in relation to his or her conditions of employment , does not apply: 236.

(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute. (2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication. (3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct. [Emphasis added.] [ 26 ] Concluding that the solution to the present dispute is found in

section 236 PSLRA would mean, as the respondent recognizes, that the right of action before a court of law for a coverage refusal would not be excluded in the case of persons not subject to the PSLRA , such as senior officers, deputy ministers, judges, surviving spouses of a deceased member, members of the Armed Forces, etc. [ 27 ] That said, with respect, the Superior Court erred in allowing the motion to dismiss on the ground that it is a case governed by

section 236 PSLRA . III. Absence of an arbitration clause [ 28 ] The other argument accepted by the Superior Court is based on the existence of a perfect arbitration clause, thereby excluding any appeal to the courts in the case of a coverage dispute. [ 29 ] I cite again the relevant provisions of the PSHCP, bearing in mind that the Trustees no longer exist. They were replaced by Administrator members of the Administration’s Board of Directors:

Appels Lorsque le souscripteur n’accepte pas unedécision de l’administrateur et souhaite unerévision de son dossier, il peut la demander auxfiduciaires, qui ont l’entière discrétion de prendreune décision tenant dûment compte descirconstances de l’affaire et des dispositions duRégime. Cela dit, les souscripteurs devraients’efforcer d’épuiser tous les recours avecl’administrateur avant d’en appeler auxfiduciaires, car ceux-ci se réservent le droit derefuser de revenir sur leur décision en casd’appel. La procédure d’appel est le dernierniveau de révision du RSSFP.

Les appels doivent être soumis dans un délaid’un an suivant l’envoi par l’administrateur d’uneexplication des prestations payables en règlementde la demande. Appeals Where a member does not agree with a decisionof the Administrator and wishes a review of theircase, a submission may be made to the Trustees.The Trustees have the discretion to reach adecision that embodies due consideration forindividual circumstances and Plan provisions.Members should endeavour to exhaust allavenues of review with the Administrator beforesubmitting an appeal to the Trustees.

TheTrustees reserve the right to refuse to reconsidertheir decision on an appeal. The appeal process isthe final review level under the PSHCP. An appeal must be submitted within one year ofthe Administrator's mailing of an Explanation ofBenefits regarding the claim. [Emphasis added.] [30] As argued by the intervener, a bargaining agent, the process in no way resembles a grievance adjudication: [translation] - no role for the union that Mr.

Malo belongs to; - no process for submitting the dispute (exchange of documents, time limit for rendering the decision, no evidentiary rule...); - no possibility of a hearing; - lack of adversarial process; - the decision was not made by an independent third party but by the Administration’s Board, which has full discretion to uphold oroverturn the decision of the Plan Administrator and which is not required to give reasons. [31] Similarly, it cannot be an arbitration clause under

article 2638 C.C.Q., a clause accepted by all PSHCP members when theyjoin the plan, whereby the parties agree to submit disputes to arbitration (see also how the term is defined by the Supreme Court inZodiac International v. Polish People's Republic, (SCC), [1983] 1 S.C.R. 529 and in Sport Maska inc. v. Zittrer, (SCC), [1988] 1 S.C.R. 564). No third party is appointed.

Clearly, it is simply a second level within the Administration:“Where a member does not agree with a decision of the Administrator and wishes a review of their case”, “discretion to reach a decisionthat embodies due consideration for individual circumstances and Plan provisions”, “The appeal process is the final review level underthe PSHCP”. IV.

Exclusion clause to make a claim before a court of law [32] The question now is whether the inclusion of the phrase “any decision taken by the [Administrators], within the meaning ofthe PSHCP, in respect of an appeal regarding claims or coverage shall be final and binding” in the directive establishing the PSHCPexcludes a claim before civil courts by a member once the internal process is exhausted. [33] Counsel for the appellants argues that such cannot be the case. They point to judgments that have allowed claims against thePSHCP Trust: Asselin v.

Fiducie du régime des soins de santé de la fonction publique, (QC CQ), REJB 2003-40826(CQ); Rousseau v. Sun Life du Canada, 2006 QCCQ 297 (Small Claims division). They say that a certain practice emerges from thesedecisions. This argument does not convince me. In both cases, the issues raised in the present case were not discussed.

Moreover, thefirst judgment was rendered before Vaughan; as for the second, it cannot serve as case law (article 985 C.C.P.) [34] I conclude from Vaughan, supra, that the absence of a remedy before an independent decision-maker is not in itself sufficientto justify the intervention of the courts, and that courts must avoid compromising the integrity of a plan established by directive, even ifit means that there is no access to a neutral forum to rule on a dispute.

Instead, they should consider whether it is a case where theyshould exercise their discretion to refuse to intervene, except within the limited scope of a judicial review. [35] In the present case, it is in my view advisable to exercise judicial restraint and interpret the directive and its legal context asexcluding the right to make a claim before a court of competent jurisdiction according to the amount claimed and the place ofemployment. [36] First, under the federal labour relations scheme, many issues are left to the discretion of a manager and cannot be the subject

of a grievance and, even less so, of arbitration. According to the Supreme Court, when a benefit is unilaterally conferred by a federal employer, it is entitled to specify the machinery for its administration, subject to a dissatisfied party having recourse to judicial review ( Vaughan , paragraph 26 ). The process put in place by the Treasury Board’s PSHCP directive follows this logic.

The Plan provides a solution in the case of a refusal by Sun Life, the front-line manager: an appeal to the Directors. [ 37 ] Second, it seems clear to me from the PSHCP directive and the NJC By-Laws that the Treasury Board, with the agreement of the bargaining agents, wanted health insurance claims to be subject to a flexible, informal and quick process, without access to a grievance process or the equivalent, and even less to an arbitrator.

The terms used and the mechanism put in place send the message that decisions concerning the administration of the PSHCP must be final. [ 38 ] Third, allowing systematic access to the courts to claim reimbursement of expenses would jeopardize the comprehensive review mechanism in the PSHCP directive. We are, after all, in a specialized area, the reimbursement of medical expenses, managed by an experienced insurer (Sun Life) under the supervision of a Board of Directors, on which representatives of all the stakeholders, including the beneficiaries, sit.

In the case at bar, it is an administrative issue best left to the PSHCP Administrators, to be decided according to the circumstances and the objectives of the Plan, bearing in mind the precedential value that their decision may have. With their

interpretation, the Administrators complement the Plan in a way or clarify its grey areas. [ 39 ] Fourth, finding that reimbursement or coverage refusals may be the subject of a claim before the courts under a plan covering more than 250,000 civil servants and thousands of other persons, each of whom may file many claims per year, could give rise to an avalanche of lawsuits that the Administration would have to answer at great cost.

This could have a significant impact on the Plan’s operating costs, requiring changes to the funding of the Plan and the complex protocol that provides for it. [ 40 ] On the whole, I find that the Administrators’ decisions concerning the application of a directive whereby the federal Crown grants certain benefits to designated individuals are decisions that can be subject to public law proceedings, such as judicial review, but not a civil action as if the denied benefit were claimed under an insurance contract with a private company.

It seems to me that these decisions have a policy-making component and, perhaps, even a public interest component, by refining the scope of the government directive. VI. Only option: judicial review [ 41 ] With my analysis, I do not mean to suggest that members should be at the complete mercy of the PSHCP Directors. There remains the possibility of applying to the court of competent jurisdiction via a judicial review of the Administrators’ decision. Was their decision made following a process where the member could state his or her position?

Did the member have full or sufficient access to the reasons for Sun Life’s refusal? Was the decision discriminatory or unreasonable under the circumstances? And so on. [ 42 ] As it was not argued before this Court or before the Superior Court that the Federal Court is the only court of competent jurisdiction, I do not believe it appropriate to decide this issue. It will be up to the Superior Court, if necessary, to rule on its jurisdiction.

I would simply emphasize that the source of the Administrators’ authority, the responsibilities entrusted to the Administration and the nature of the Administrators’ decision are factors that may well militate in favour of recognition of the PSHCP Board of Directors as a “federal board” when it exercises its appellate jurisdiction under the directive. [ 43 ] In these circumstances, I believe it would be wiser to allow the appeal in order to maintain for now the Superior Court’s jurisdiction, while recommending that the parties discuss the possibility of undertaking proceedings in Federal Court.

DISPOSITION [ 44 ] For these reasons, I would allow the appeal with costs, set aside the Superior Court judgment and, rendering the judgment that should have been rendered, dismiss with costs the re-amended motion to dismiss of the respondent, the Federal Public Service Health Care Plan Administration Authority. PIERRE J. DALPHOND, J.A.