2013 QCCA 2181, 2013 QCCA 2181

Fabrikant c. Canada (Attorney General) 2013 QCCA 2181 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-024005-134 DATE: DECEMBER 13, 2013 IN THE PRESENCE OF THE HONOURABLE JACQUES R. FOURNIER, J.A. VALERY I. FABRIKANT APPLICANT v. ATTORNEY GENERAL OF CANADA and MINISTER OF HUMAN RESOURCES AND SKILLS DEVELOPMENT RESPONDENTS JUDGMENT [ 1 ] The applicant has been recognised as a quarrelsome litigator in both the Superior Court and the Court of Appeal.

Therefore he cannot institute proceedings without permission from the Chief Justice of both Courts. [ 2 ] The Chief Justice of the Superior Court has dismissed his demand to institute proceedings against the respondents. [ 3 ] The applicant who has been found guilty of murder amongst other infractions is being detained in a federal penitentiary. He would be otherwise eligible for old age pension and he received it from 2005 to 2010. In 2010, Parliament enacted an amendment that denies him the benefits he has enjoyed prior to the amendment. [ 4 ] The relevant

section of the Act [1] now reads as follows:

(1) Pour toucher la pension, la personne qui y a droit aux termes du paragraphe 3(1) ou (2) doit faire agréer la demande qu’elle présente ou qui est présentée en son nom. Le paiement de la pension n’est rétroactif que dans la mesure prévue par la présente loi. […]

(3) Il ne peut être versé de pension à une personne assujettie à l’une des peines ci-après à l’égard de toute période pendant laquelle elle est incarcérée, exclusion faite du premier mois :

a) une peine d’emprisonnement à purger dans un pénitencier en vertu d’une loi fédérale;

b) si un accord a été conclu avec le gouvernement d’une province en vertu de l’article 41 de la

Loi sur le ministère des Ressources humaines et du Développement des compétences, une peine d’emprisonnement de plus de quatre-vingt-dix jours à purger dans une prison, au sens du paragraphe 2(1) de la

Loi sur les prisons et les maisons de correction, située dans cette province. 5.

(1) No pension may be paid to any person unless that person is qualified under subsection 3(1) or (2), an application therefor has been made by or on behalf of that person and the application has been approved, and, except as provided in this Act, no pension may be paid to any person in respect of any period prior to the day on which that person’s application is approved. […]

(3) No pension may be paid in respect of a period of incarceration — exclusive of the first month of that period — to a person who is subject to a sentence of imprisonment (

a) that is to be served in a penitentiary by virtue of any Act of Parliament; or (

b) that exceeds 90 days and is to be served in a prison, as defined in subsection 2(1) of the Prisons and Reformatories Act, if the government of the province in which the prison is located has entered into an agreement under

section 41 of the Department of Human Resources and Skills Development Act. [ 5 ] Applicant is not contesting Parliament’s authority to enact the amendment but he claims that it does not apply to him. He is seeking a declaratory judgment. His first conclusion reads as follows: (

a) DECLARE that new provision of the Old Age Security Act are not applicable to Plaintiff due to Acquired Rights Doctrine and sections 43 and 44 of

Interpretation Act. [ 6 ] Chief Justice Rolland found that his proceedings, as drafted, had no reasonable chance of success and that therefore he could not give the authorisation that was sought by applicant. [ 7 ] In argument before me the respondents claimed that the applicant needed to go through the regular channels and to seek the proper remedies before the federal offices and ultimately apply to the Federal Court by way of judicial revision. [ 8 ] Applicant responded that he made such applications but that they were never answer. [ 9 ] A person who thinks he’s entitled to benefits can make an application.

In such a person is dissatisfied he can apply to the Minister and if he is dissatisfied with the Minister’s decision he can file on appeal to the Social Security Tribunal. This flows from sections 27 and 28 of the Old Age Security Act . [ 10 ] If the person is dissatisfied with the decisions made by the Minister or the Social Security Tribunal then the application must be made according to section 18(1) of the Federal Court Act [2] . The Federal Court’s jurisdiction is exclusive. [ 11 ] The applicant claims that he has made an application to the Minister and that he has received no answer.

The remedy is found in section 18(1) of the Federal Court Act . [ 12 ] If he is seeking a declaratory judgment and he is, he is also bound by

Section 18. [ 13 ] Therefore, not only do I agree with Chief Justice Rolland’s finding on the insufficiency of the applicant’s proceedings but I also find that these proceedings cannot be undertaken in a provincial Superior Court and that on this ground also they are ill fated. [ 14 ] As of this day no proceedings have been authorized I cannot see that I can grant costs. ACCORDINGLY, THE COURT :

[ 15 ] DISMISSES the motion of the applicant; [ 16 ] Without costs. JACQUES R. FOURNIER, J.A. V.I. Fabrikant Personally Mtre Pascale-Catherine Guay ATTORNEY GENERAL OF CANADA For the respondents Date of hearing: December 9, 2013