MICHAL HALLEN Applicant v. ATTORNEY GENERAL OF CANADA, 2014 FC 88

Date: 20140127 Docket: T-1428-12 Citation: 2014 FC 88 Ottawa, Ontario, January 27, 2014 PRESENT: The Honourable Mr. Justice O'Reilly BETWEEN: MICHAL HALLEN Applicant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT AND JUDGMENT I. Overview [ 1 ] After a long career in the federal public service, Mr Michal Hallen moved to the private sector in 2000, taking a position with Loba Limited.

He directed that his public service pension benefits be transferred to the Loba pension plan under a Reciprocal Transfer Agreement (RTA). [ 2 ] In 2003, the Canada Revenue Agency revoked the Loba pension plan retroactively to April 2000. That decision was upheld by the Federal Court of Appeal, 2004 FCA 342 . [ 3 ] The Treasury Board advised Mr Hallen in July 2005 that, in the circumstances, he could either accept a reduced annual allowance or receive a deferred annuity when he turned 60. If he did not reply, he would be presumed to have elected the latter option.

Mr Hallen did not reply. [ 4 ] In due course, Mr Hallen learned that his deferred annuity would become payable on April 21, 2007, his 60th birthday. He was asked to confirm his address and SIN number. Again, he did not reply. [ 5 ] In 2010, the administrator of the Loba plan contacted the Treasury Board to inquire about Mr Hallen’s transfer request. Treasury Board wrote to Mr Hallen and confirmed the options that had been described in its 2005 letter to him. [ 6 ] Mr Hallen began receiving pension cheques in 2011, but has not cashed any. In 2012, his lawyer asked Treasury Board to review Mr Hallen’s situation.

In response, a Treasury Board representative sent a letter dated June 26, 2012, simply confirming the information that had been provided to Mr Hallen in 2005. [ 7 ] Mr Hallen argues that the refusal to transfer his pension benefits was unreasonable and asks me to declare his entitlement to a transfer. The respondent submits that Mr Hallen’s application for judicial review is out of time, the refusal was not unreasonable, and Mr Hallen is not entitled to a declaration given his delay in seeking redress in this Court.

[8] I agree that Mr Hallen’s application is out of time. Therefore, I need not deal with the other issues. II. Can Mr Hallen bring an application for judicial review of the transfer refusal? [9] Mr Hallen argues that the letter he received in 2005 did not set out a “decision”. Rather, it set out Treasury Board’s ongoingoverall policy with respect to transfers under RTAs.

While a “decision” is subject to a 30-day limitation period for applications forjudicial review under s 18.1(2) of the Federal Courts Act, RSC 1985, c F-7, other matters, including ongoing policy decisions, can bechallenged at any time. [10] In my view, Mr Hallen is challenging a decision of Treasury Board and is bound by the 30-day time limit for launching anapplication for judicial review. [11] Mr Hallen relies on a number of cases in which conduct by the respondent was characterized as a “matter” or policy or courseof conduct, rather than a “decision”.

He cites Krause v Canada, (FCA), [1999] 2 FC 476 at para 24; Airth v Ministerof National Revenue, 2006 FC 1442 at para 10; Apotex Inc v Canada (Minister of Health), 2010 FC 1310; May v CBC/Radio Canada,2011 FCA 130 at para 11. [12] In my view, these cases are distinguishable. [13] Krause dealt with a challenge brought in 1997 by a group of contributors to and beneficiaries of a government pension plan.They disputed a general policy decision taken by the Government of Canada in 1989-90. That decision was implemented by way ofactions taken each fiscal year beginning in 1993-94.

The Federal Court of Appeal found that the applicants were not contesting theoriginal policy decision; rather, they were challenging the actions taken each year to implement that policy.

Accordingly, the applicationfor judicial review was directed at those acts, not a particular decision or order, and the 30-day time limitation did not apply. [14] In Airth, on a motion to strike, Justice Michael Phelan concluded that the applicants were challenging an entire course ofconduct carried out by a range of persons and entities, not just the particular requests for information with which they had been served.Therefore, the application for judicial review did not relate to a singular decision or order; rather, it was directed at a broader “matter”,and the 30-day time limitation, therefore, did not apply (at para 5). (Justice Phelan noted that it was open to the judge hearing the meritsto conclude otherwise, at para 13). [15] Similarly, in Apotex, on a motion to strike, Justice Yvon Pinard found that the applicants appeared to be challenging a seriesof decisions and actions taken by the Minister of Health, allegedly motivated by bias, rather than a single decision.

Therefore, the 30-daytime limitation did not apply. However, he, too, left the issue to be decided definitively by the judge hearing the merits at para 14).Justice Robert Barnes ultimately concluded that the applicant was actually challenging “three discrete administrative decisions” and wasbound by the 30-day time limitation (2011 FC 1308, at para 18). [16] Finally, May involved a 2011 challenge to an ongoing policy of the Canadian Radio-television and TelecommunicationsCommission (CRTC) relating to election broadcasts.

The CRTC had been applying the policy since 1995, and had published it inGuidelines that same year. Justice Marc Nadon, writing for the Court, found that the applicant could have challenged that “matter” atany time and did not have to wait until the CRTC issued a bulletin relating specifically to the 2011 election (at para 11). Accordingly, heconcluded that the issue was not “really urgent” and denied the applicant’s request for an expedited hearing in advance of that election. [17] In Mr Hallen’s case, it is clear to me that he is challenging a singular decision – the CRA’s revocation of the Loba pensionplan.

The consequences of that decision in respect of Mr Hallen’s pension – the refusal to transfer his pension benefits – wascommunicated to him by way of the July 2005 letter. He is not challenging a general policy position, a course of conduct, or a series ofdecisions and acts. [18] Regarding the letter sent by Treasury Board in June 2012, this did not set out a decision and, therefore, does not provide abasis for judicial review.

It was merely a courtesy letter (as in Batkai v Canada (Minister of Citizenship and Immigration), 2002 FCT514 at para 13; Hughes v Canada (Customs and Revenue Agency), 2004 FC 1055 at para 6; and Phillips v Canada (Librarian andArchivist), 2006 FC 1378 at para 2). [19] In my view, Mr Hallen could have launched his application for judicial review in 2005 when Treasury Board informed him ofthe consequences of the de-registration of the Loba pension plan. Alternatively, when those consequences materialized in the form of his

receipt of pension cheques in 2011, he could have commenced an application for judicial review at that point. In either case, his application for judicial review is now clearly out of time. IV. Conclusion and Disposition [ 20 ] I must dismiss this application for judicial review with costs, because it was brought out of time. JUDGMENT THIS COURT’S JUDGMENT is that : 1. The application for judicial review is dismissed, with costs. “James W. O’Reilly” Judge Annex Federal Courts Act , RSC 1985, c F-7 Application for judicial review Time limitation 18.1

(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.

Loi sur les Cours fédérales, LRC (1985), ch F-7 Demande de contrôle judiciaire Délai de présentation 18.1

(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l’office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la

partie concernée, ou dans le délai supplémentaire qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces trente jours, fixer ou accorder.

FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1428-12 STYLE OF CAUSE: MICHAL HALLEN v ATTORNEY GENERAL OF CANADA PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: September 16, 2013 REASONS FOR JUDGMENT AND JUDGMENT: O'REILLY J. DATED: JANUARY 27, 2014 APPEARANCES : Dougald E. Brown For The Applicant Elizabeth Richards For The Respondent SOLICITORS OF RECORD : Nelligan O'Brien Payne LLP Barristers and Solicitors Ottawa, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent