BEVERLEY TIPPETT Applicant v. THE ATTORNEY GENERAL OF CANADA AND JOHN STARK, 2012 FCA 301

Date: 20121119 Docket: A-131-12 Citation: 2012 FCA 301 CORAM: NOËL J.A. MAINVILLE J.A. WEBB J.A. BETWEEN: BEVERLEY TIPPETT Applicant and THE ATTORNEY GENERAL OF CANADA AND JOHN STARK Respondents Heard at Halifax, Nova Scotia, on November 19, 2012. Judgment delivered from the Bench at Halifax, Nova Scotia, on November 19, 2012. REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A. Date: 20121119 Docket: A-131-12 Citation: 2012 FCA 301 CORAM: NOËL J.A. MAINVILLE J.A. WEBB J.A. BETWEEN: BEVERLEY TIPPETT Applicant and THE ATTORNEY GENERAL OF CANADA AND JOHN STARK Respondents

REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Halifax, Nova Scotia, on November 19, 2012) NOËL J.A. [ 1 ] This is a judicial review application from a decision of the Pension Appeals Board (PAB) allowing an appeal from a decision of the Review Tribunal on the basis that the challenge brought by the applicant under

section 15 of the Canadian Charter of Rights and Freedoms (Charter) involved a retrospective and, thus impermissible application of the Charter. [ 2 ] The challenge is directed at the three year limitation period set out in paragraph 55(1) of the Canada Pension Plan , R.S.C. 1985, c.

C-8 (CPP) within which a division of the unadjusted pensionable earning between spouses ( i.e. credit-split) may be claimed, and the burden which it places on women. [ 3 ] We are all agreed that on the undisputed facts of this case, there is no retrospective application of the Charter , and that the PAB erred in law in holding otherwise. [ 4 ] Specifically, there is no dispute that the applicant’s right to apply for the credit split under paragraph 55(1) of the CPP arose upon her divorce in February 1985 and expired three years later when the limitation period set out in that provision ran out.

It follows that the right to apply expired in February 1988, when

section 15 of the Charter was in force. [ 5 ] It was therefore not open to the PAB to refuse to entertain the Charter challenge on the basis that it involved a retrospective application of the Charter. [ 6 ] The decision of the PAB will accordingly be set aside, and the matter will be remitted to a differently constituted panel of the PAB, for a hearing on the merits of the appeal. "Marc Noël" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: 20121119 STYLE OF CAUSE: BEVERLEY TIPPETT and THE ATTORNEY GENERAL OF CANADA AND JOHN STARK

PLACE OF HEARING: Halifax, Nova Scotia DATE OF HEARING: November 19, 2012 REASONS FOR JUDGMENT OF THE COURT BY: NOËL, MAINVILLE, WEBB JJ.A. DELIVERED FROM THE BENCH BY: NOËL J.A. APPEARANCES : Vincent Calderhead FOR THE APPLICANT Nicole Butcher FOR THE RESPONDENT (Attorney General of Canada) John Stark FOR THE RESPONDENT (John Stark) SOLICITORS OF RECORD : Nova Scotia Legal Aid Halifax , Nova Scotia FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT (Attorney General of Canada) N/A FOR THE RESPONDENT (John Stark)