Moore v Hurst, 2021 SKCA 27

Court of Appeal for Saskatchewan Docket: CACV3640 Citation: Moore v Hurst , 2021 SKCA 27 Date: 2021-02-18 Between: Nathaniel Moore Appellant (Applicant) And Sharleen Hurst Respondent (Respondent) Before: Ottenbreit, Caldwell and Schwann JJ.A. Disposition: No jurisdiction to hear appeal; order below set aside for lack of jurisdiction Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Madam Justice Schwann On appeal from: QBG 3512 of 2018, Regina Appeal heard: November 18, 2020 Counsel: Travis Avery for the Appellant Randall M.

Sandbeck, Q.C., for the Respondent Caldwell J.A. [ 1 ] Nathaniel Moore filed a notice of appeal in respect of the decision of a Queen’s Bench Chambers judge dated April 24, 2020 [ Fiat ], and order issued on May 5, 2020 [ Order ]. He alleges the Chambers judge erred by ordering the Public Employees Pension Board [Board], which administers the Public Employees Pension Plan [PEPP], to determine the value of Sharleen Hurst’s share of Mr. Moore’s pension for the purposes of carrying out its division under The Family Property Act , SS 1997, c F-6.3 . [ 2 ] Upon the dissolution of their marriage, Mr. Moore and Ms.

Hurst entered into an interspousal agreement dated April 21, 1999 [Agreement].

Article 8.01 of that Agreement divided Mr. Moore’s employment pension equally between the two former spouses “pursuant to the Rules and Regulations of the Pension Plan” and required Mr. Moore to execute “all further documents necessary to give effect to this division”. Mr. Moore did not provide a copy of the Agreement to the predecessor to the Board at the time of separation. The Board itself has no record of receiving any documentation regarding the Agreement or the division of the pension prior to July 25, 2018. Mr. Moore averred that he believed Ms. Hurst’s share had been transferred to her. [ 3 ] Mr.

Moore retired in March of 2017, and began drawing on the pension. Ms. Hurst learned of his retirement early in 2018. She provided the Board with a copy of the Agreement in July of 2018 and sought her share of the pension. Given investment growth over the intervening years, the value of the pension is considerably higher than it had been at the date of separation. On September 14, 2018, the Board valued Ms. Hurst’s share at $203,091.38, being her one-half interest as at the date of separation ($43,448.30) plus the accrued investment return on that amount. The Board advised Mr.

Moore that it would determine the final value of Ms. Hurst’s share at the time of payment based on the number of units to which she is entitled, which is a constant, and unit value, which fluctuates daily. Dissatisfied with the Board’s calculations, Mr. Moore asked the Board to conduct an extensive audit of the pension and to recalculate Ms. Hurst’s share. The Board conducted an audit but maintained its original valuation. [ 4 ] On November 20, 2018, the Board notified Mr.

Moore that it had received the documentation it needed to carry out the division of the pension and advised him that he had 30 days to object under ss. 24 and 25 of The Public Employees Pension Plan Act , SS 1996, c P-36.2 [ PEPPA ], which provide: Division on marriage breakdown 24(1) On the breakdown of the spousal relationship of a member, the board may, in accordance with this section, divide: (

a) the amount standing to the credit of the member; or (

b) a pension benefit provided by an amount standing to the credit of the member.

(2) Subject to subsections (3) and (4), a pension benefit payable to, or the amount standing to the credit of, a member is to be divided: (

a) where a court has made an order for the division of family property pursuant to The Family Property Act , in accordance with that order; or (

b) where the member and the member’s spouse have entered into an agreement to divide their property that is an interspousal contract within the meaning of The Family Property Act , in accordance with that agreement.

(3) A division pursuant to subsection (2) of the amount standing to the credit of a member shall not reduce the amount standing to the credit of the member to less than 50% of the amount standing to the credit of the member prior to the division.

(4) A division pursuant to subsection (2) of a pension benefit provided by an amount standing to the credit of a member shall not reduce the amount of the pension benefit payable to the member after the division to less than 50% of the amount of the pension benefit payable to the member prior to the division.

(5) The amount to which the spouse or former spouse of a member is entitled on a division pursuant to subsection (2) of an amount standing to the credit of a member may be transferred to a pension plan or fund or a retirement savings plan or fund that does not permit contributions to be withdrawn: (

a) before the spouse or former spouse attains the age of 50 years; or (

b) for any purpose other than to provide a pension benefit to the spouse or former spouse. (6) Subsection (1) and

section 23 apply to any amount that is transferred pursuant to subsection (5).

(6.1) If the spouse or former spouse of a member does not elect to make a transfer pursuant to subsection (5), the spouse or former spouse may, with respect to the amount to which he or she is entitled on a division pursuant to subsection (2) of the amount standing to the credit of the member, exercise any right under the plan that the spouse or former spouse could exercise if he or she were a member.

(7) Neither the board nor the fund is liable to any person by reason of having complied with an order or agreement mentioned in this section. Objection to division 25(1) Except where an order or agreement mentioned in subsection 24(2) has been filed with the board by the member and the spouse or former spouse jointly, the board shall give a notice in writing to the member that an order or agreement has been filed.

(2) Unless the board receives a notice in writing within 30 days after providing the notice mentioned in subsection (1) that the member objects to the division on one of the grounds set out in subsection (3), the board shall comply with the order or agreement.

(3) The grounds for an objection pursuant to subsection (2) are: (

a) that the order or agreement has been varied or is of no force or effect; (

b) that the terms of the order or agreement have been or are being satisfied by other means; (

c) that proceedings have been commenced in a court of competent jurisdiction in Canada to appeal or review the order or to challenge the terms of the agreement.

(4) A member who submits a notice of objection pursuant to subsection (2) shall include with the notice documentary evidence to establish the grounds for objection.

(5) Where a notice of objection pursuant to subsection (2) is received by the board, the board may apply to the Court of Queen’s Bench for directions and, subject to subsection (6), the court may make any order that it considers appropriate in the circumstances.

(6) No order as to costs shall be made against the board or the fund. [ 5 ] Mr. Moore objected, but not to the Board. Nor did he seek judicial review of the Board’s decision. Instead, he filed an originating application pursuant to s. 25(5) of PEPPA and Rule 3-49(1)(d)(

i) of The Queen’s Bench Rules , seeking to limit Ms. Hurst’s share of the pension to the amount that had been owing to her at the date of separation plus interest as determined by the court. [ 6 ] Although he worded the issues a bit differently, the Chambers judge understood Mr. Moore’s application as giving rise to three issues: (

a) the application of s. 25 of PEPPA ; (

b) Mr. Moore’s objections to the Board’s calculation; and (

c) the appropriate remedy. As I see it, this matter turns on the first of these issues. [ 7 ] I infer from the Chambers judge’s reasons that he correctly interpreted s. 25(5) of PEPPA as granting only the Board the right to seek directions from the Court of Queen’s Bench and as not extending the same right to members of PEPP, like Mr. Moore. However, the Chambers judge wrote that, “as no objection was made to the fact Mr. Moore, and not the Board, initiated this application, I am prepared to consider it” (at para. 29). [ 8 ] In considering the application, the Chambers judge focused on the ground for objecting to a pension division under s. 25(3) (

c) of PEPPA , namely, “that proceedings have been commenced in a court of competent jurisdiction in Canada to appeal or review the order or to challenge the terms of the agreement”, referring here to the proceeding Mr. Moore had commenced under s. 25(5) of PEPPA . After considering Ms. Hurst’s objections to the validity of that proceeding on grounds other than jurisdiction, the Chambers judge wrote: [35] … I agree with Ms. Hurst’s counsel that in this application, Mr. Moore is not contesting the validity of the Agreement. However, in my view he is, in effect, contesting the

interpretation given to

Article 8.01 [of the Agreement] by the Board. As I understand Mr. Moore’s argument, he argues that the way in which the Board proposes to divide his pension between himself and Ms. Hurst contravenes certain equitable doctrines, most notably estoppel, and unjust enrichment. To this extent then, it may be said that Mr. Moore is challenging “the terms of the agreement” as interpreted by the Board. [36] I am, therefore, prepared to treat Mr. Moore’s application as properly brought under s. 25 of PEPPA , seeking directions as to how his pension fund should be divided.

As a result, I am authorized by ss. 25(5) to make any order I consider appropriate in the circumstances. [ 9 ] The Chambers judge’s reasoning on the questions of his jurisdiction to hear Mr. Moore’s application and his statutory power to grant the relief requested is self-evidently circular. In my view, his conclusions in these two respects are erroneous and are fatal to the validity of the Order . [ 10 ] While Ms. Hurst acknowledged the jurisdictional question when responding to Mr.

Moore’s appeal, she did not address it head- on (perhaps, because the Order worked in her favour) and she did not delve into its implications in the context of this Court’s jurisdiction

to hear and decide an appeal from the Order. Nonetheless, our system of civil justice does not operate on the basis that litigants mayconfer jurisdiction and power on the courts whenever they feel like it. This is particularly so when, like it has under PEPPA, theLegislature has statutorily limited the courts’ jurisdiction and the courts’ authority to interfere with decisions properly made within aspecialised, comprehensive administrative regime. Nothing in PEPPA authorizes a member of PEPP to put any matter or dispute as topension division before the Court of Queen’s Bench.

Indeed, the decisions of the Board in this regard are final: Decisions of board final 6 The board may determine any question as to the application,

interpretation or intent of a provision of this Act or of the regulations, andthe decision of the board is final. [11] Even though Mr. Moore and Ms. Hurst have chosen to step over the question at each level of court, the courts’ jurisdictioncannot be overlooked or ignored in this way. The Legislature has dictated that decisions of the Board are final and has made no allowancein PEPPA or otherwise for the courts to interfere with the Board’s decision-making outside of judicial review.

Nothing in PEPPA imbuesthe Court of Queen’s Bench with the jurisdiction or power to adjudicate or resolve disputes as to the division of a pension administeredunder PEPPA. While decisions of the Board nonetheless remain subject to judicial oversight, Mr. Moore did not seek judicial review.Moreover, his complaints about the way in which the Board would carry out the division of his pension do not engage the superior courts’constitutional jurisdiction over administrative bodies like the Board. Accordingly, I conclude the Chambers judge erred in law andjurisdiction when he proceeded to hear and determine Mr.

Moore’s application. [12] This conclusion has direct implications in this Court. Since the Chambers judge had no jurisdiction to hear Mr. Moore’sapplication, this Court lacks the jurisdiction to hear his appeal from the Order and the Court is not empowered to make a new order or toremit the matter to the Board for reconsideration. The Court of Appeal for Saskatchewan is a superior court of record having appellatejurisdiction (The Court of Appeal Act, 2000, SS 2000, c C-42.1, s 3(1)). All rights of appeal are statutory (Kourtessis v M.N.R., (SCC), [1993] 2 SCR 53).

This means the Court’s jurisdiction to hear appeals and other matters, as well as the power to grantrelief in respect thereof, is found primarily in statute law. As will become apparent, it is also important in this case to understand that theCourt is imbued, as a superior court of law, with a measure of inherent jurisdiction. [13] As to statute law, s. 10 of The Court of Appeal Act, 2000, provides that the Court has “appellate jurisdiction in civil and criminalmatters where an appeal lies to the court …” (emphasis added).

While an appeal broadly lies to this Court from any decision of the Courtof Queen’s Bench or a judge of that Court (The Court of Appeal Act, 2000, s. 7(2)), that right is curtailed where and to the extent that anenactment provides that there is no right of appeal or confers only a limited right of appeal (s. 7(3)). [14] PEPPA does not contain a statutory right to appeal to this Court. That is because PEPPA does not permit members of PEPP toput disputes as to pension division before the Court of Queen’s Bench.

Properly understood, this does not mean that members of PEPPhave a default right of appeal under s. 7(2) of The Court of Appeal Act, 2000; it means the Legislature has by enactment necessarily limitedthe right of appeal. As so limited, only the Board has the statutory right to seek directions from the Court of Queen’s Bench under s. 25(5)of PEPPA and, therefore, only the Board has a right to appeal under s. 7(2) of The Court of Appeal Act, 2000.

There is no other statutoryright of appeal in these circumstances. [15] In this case, none of the conditions precedent to the conferral of jurisdiction on the Court of Queen’s Bench (and, therefore, thisCourt) has occurred. Mr. Moore did not file a notice of objection with the Board pursuant to s. 25(2) of PEPPA and, therefore, the Boardcould not and did not apply to the Court of Queen’s Bench under s. 25(5) of PEPPA. As such, the Chambers judge had neither thejurisdiction to hear Mr.

Moore’s application nor the power to make the Order and therefore it follows that no appeal lies to this Court fromthat Order. [16] For these reasons, the proceeding in the Court of Queen’s Bench, and the Order itself, must be considered a nullity (Volhoffer vVolhoffer, (SK CA), [1925] 3 DLR 552 at 556–557 (Sask CA)). It is therefore in the interests of the administration ofjustice that this Court exercise its inherent jurisdiction as a superior court of law to set aside the Order.

This means that the Board’sdecision stands unaffected by what has occurred in this case. [17] In short, the Court has no jurisdiction to hear the appeal. I would, nevertheless, exercise the Court’s inherent jurisdiction to setaside the Order as a nullity. In these circumstances, I would make no order as to costs in this Court or in the Court of Queen’s Bench. “Caldwell J.A.” Caldwell J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Schwann J.A.” Schwann J.A.