A-273-01
2002 FCA 296
Minister of Human Resources Development (Applicant)
v.
Brenda Woodcock (Respondent)
Indexed as: Canada (Minister of Human Resources Development) v. Woodcock (C.A.)
Court of Appeal, Isaac, Sharlow and Malone JJ.A.-- Ottawa, April 17 and July 23, 2002.
Pensions -- Judicial review of Pension Appeals Board's decision respondent entitled to disability pension under Canada Pension Plan -- In 1997 respondent applying for disability pension, division of unadjusted pensionable earnings following divorce under s. 55.1 -- Deemed disabled 15 months before submitted application -- Not entitled to disability pension under s. 44(1)(b)(i), (ii) -- S. 44(1)(b)(iv) saving entitlement to disability pension only if s. 55.1 attribution of pension credits given retrospective effect -- No basis for refusal to accept s. 55.1 application in 1993 -- While not expressly permitting effective date of s. 55.1 attribution to predate application, nothing precluding retrospective attribution in case where s. 44(1)(b)(iv) requiring eligibility for disability pension to be determined on basis of hypothetical application -- Canada Pension Plan Regulations, s. 54.2 prescribing effective date of attribution having no purpose if effective date of attribution must always be date of divorce.
Construction of Statutes -- Respondent's entitlement to disability pension under Canada Pension Plan saved by s. 44(1)(b)(iv) only if s. 55.1 attribution of pension credits given retrospective effect -- No basis for refusal to accept s. 55.1 application in 1993 -- While not expressly permitting effective date of s. 55.1 attribution to predate application, nothing precluding retrospective attribution in case where s. 44(1)(b)(iv) requiring eligibility for disability pension to be determined on basis of hypothetical application -- Canada Pension Plan Regulations, s. 54.2 prescribing effective date of attribution having no purpose if effective date of attribution must always be date of divorce.
This was an application for judicial review of the Pension Appeals Board's decision that the respondent was entitled to a disability pension under the Canada Pension Plan as it read on September 2, 1997. Subparagraph 44(1)(b)(iv) of the Plan, which came into effect on June 26, 1992, provides for payment of a disability pension to a disabled contributor under age 65 to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled had an application for a disability pension been received prior to the time it was actually received. This provision was enacted to protect late applications from loss of eligibility for a disability pension. Section 55.1 provides for a division of unadjusted pensionable earnings following a divorce.
The respondent made contributions in respect of employment income in 1970, 1984 and 1989. She also had pension credits attributed to her relating to her ex-husband's earnings for 1989, 1990, 1991 and 1992 because she also applied under section 55.1 for an attribution of pensionable earnings in 1997 when she applied for the disability pension. Her contributory period ended on the date on which she was "deemed to have become disabled" i.e for the purposes of this analysis, June 2, 1996, which was 15 months before she submitted her application on September 2, 1997. It was common ground that subparagraph 44(1)(b)(iv) requires the Minister to determine whether an applicant would have qualified for a disability pension if the application had been submitted earlier than it was. The Minister argued that the respondent would not have qualified for a disability pension in 1993 because her status as a contributor for two of the three years prior to her date of disability was based solely on a section 55.1 attribution of pension credits that did not become effective until she applied for attribution in September 1997. The respondent argued that the Minister's interpretation should be rejected because it would defeat the objective of subparagraph 44(1)(b)(iv).
Held (Malone J.A. dissenting), the application should be dismissed.
Per Sharlow J.A. (Isaac J.A. concurring): The respondent's entitlement to a disability pension could be saved by subparagraph 44(1)(b)(iv) only if the Minister was obliged to give retrospective effect to the section 55.1 attribution of pension credits. There was no basis upon which the Minister could have refused to accept a section 55.1 application in 1993. With the attribution of pension credits, the respondent would have qualified for a disability pension under subparagraph 44(1)(b)(ii) in 1993. While nothing in the Canada Pension Plan states that the effective date of a section 55.1 attribution can predate the application for attribution, except in the situations contemplated by section 55.3 involving an applicant who suffers from mental incapacity, nothing precludes the Minister from recognizing a retrospective section 55.1 attribution in a case like this, where subparagraph 44(1)(b)(iv) requires eligibility for a disability pension to be determined on the basis of a hypothetical application as of some earlier date.
Canada Pension Plan Regulations, section 54.2 prescribes the effective date of the approval or taking place of a division of unadjusted pensionable earnings and of the attribution of pensionable earnings following a division. This regulation would have no purpose if the effective date of the division of unadjusted pensionable earnings following a section 55.1 application must always be the date of the divorce. However the interpretive approach adopted by the Pension Appeals Board did not require such an automatic retrospective effect in all cases. Rather a section 55.1 attribution would be given retrospective effect only where subparagraph 44(1)(b)(iv) applies because of a late disability pension application, and even then it would apply only if the facts of the case make it reasonable to presume, as in this case, that the application for the disability pension and the section 55.1 application would have been submitted at or about the same time, and there was no reason to conclude that the section 55.1 application would not have been accepted if it had been made at that time.
Per Malone J.A. (dissenting): The respondent's submission was based on the premise that she had an absolute entitlement to the attributed pension credits upon her divorce, even though she did not actually apply for them until 1997. That premise was flawed. Under section 55.1 the only right that arises automatically upon divorce is the right to apply for an attribution of pension credits. The attribution itself depends upon an application being made. It may be that the Minister cannot refuse attribution if an application is made and the conditions are met, but the attribution cannot be authorized until the application is made. Indeed there are circumstances in which the Minister may refuse to make a division or cancel a division, as for example, under subsections 55.1(5) and 55.2(3). Therefore prima facie the effective date of the attribution cannot predate the application. The Canada Pension Plan does not state that the effective date of a section 55.1 attribution can predate the application for attribution, except in the situations contemplated by section 55.3, involving an applicant who suffers from mental incapacity, and there is no basis for concluding that such automatic retroactivity is necessarily implied. An interpretation which favours automatic retroactivity places too great a strain on the language of the statute. Regulations, section 54.2 also contradicts the inference that a section 55.1 attribution is automatically or by necessary implication retroactive to the date of the divorce because it would have no purpose if the effective date of the division of unadjusted pensionable earnings following a section 55.1 application must always be the date of the divorce.
statutes and regulations judicially
considered
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 2(1) "contributor" (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 1), 42(2)(b) (as am. by S.C. 1992, c. 1, s. 23), 44(1)(b) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 13), (i) (as am. idem), (ii) (as am. idem), (iv) (as enacted by S.C. 1992, c. 2, s. 1), (2) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 13), 55.1 (as enacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 23; S.C. 1991, c. 44, s. 7; 1995, c. 33, s. 27), 55.2(3) (as enacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 23), 55.2(11) (as enacted idem), 55.3 (as enacted by S.C. 1991, c. 44, s. 9).
Canada Pension Plan Regulations, C.R.C., c. 385, s. 54.2 (as enacted by SOR/86-1133, s. 11; 93-290, s. 4).
cases judicially considered
referred to:
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; (1998), 36 O.R. (3d) 418; 154 D.L.R. (4th) 193; 50 C.B.R. (3d) 163; 33 C.C.E.L. (2d) 173; 221 N.R. 241; 106 O.A.C. 1; Sarvanis v. Canada (2002), 210 D.L.R. (4th) 262; 284 N.R. 263 (S.C.C.).
APPLICATION for judicial review of the Pension Appeals Board's decision that the respondent was entitled to a disability pension under the Canada Pension Plan as it read on September 2, 1997. Application dismissed.
appearances:
Katia Bustros for applicant.
Linda E. Tranter for respondent.
solicitors of record:
Deputy Attorney General of Canada for applicant.
Lanark County Legal Clinic, Perth, for respondent.
The following are the reasons for judgment rendered in English by
[1]Sharlow J.A.: The respondent Brenda Woodcock is trying to establish her entitlement to a disability pension under the Canada Pension Plan, R.S.C., 1985, c. C-8, as it read on September 2, 1997 when her application was submitted. The Minister rejected the application on the basis that Ms. Woodcock did not meet the contributory requirements for a disability pension. Ms. Woodcock appealed to a review tribunal which, in a decision dated June 9, 1999, allowed her appeal. The Minister sought and obtained leave to appeal to the Pension Appeals Board. In a decision dated January 22, 2001, the Pension Appeals Board dismissed the Minister's appeal. The Minister has applied for judicial review of that decision. It is my view that, for the reasons that follow, the Minister's application for judicial review should be dismissed.
[2]At the heart of this case is subparagraph 44(1)(b)(iv) of the Canada Pension Plan, which was enacted by S.C. 1992, c. 2, section 1 and came into effect on June 26, 1992. Subparagraph 44(1)(b)(iv) reads as follows [s. 44(1)(b) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 13)]:
44. (1) Subject to this Part,
. . .
(b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, who is disabled and who
. . .
(iv) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled had an application for a disability pension been received prior to the time the contributor's application for a disability pension was actually received;
[3]Prior to the enactment of subparagraph 44(1)(b)(iv), a person could lose entitlement to a disability pension by submitting the application more than 15 months after becoming disabled. That was because of paragraph 42(2)(b) [as am. by S.C. 1992, c. 1, s. 23], which reads:
42. (1) . . .
(2) For the purposes of this Act,
. . .
(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
[4]The purpose of subparagraph 44(1)(b)(iv) was explained as follows when the amending legislation was introduced ("Questions and Answers on the Bill to Amend the Canada Pension Plan", appended to a memorandum from the Minister of National Health and Welfare to Members of the House of Commons and Senators dated February 1992, Applicant's Application Record, Volume 1, page 221, at pages 224-226):
| 1. Q. What change to the Canada Pension Plan is being proposed? |
| A. A new provision is being added to protect late applications from a loss of eligibility for a disability pension. Late applicants, persons who became disabled at a time when they satisfied the contributory requirements of the Plan, but who delayed applying, will no longer lose their entitlement to a disability pension. |
. . .
| 3.Q. How is it that I could lose eligibility to a disability pension just by applying late? |
| A. What the eligibility rules mean is that if you have been working regularly for a number of years and leave the work force, you may have as much as 5 or 6 years of continued CPP protection for disability benefits. However, because the rules specify that you cannot be considered disabled more than 15 months prior to the date of application, you might be entitled to a benefit when you became disabled, but may no longer be able to meet the contributory requirements by the time you finally apply. |
| 4.Q. How will the new provision actually work to help late applicants? |
| A. Late applicants will no longer be automatically denied a disability pension because they have failed to meet the contributory requirements of the Plan. Instead, a determination will be made as to whether or not they could have applied and received a disability benefit at a time when they had coverage under the Plan. If the answer is yes, then a disability pension may be awarded. |
[5]The other provision that bears on this appeal is section 55.1 [as eneacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 23; S.C. 1991, c. 44, s. 7], the relevant parts of which read as follows:
55.1 (1) Subject to this section and sections 55.2 and 55.3, a division of unadjusted pensionable earnings shall take place in the following circumstances:
(a) following the issuance of a decree absolute of divorce, a judgment granting a divorce under the Divorce Act or a judgment of nullity of a marriage, on the Minister's being informed of the decree or judgment, as the case may be, and receiving the prescribed information;
[6]The purpose of section 55.1 is self-evident. It is intended to facilitate the division of "unadjusted pensionable earnings" (colloquially referred to as "pension credits") between former spouses following a divorce. Other parts of section 55.1 permit similar divisions after the breakdown of a marriage or similar conjugal relationship.
Ms. Woodcock's entitlement if subparagraph 44(1)(b)(iv) of the Canada Pension Plan had not been enacted
[7]To understand the issues that arise in this case, it is helpful to consider how Ms. Woodcock's entitlement to a disability pension would have been determined if subparagraph 44(1)(b)(iv) had not been enacted. In this regard, it must be noted that, because Ms. Woodcock's application was rejected on the basis that she failed to meet the contributory requirements, no determination has been made as to whether or not she is disabled, or was disabled when the application was made or in any prior year. It appears to be her position that she was disabled in or perhaps before 1993. However, for the purposes of this part of the analysis (which is intended to consider the situation without regard to the provision for late applications), I will assume in her favour that her disability commenced on June 2, 1996, 15 months before she submitted her application on September 2, 1997.
[8]In order to qualify for a disability pension, a person must be a "contributor" as defined in subsection 2(1) of the Act [as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 1]:
2. (1) In this Act,
. . .
"contributor" means a person who has made an employee's contribution or a contribution in respect of his self-employed earnings, and includes a person the amount of whose earnings on which a contribution has been made for a year under this Act calculated as provided in subparagraph 53(b)(i) exceeds zero and a person to whom unadjusted pensionable earnings have been attributed under section 55, 55.1 or 55.2;
[9]Ms. Woodcock clearly is a contributor. She made contributions in respect of her own employment income in 1970, 1984 and 1989.
[10]Ms. Woodcock is also a person to whom pension credits have been attributed under section 55.1. That is because, when she applied for a disability pension on September 2, 1997, she also applied for an attribution of pension credits based on her marriage to Edward A. Woodcock from November 4, 1989 to August 30, 1993. Her application for an attribution of pension credits was accepted, and pension credits relating to Mr. Woodcock's earnings for 1989, 1990, 1991 and 1992 were attributed to Ms. Woodcock under section 55.1.
[11]Ms. Woodcock, as a contributor, would have been entitled to a disability pension on September 2, 1997 if she met the conditions in either subparagraph 44(1)(b)(i) [as am. idem, s. 13] or subparagraph 44(1)(b)(ii) [as am. idem]. Those provisions read as follows:
44. (1) Subject to this Part,
. . .
(b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, who is disabled and who
(i) has made contributions for not less than the minimum qualifying period,
(ii) has made contributions for at least two of the last three calendar years included either wholly or partly within his contributory period,
[12]The application of either subparagraph 44(1)(b)(i) or subparagraph 44(1)(b)(ii) requires a determination of Ms. Woodcock's "contributory period" under subsection 44(2) [as am. idem], the relevant parts of which reads as follows:
44. (1) . . .
(2) For the purposes of paragraphs (1)(b) and (e),
(a) a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if he has made contributions
(i) for at least five of the last ten calendar years included either wholly or partly within his contributory period, or
(ii) where there are fewer than ten calendar years included either wholly or partly within his contributory period, for at least five of those years; and
(b)the contributory period of a contributor shall be the period
(i) commencing January 1, 1966 or when he reaches eighteen years of age, whichever is the later, and
(ii) ending with the month in which he is determined to have become disabled for the purpose of paragraph (1)(b),
[13]Ms. Woodcock was born in 1952, and so her contributory period commenced in 1970. It ended on the date on which she was "deemed to have become disabled", defined in paragraph 42(2)(b) as the date of actual disability, except that the date on which a person is "deemed to have become disabled" cannot be earlier than 15 months prior to the date of application. That date would be June 2, 1996. (As explained above, I am assuming for purposes of this part of the discussion that she became disabled on that date; otherwise her application would, but for subparagraph 44(1)(b)(iv), be considered to be out of time.)
[14]Thus, if Ms. Woodcock had become disabled on June 2, 1996, her contributory period would have ended in 1996. Would she have qualified for a disability pension under subparagraph 44(1)(b)(i)? No, because she was not a contributor for at least five of the last ten years of her contributory period, i.e., from 1987 to 1996. Even taking into account her section 55.1 attributed pension credits, she would have been a contributor for only four of the last ten years of her contributory period (1989, 1990, 1991 and 1992).
[15]Alternatively, would she have qualified under subparagraph 44(1)(b)(ii)? No, because she was not a contributor for at least two of the last three years of her contributory period, i.e., from 1994 to 1996 inclusive. Again, even taking into account her section 55.1 attri-buted pension credits, the last year in which she was a contributor was 1993.
[16]Thus, it is clear that Ms. Woodcock cannot qualify for a disability pension unless subparagraph 44(1)(b)(iv) comes to her aid.
The effect of subparagraph 44(1)(b)(iv)
[17]For the reasons explained below, Ms. Woodcock's entitlement to a disability pension is saved by subparagraph 44(1)(b)(iv) if, but only if, the Minister is obliged to give retrospective effect to her section 55.1 attribution of pension credits.
[18]It is common ground that subparagraph 44(1)(b)(iv) requires the Minister to determine whether an applicant would have qualified for a disability pension if the application had been submitted earlier than it was. For the purposes of considering this question, I will abandon the assumption that Ms. Woodcock became disabled on June 2, 1996 and assume, as counsel for Ms. Woodcock has done, that she became disabled in 1993. That is the assumption most favourable to her, because it places the date of her disability immediately after the last year for which she has two consecutive years of pension credits.
[19]According to the Minister, if Ms. Woodcock had applied for a disability pension in 1993, she would not have qualified because her status as a contributor for two of the three years prior to her date of disability (that is, 1991 and 1992) is based solely on a section 55.1 attribution of pension credits that did not become effective until she applied for attribution on September 2, 1997. The Minister argues that the Pension Appeals Board erred in law in reaching a contrary conclusion.
[20]Counsel for Ms. Woodcock supports the decision of the Pension Appeals Board. She argues, citing Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, that the Minister's interpretation should be rejected because, it would defeat the objective of subparagraph 44(1)(b)(iv). She relies upon the agreed principle that subparagraph 44(1)(b)(iv) requires the Minister to determine whether Ms. Woodcock would have qualified for a disability pension if her application had been submitted in 1993. It bears repeating that this principle flows from the undisputed fact that subparagraph 44(1)(b)(iv) is intended to relieve applicants for a disability pension from the prejudice they would otherwise suffer because of a late application.
[21]If Ms. Woodcock had known in 1993 that she might qualify for a disability pension, and had applied for it at that time, she would also have applied at that time for an attribution of pension credits under section 55.1. The conditions for attribution were met at that time and it must follow that the attribution would have been authorized. Therefore, under the hypothetical question posed by subparagraph 44(1)(b)(iv), viewed realistically in light of Ms. Woodcock's actual circumstances, her status as a contributor for two of the three years prior to 1993 would have been recognized immediately, and she would have qualified for a disability pension under subparagraph 44(1)(b)(ii).
[22]It is clear that under section 55.1, the only right that arises automatically upon divorce is the right to apply for an attribution of pension credits, and the attribution itself depends upon an application being made. There are circumstances in which the Minister may refuse to make a division or cancel a division, for example, under subsections 55.1(5) [as enacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 23; S.C. 1995, c. 33, s. 27] and 55.2(3) [as enacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 23] of the Act. However, in this case, none of those circumstances exist, or would have existed in 1993. Therefore, there is no basis upon which the Minister could have refused to accept a section 55.1 application submitted by Ms. Woodcock in 1993.
[23]Nothing in the Canada Pension Plan states that the effective date of a section 55.1 attribution can predate the application for attribution (except in the situations contemplated by section 55.3 [as enacted by S.C. 1991, c. 44, s. 9], involving an applicant who suffers from mental incapacity). On the other hand, there is nothing in the Canada Pension Plan that would preclude the Minister from recognizing a retrospective section 55.1 attribution in a case like this one, where subparagraph 44(1)(b)(iv) requires eligibility for a disability pension to be determined on the basis of a hypothetical application as of some earlier date. The Minister has not suggested any basis for concluding that such an approach could cause prejudice to Ms. Woodcock's former spouse. Nor has the Minister argued that this manner of applying subparagraph 44(1)(b)(iv) would result in unreasonable or absurd consequences in other situations.
[24]It is arguable that this interpretation of the relevant provisions is not consistent with section 54.2 [as enacted by SOR/86-1133, s. 11; 93-290, s. 4] of the Canada Pension Plan Regulations, C.R.C., c. 385, as amended to September 2, 1997, which reads as follows:
54.2 (1) For the purposes of the Act,
(a) the effective date of the taking place of a division of unadjusted pensionable earnings is the last day of the month in which the information prescribed for the purposes of paragraph 55.1(1)(a) of the Act, and that is listed in subsection 54(2), is received by the Minister; or
(b) the effective date of the approval of a division of unadjusted pensionable earnings is the last day of the month in which the application referred to in paragraph 55.1(1)(b) or
(c) of the Act is received.
(2) The effective date of the attribution of pensionable earnings following the division is the first day of the month following the month in which the effective date of the taking place or approval of the division falls.
[25]This Regulation was made pursuant to subsection 55.2(11) [as enacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 23] of the Canada Pension Plan, which authorizes the Governor General in Council to make regulations prescribing the effective date of the approval or taking place of a division of unadjusted pensionable earnings and of the attribution of pensionable earnings following a division. This regulation would have no purpose if the effective date of the division of unadjusted pensionable earnings following a section 55.1 application must always be the date of the divorce.
[26]However, the interpretive approach adopted by the Pension Appeals Board does not require such an automatic retrospective effect in all cases. Rather, a section 55.1 attribution would be given retrospective effect only where subparagraph 44(1)(b)(iv) applies because of a late disability pension application, and even then it would apply only if the facts of the case make it reasonable to presume, as in this case, that the application for the disability pension and the section 55.1 application would have been submitted at or about the same time, and there is no reason to conclude that the section 55.1 application would not have been accepted if it had been made at that time.
Conclusion
[27]For these reasons, this application for judicial review should be dismissed. As no costs have been sought, none should be awarded.
Isaac J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
[28]Malone J.A. (dissenting): I respectfully dissent from the majority reasons of Sharlow J.A. in this application for judicial review. My reasons follow.
[29]The respondent was born in 1952, and her contributory period commenced in 1970. That period ended on the date on which she was "deemed to have become disabled", as defined in paragraph 42(2)(b) as the date of actual disability, except that the date on which a person is "deemed to have become disabled" cannot be earlier than 15 months prior to the date of application, i.e., June 2, 1996. For the reasons given by Sharlow J.A., I will also assume for the purposes of this part of my analysis that the respondent became disabled on that date.
[30]If the respondent had become disabled on June 2, 1996, her contributory period would have ended in 1996. She would have qualified for a disability pension under subparagraph 44(1)(b)(i) if she had been a contributor for at least five of the last ten years of her contributory period, i.e., from 1987 to 1996. Alternatively she would have qualified under subparagraph 44(1)(b)(ii) if she had been a contributor for at least two of the last three years of her contributory period, i.e., from 1994 to 1996.
[31]The respondent was a contributor in respect of her own employment for three years, 1970, 1984 and 1989, but only one of those years falls within the ten-year period. She had additional pension credits attri-buted to her under section 55.1, but only for three additional years falling within the ten-year period, i.e., 1990 to 1992. It follows that she could not have qualified for a disability pension under subparagraph 44(1)(b)(i) because she was a contributor for only four of the years from 1987 to 1996. Furthermore, she could not have qualified under subparagraph 44(1)(b)(ii) because she was not a contributor for any of the last three years of her contributory period, namely 1994 to 1996.
[32]I agree with Sharlow J.A. that the respondent cannot qualify for a disability pension unless subparagraph 44(1)(b)(iv) operates in her favour. Entitlement to a disability pension is preserved by that subparagraph only if the Minister is obliged to give retroactive effect to her section 55.1 attribution of pension credits. Subparagraph 44(1)(b)(iv) requires the Minister to determine whether an applicant would have qualified for a disability pension if the application had been submitted earlier than it was. For this part of my analysis, I will abandon the assumption that the respondent became disabled on June 2, 1996 and assume that she became disabled in 1993. This assumption, advanced by her counsel, places the date of her disability immediately after the last year for which she has two consecutive years of pension credits.
[33]The Minister urges that, if the respondent had applied for a disability pension in 1993, she would not have qualified because her status as a contributor for two of the three years prior to her date of disability, namely 1991 and 1992, is based solely on a section 55.1 attribution of pension credits that did not become effective until she applied for attribution on September 2, 1997. The Pension Appeals Board is said to have erred in law in reaching a contrary conclusion.
[34]Based on Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, counsel for the respondent argues that the Minister's analysis is incorrect because, unless Ms. Woodcock's section 55.1 attribution is given retroactive effect, the objective of subparagraph 44(1)(b)(iv) would be curtailed. Subparagraph 44(1)(b)(iv) is said to be intended to relieve disabled persons from losing entitlement to a disability pension merely because of a late application. This submission is based on the premise that the respondent had an absolute entitlement to the attributed pension credits upon her divorce in 1993 even though she did not actually apply for them until 1997. If that is so, a section 55.1 attribution should be treated as though it had been made in 1993, no matter when the application for attribution was made.
[35]I am unable to accept that premise. In my analysis, under section 55.1, the only right that arises automatically upon divorce is the right to apply for an attribution of pension credits. The attribution itself depends upon an application being made. It may be that the Minister cannot refuse attribution if an application is made and she is satisfied that the conditions are met, but she cannot authorize the attribution until the application is made. Indeed, there are circumstances in which the Minister may refuse to make a division or cancel a division, as for example, under subsections 55.1(5) and 55.2(3) of the Act, which read in part as follows:
55.1 (1) . . .
(5) Before a division of unadjusted pensionable earnings is made under this section, or within the prescribed period after such a division is made, the Minister may refuse to make the division or may cancel the division, as the case may be, if the Minister is satisfied that
(a) benefits are payable to or in respect of both spouses or former spouses; and
(b) the amount of both benefits decreased at the time the division was made or would decrease at the time the division was proposed to be made
. . .
55.2 (1) . . .
(3) Where
(a) a spousal agreement entered into on or after June 4, 1986 contains a provision that expressly mentions this Act and indicates the intention of the spouses or former spouses that there be no division of unadjusted pensionable earnings under section 55 or 55.1,
(b) that provision of the spousal agreement is expressly permitted under the provincial law that governs the spousal agreement, and
(c) that provision of the spousal agreement has not been invalidated by a court order,
the Minister shall not make a division under section 55 or 55.1.
[36]It follows, then, that prima facie the effective date of the attribution cannot predate the application. The Canada Pension Plan does not state that the effective date of a section 55.1 attribution can predate the application for attribution, except in the situations contemplated by section 55.3, involving an applicant who suffers from mental incapacity, and there is no basis for concluding that such automatic retroactivity is necessarily implied. In my view, even under the broad, purposive approach mandated by Rizzo & Rizzo Shoes Ltd., supra, and more recently in Sarvanis v. Canada (2002), 210 D.L.R. (4th) 263 (S.C.C.), at paragraph 24, an interpretation which favours automatic retroactivity on the particular facts of this case places too great a strain on the language of the statute.
[37]I take comfort in this conclusion by having reference to another part of the statutory scheme that contradicts the inference that a section 55.1 attribution is automatically or by necessary implication retroactive to the date of divorce. In particular, I refer to section 54.2 of the Canada Pension Plan Regulations, C.R.C., c. 385 as amended to September 2, 1997, which would have no purpose if the effective date of the division of unadjusted pensionable earnings following a section 55.1 application must always be the date of the divorce.
[38]Accordingly, this application for judicial review should be allowed without costs and the decision of the Pension Appeals Board vacated, and the matter should be referred back to a differently constituted panel for redetermination in accordance with these reasons.