Judgments

[1993] 3 F.C 518

A-1616-92

Line Beaudoin (Applicant)

v.

The Minister of National Health and Welfare and Jacinthe Smades (Respondents)

Indexed as: Beaudoin v. Canada (Minister of National Health and Welfare) (C.A.)

Court of Appeal, Stone, MacGuigan and Robertson JJ.A.—Ottawa, May 26 and 31, 1993.

Official languages — Official Languages Act, s. 14 entitles person to use official language of choice before federal tribunal — S. 15 obligates tribunal to ensure such evidence heard as requested — Unrepresented party’s bona fide request, on notice, for hearing in other official language must always be respected — Denial of request denial of natural justice, since fetters party’s ability to present case in own way.

Pensions — Canada Pension Plan defining “spouse” as person cohabiting with deceased contributor in conjugal relationship at time of contributor’s death, having so cohabited for continuous period of at least one year — Continuous period need not immediately precede death.

This was an application to set aside a decision of the Pension Appeals Board that surviving spouse benefits should be awarded to a legally separated wife rather than to the applicant, a common-law wife, on the ground of breach of natural justice. The applicant, who was not represented by counsel, requested a hearing in French, following on her notice of intervention in that language. Official Languages Act, section 14 entitles any person to use his or her official language of choice before a federal tribunal, and section 15 obligates the tribunal to ensure that such evidence is heard as requested. The Board decided that the hearing would take place in English. The applicant was “persuaded” to accept that conclusion. She sat mute except when asked direct questions and played no active role in the presenting of evidence. Upon the Board’s request, counsel for the Minister assisted the applicant with respect to the questioning of witnesses and the arguing of legal issues. He did not organize a factual case on the applicant’s behalf and could not have done so because he had never met the applicant or any of those present on her behalf.

“Spouse” is defined in the Canada Pension Plan as a person of the opposite sex who is cohabiting with the contributor in a conjugal relationship at the time of the contributor’s death, having so cohabited with the contributor for a continuous period of at least one year. The applicant had a relationship with the deceased contributor for nearly six years until his death at their shared apartment. The Board stated that the issue was whether the deceased contributor was cohabiting with the applicant in a conjugal relationship at the time of his death, having so cohabited for at least one year immediately prior to his death. It concluded that the applicant and the deceased did not cohabit in a conjugal relationship for the prescribed period of time or at the time of death.

Held, the application should be allowed.

The applicant was entitled to a hearing in French. Although the request for a hearing in French was not outright rejected, failure to take the request at face value had the same effect. An unrepresented party’s bona fide request, on notice, for a hearing in the other official language must always be respected in full, and its denial amounts to a denial of natural justice, since it fetters the requesting party’s ability to present a case in his or her own way.

The Board erred in its view as to “the prescribed period of time” as being immediately prior to death. Section 2 does not specifically state that the continuous period of one year must “immediately precede the death”.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 2 (as enacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 1), 58 (as am. idem, s. 26; S.C. 1991, c. 44, s. 12).

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 14, 15.

CASES JUDICIALLY CONSIDERED

APPLIED:

Minister of National Health and Welfare v. Decoux, Elaine (1991), C.E.B. & P.G.R. 6206 (Pen. Apps. Bd.).

APPLICATION to set aside a decision of the Pension Appeals Board as to surviving spouse benefits under the Canada Pension Plan. The application is allowed and the matter is returned to a different panel for redetermination.

COUNSEL:

Eugene Meehan for applicant.

Brian J. Saunders for respondent, Minister of National Health and Welfare.

Dougald E. Brown for respondent Jacinthe Smades.

SOLICITORS:

Lang Michener, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent Minister of National Health and Welfare.

Nelligan/Power, Ottawa, for respondent Jacinthe Smades.

The following are the reasons for judgment rendered in English by

MacGuigan J.A.: This is a contest between a legally separated wife and a common-law wife for surviving spouse benefits under the Canada Pension Plan (“the Act”), R.S.C., 1985, c. C-8.

Section 58 [as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 26; S.C. 1991, c. 44, s. 12] of the Act provides for the payment of pension benefits to “the surviving spouse of a contributor”. “Spouse” is defined by subsection 2(1) [as enacted by R.S.C., 1985 (2nd Supp.), c. 30, s. 1], the interpretation provision, as follows:

2. …

“spouse”, in relation to a contributor, means,

(a) except in or in relation to section 55 [relating to divorces and annulments]

…

(ii) a person of the opposite sex who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year …

…

and, in the case of a contributor’s death, the “relevant time”, for greater certainty, means the time of the contributor’s death;

The applicant had a relationship with the deceased contributor for nearly six years until he died from a heart attack in the shower of the apartment they shared in late 1989. Her claim to surviving spouse benefits was upheld by the Minister of National Health and Welfare and by a ministerial review committee, but on a further appeal by the respondent Jacinthe Smades to the Pension Appeals Board (“the Board”), the Board decided on November 3, 1992, that the benefits should be awarded rather to that respondent.[1]

The Board’s conclusion was expressed as follows (Application Record at page 58):

We have concluded that, on a balance, the evidence does not disclose that the deceased contributor and Mrs. Beaudoin cohabited in a conjugal relationship for the prescribed period of time or at the time of death.

The Board appears to be in error in its view as to “the prescribed period of time”, since it had previously stated the issue in the case as being “whether the deceased contributor was cohabiting with Line Beaudoin in conjugal relationship at the time of his death, having so cohabited for at least one year immediately prior to his death” [the emphasis is mine]. As another panel of the Board held—in my view correctly—in Minister of National Health and Welfare v. Decoux, Elaine (1991), C.E.B. & P.G.R. 6206, “Since s. 2 [of the Act] does not specifically state that the continuous period of one year must immediately precede the death , I do not think we should give it that interpretation” (at page 6207).

However, it is evident from the fact that the Board concluded that the requisite conjugal relationship did not exist “for the prescribed period of time or at the time of death” [the emphasis is again mine] that the Board’s decision related not so much to the timing as to the quality of the relationship. In fact, the Board went on to find that the deceased was residing at all relevant times, not with the applicant at all, but in a separate apartment.

The applicant’s essential case against the Board’s decision is based on an alleged lack of natural justice at the hearing itself.

The applicant succeeded in reaching an agreement with the counsel who had represented her before the Review Committee to represent her again before the Board only shortly before the hearing, and her counsel was not available on the date set for the hearing. The applicant apparently went to the hearing with the intention of requesting an adjournment, but failed to do so.

The applicant’s notice of intervention before the Board (which was added to the record, on consent, at the hearing before us) was written in French and at the beginning of the hearing she requested a hearing in French.

Ana Lopez’s affidavit of January 11, 1993, for the respondent described what transpired at the hearing from the respondent’s point of view (Respondent’s Application Record, at pages 1-3):

3. At the outset of the hearing, the Board asked if Ms. Beaudoin was present. Ms. Beaudoin identified herself. The Board asked if she was prepared to proceed and Ms. Beaudoin replied that she had brought a number of witnesses whom she wished to call. She also indicated that she wished to participate in the hearing in French.

4. On behalf of Mrs. Smades, Mr. Brown objected to proceeding in French on the grounds that Ms. Beaudoin had not given any prior notice that she wished to proceed in French nor had she even filed an Intervention indicating that she intended to participate in the hearing.[2] Mr. Brown indicated that he would be forced to request an adjournment if the case were to proceed in French since there was no interpretation available.

5. The Board then asked Ms. Beaudoin if she and her witnesses were able to speak and understand English. Ms. Beaudoin indicated that she and her witnesses were able to speak and understand English and that she did not want the case adjourned. The Board then directed that the hearing would proceed in English as scheduled.

6. Before any witnesses were called, Mr. Justice Foisy, who was a member of the Board, noted that the Minister of National Health & Welfare and Ms. Beaudoin were taking the same position on the appeal, namely that Ms. Beaudoin was entitled to the survivor benefit in question. In view of this, Mr. Justice Foisy asked Mr. Conway if he would be prepared to assist Ms. Beaudoin in the presentation of her evidence and arguments. Mr. Conway assured the Board that he would assist Ms. Beaudoin and, in effect, he acted as her counsel during the hearing. Mr. Conway cross-examined each of the witnesses called on behalf of Mrs. Smades and he examined in chief each of Ms. Beaudoin’s witnesses, including Ms. Beaudoin herself. At the conclusion of the evidence, Mr. Conway made submissions urging the Board to adopt the position advanced by Ms. Beaudoin ….

…

12. All of Ms. Beaudoin’s witnesses, including Ms. Beaudoin herself, expressed themselves clearly in English without difficulty.

The applicant’s affidavit of February 8, 1993, gives a more personal account of the hearing (Application Record, at page 19):

10. I have seen the affidavit which Ana Lopez wrote, dated January 11, 1993.

11. What she says about me asking to have the hearing in French is true. My English is not good. I am having problems when I speak English and I have hard time understanding when people speak English fast to me.

12. I assumed that the hearing would be in French, or at least bilingually. I told the Board that I wanted to speak French, but Jackie Smades’ lawyer would not let me. The Board said that the hearing would be in English.

13. I was scared. There was everybody there. The judges were sitting in front of me and there were lawyers all around. I did not know what to do. The Board decided that the hearing would go on in English. I was too afraid to ask if I could speak in French again.

14. I wanted to have the hearing heard later, but I didn’t have any lawyer with me, and I did not know how to do it myself.

15. Ana Lopez says that Tom Conway acted like my lawyer. I never met Tom Conway in my life, and he never met me. He know nothing about me and he didn’t even have a chance to talk to me or my friends that I bring along before he gave questions to us. The board told Tom Conway that he had to act like my lawyer, but he had no information about me. He did not even know the names of the witnesses I had brought along. Tom Conway told the Board that he was not prepared for that, but they made him go ahead anyway.

This was supplemented, as to the evidence available to the Board, by the applicant’s further affidavit of March 26, 1993 (Supplementary Application Record, Tab 2 at pages 1-2):

3. At the Review Committee hearing, I had a lot of papers which proved that I was living with Norm. I showed all of these papers to the Review Committee, and I felt that I made presentation of my case very fully and completely to the Review Committee. I think that the Review Committee made copies of my papers. The Review Committee look over all of the papers and agree that I was entitled to get the benefits.

4. However, I did not present any of these papers to the Pension Board because I assumed that they had already gotten them from the Review Committee and had already read them.

5. In fact, I did not present any written materials at all to the Pension Board except one paper: a letter from my doctor saying that I was too upset from the death of my husband Norm that I could not go to work. I did not present any other written material. I did not know I should have. I thought they already have copies.

6. The Pension Board was nothing like the Review Committee hearing. I did not present any of the material I presented at the Review Committee hearing. I did not have a lawyer like I did before. I was very confused and afraid during the whole Appeal hearing. I did not know how to create exhibits.

7. I did not present any of the papers that I presented at the Review Committee hearing, but showed the Pension Board one 11" by 14" photograph. It was a nice photograph of me, Norm and our son, Philippe.

8. I never receive the photograph back from the Pension Board. I think they still have it, but would like it back. I found another one that I put here [attached as Exhibit “A”].

9. I brought four friends to the Pension Hearing with me: Denis Daneau, Danielle Beaudoin, Louis Dubois and Helene Laframboise.

10. Denis is my brother-in-law. Danielle is my sister. Helene is a friend from daycare. Louise is a girlfriend of mine.

11. Each of my friends were asked at the last minute to say some words in front of the Board. They were each asked questions for five minutes or less. They had never met Tom Conway before in their lives and they were not prepared to answer the questions he asked. They were not prepared for the harder questions that Douglas Brown asked either. Tom Conway was the lawyer for the government who was asked by the judges to be try to be my lawyer too. I never met Tom Conway either before in my life.

Since there is no record of the proceedings, either written or taped, the Court is limited in its knowledge of what happened to what is set out in these affidavits. Although the opposing affidavits are far from congruent, they are also not wholly contradictory, and in my view it is possible to come to the following conclusions:

(1) The applicant requested a hearing in French, following on her notice of intervention in that language.

(2) The Board decided that the hearing would take place in English, a conclusion which the applicant was “persuaded”—I use the word neutrally—to accept.

(3) The applicant sat entirely mute except when she was asked direct questions, and played no active role in the presenting of evidence.

(4) The Board, seemingly aware of the disadvantages under which the applicant laboured, requested the counsel for the Minister to assist her as much as possible.

(5) That counsel did so with respect to the questioning of witnesses and the arguing of legal issues. He did not organize a factual case on the applicant’s behalf and could not have done so, because he had never met the applicant or any of those present on her behalf.

(6) The Board itself referred to the additional testimony it had before it clearly on the respondent’s side. It did not have evidence, particularly documentary evidence, which the applicant had presented at the earlier hearings.

(7) There can be no reasonable doubt that counsel for the Minister acted honourably, doing his best for the applicant within the limitations of his preparations and role, but in the last analysis he was in no sense counsel for the applicant. The applicant was admittedly at fault in not requesting an adjournment as she had apparently intended so that she could have counsel present. Nevertheless, although she did not request an adjournment, she did ask for a hearing in French. She was entitled to such a hearing and ought not to have been denied it. No doubt an adjournment for that purpose would have been disadvantageous to the respondent, who, if successful, would become entitled to benefits immediately rather than only retroactively at the ultimate end of the proceedings. But the right to a hearing in her own official language for the applicant must take precedence.[3]

One does not need to be a linguist to recognize that the mere comprehension of words in a second language is entirely different from the full ability to express oneself so as to advance a persuasive case. The respondent succeeded in having added to the record at the hearing before us the original statutory declaration under the Canada Pension Plan which the applicant had made in English. Quite apart from the fact that her use of English in that uncontroverted context could not preclude her later option to have her hearing before the board in French, her egregious errors in spelling and grammar in that form make clear her serious disadvantage in expressing herself in the English language.

It seems to me that, although the Board did not outrightly reject her request for a hearing in French, it effectively did the same thing by failing to take her request at face value. The legitimate objection by counsel for the respondent to proceeding in French, based on his own unilingualism, should have led to an adjournment. Their understandable desire to avoid an adjournment did not give the Board a mandate to engineer the continuance of the hearing in English.

An unrepresented party’s bona fide request, on notice, for a hearing in the other official language must always be respected in full, and its denial amounts to a denial of natural justice, since it fetters the requesting party’s ability to present a case in his or her own way. In the case at bar, the decision not to adjourn also entailed in the circumstances an infelicitous fiasco in which a mute applicant functioned only as a result of the generosity of another party’s counsel.

In the light of my holding on this point, I find it unnecessary to consider the other contentions raised by the applicant.

The application must therefore be allowed, the Board’s decision of November 3, 1992, set aside, and the matter returned to a differently constituted panel for rehearing and redetermination.

Stone J.A.: I agree.

Robertson J.A.: I agree.

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