Judgments

Decision Information

Decision Content

A-684-85
Joseph Granger (Applicant)
Employment and Immigration Commission (Respondent)
and
Office of Dubé J., Umpire (Tribunal)
INDEXED AS: GRANGER V. CANADA EMPLOYMENT AND IMMI GRATION COMMISSION
Court of Appeal, Pratte, Hugessen and Lacombe B.—Montreal, March 13; Ottawa, April 11, 1986.
Judicial review — Applications to review — Pension ben efits paid directly into RRSP not considered received, there fore not deducted from labour adjustment benefits paid pursu ant to s. 17 Labour Adjustment Benefits Act — Applicant irrevocably electing to receive pension up to age 65, to be paid directy into RRSP — Commission subsequently changing interpretation of s. 17 — Pension benefits considered received even if paid directly into RRSP — Umpire upholding Com mission's decision — Different interpretation not infringing rules of natural justice — Complaint turning on application of law rather than equity — Court limited to ascertaining validi ty of tribunal's decision based on grounds in s. 28 — Accept ance of argument of estoppel by representation on ground of equity would mean Court setting aside Commission's decision, rather than Umpire's — Court not sitting in equity in connec tion with remedy sought by applicant — Application dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 Labour Adjustment Benefits Act, S.C. 1980-81-82-83, c. 89, s. 17.
Estoppel — Commission advising applicant pension benefits paid directly into RRSP not deductible from labour adjust ment benefits — Applicant relying on information in electing manner of receipt of pension — Commission subsequently changing interpretation of s. 17 Labour Adjustment Benefits Act, resulting in deduction of pension benefits from labour adjustment benefits — Applicant submitting estoppel by representation on ground of equity — Commission not empow ered to amend law, therefore interpretations of law not having force of law — Commission without discretion in calculating benefits and deductions — Crown not bound by Department's representations if latter contrary to clear and peremptory provisions of law — Labour Adjustment Benefits Act, S.C. 1980-81-82-83, c. 89, ss. 15, 17, 26.
Unemployment insurance — Labour Adjustment Benefits Act providing for payment of benefits to employees under 65 who lost employment and received all unemployment insurance benefits — Commission advising applicant pension benefits paid directly into RRSP not deductible from labour adjust ment benefits paid pursuant to s. 17 Act — Applicant irrevoc ably electing to receive pension up to age 65, to be paid directly into RRSP — Commission subsequently modifying interpretation of s. 17 — Pension benefits considered received therefore deductible even if paid directly into RRSP — Labour Adjustment Benefits Act pari materia Unemployment Insurance Act — Principle established in unemployment in surance decisions to effect incorrect representations made to claimants by Commission employees not binding on Commis sion and not authorizing plea of estoppel, followed — Labour Adjustment Benefits Act, S.C. 1980-81-82-83, c. 89, s. 17 Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.
This is an application to set aside the Umpire's decision. The Labour Adjustment Benefits Act provides for the payment of benefits to certain employees under sixty-five who have lost their employment and received all the unemployment insurance benefits to which they are entitled. After determining the amount of benefits, the Commission must make the deductions specified in subsection 17(1). The applicant took early retire ment. The Commission advised the applicant that pension benefits paid directly into an RRSP were not considered to have been received, so that under section 17 they did not have to be deducted from the labour adjustment benefits paid. Relying on this information the applicant irrevocably elected to receive a pension up to age sixty-five and made the necessary arrangements for it to be paid directly into an RRSP. The applicant received labour adjustment benefits for some weeks without deductions being made for pension benefits which were being paid into an RRSP. The Commission then informed the applicant that it had changed its interpretation of section 17. From that point on the pension benefits paid into an RRSP would be deducted from labour adjustment benefits. The Umpire upheld the Commission's decision.
The applicant argued that the initial interpretation that the Commission had given of section 17 was not unreasonable, and that the Umpire infringed the rules of natural justice by allowing the Commission to change this interpretation, on which the applicant had relied in choosing the manner of receipt of his pension.
Held (Hugessen J. dissenting), the application should be dismissed.
Per Pratte J.: The rules of natural justice have nothing to do with this issue. The applicant's real complaint is that the Umpire applied the law rather than applying equity. The Commission has no power to amend the law, and therefore its interpretations of the law do not themselves have the force of law. Any commitment which the Commission may give wheth-
er in good or bad faith, to act in a way other than that prescribed by the law would be void and contrary to public order.
A judge is bound by the law. He cannot refuse to apply it, even on grounds of equity. The applicant cited Sous -Ministre du Revenu du Québec c. Transport Lessard (1976) Ltée and Reg. v. Inland Revenue Comrs., Ex parte Preston, [1985] A.C. 835. These cases are distinguishable as they were based on the assumption that the law gave the government a discretion in choosing the methods that it would use to collect taxes. The cases held that the government must not exercise this discretion in a wrongful or manifestly unjust manner. The Commission did not exercise its discretion improperly because the Commis sion had no discretion.
Per Lacombe J.: Canadian courts have consistently held, in fiscal matters, that the Crown is not bound by the representa tions made by representatives of the Department, if such representations are contrary to clear and peremptory provisions of the law.
Arbitrators' awards are also unanimous in applying this principle to unemployment insurance. As the Labour Adjust ment Benefits Act is pari materia and provides the same procedure for appealing decisions of the respondent Commis sion, there is no necessity to go beyond this well-established line of authority pursuant to the Unemployment Insurance Act, 1971. The Commission had no discretion in calculating the benefits, adjustment and deductions. It had no authority to initially grant an exemption which the Act had not given to the applicant.
The Court's power to intervene in an application for judicial review is limited to ascertaining the validity of the tribunal's decision based on any of the grounds in section 28. In accepting the applicant's argument of estoppel by representation on grounds of equity, the Court would be setting aside the decision of the respondent Commission rather than that of the Umpire, and the Court is not sitting in equity in connection with the remedy currently being sought by the applicant.
Per Hugessen J. (dissenting): The application should be allowed on the basis that the Commission's decision was an unlawful abuse of power. The courts used to say that however unfair the results might be Parliament intended that the statute should always be applied. Recently the English courts have recognized that in some circumstances, the theory of estoppel could be applied to bar government from acting in a way which would otherwise be permissible. The House of Lords has held that even the exercise of a statutory duty is open to judicial review if it occurs in circumstances where the application of the law itself might constitute an abuse of power.
If the Commission were a private person, the doctrine of estoppel by representation would apply to bar it from changing its position. As it is a government body, its decision, notwith standing that it is in accordance with the text of the statute, constitutes an abuse of power and is subject to judicial review. The decision is unlawful and the Umpire should not have revised the decision of the Board of Referees to the effect that the Commission's first interpretation was correct.
This is not a refusal by a court to apply the law. Because of the exceptional circumstances, another legal principle, that of the abuse of power, bars the authorities from applying certain of its provisions.
If the Umpire's decision were upheld, the circumstances of the case at bar would give rise to an action in damages against the Crown.
CASES JUDICIALLY CONSIDERED
APPLIED:
M.N.R. v. Inland Industries Limited, [1974] S.C.R. 514.
DISTINGUISHED:
Sous -Ministre du Revenu du Québec c. Transport Les- sard (1976) Ltée, indexed at [1985] R.D.F.Q. 322 (C.A.); Reg. v. Inland Revenue Comrs., Ex parte Preston, [1985] A.C. 835 (H.L.).
CONSIDERED:
Reg. v. Inland Revenue Comrs., Ex parte National Fed eration of Self-Employed and Small Businesses Ltd., [1982] A.C. 617 (H.L.); Municipal Council of Peterboro and Victoria v. The Grand Trunk Railway Co. (1859), 18 U.C.Q.B. 220; Rothwell v. The Queen, judgment dated December 23, 1985, Federal Court, Trial Division, T-1-83, not yet reported; Sydney J. Brookes, CUB 4909.
REFERRED TO:
R v Secretary of State for the Home Dept, ex p Khan, [ 1985] 1 All ER 40 (C.A.); Robertson v. Minister of Pensions, [1948] 2 All E.R. 767 (K.B.D.); Falmouth Boat Construction, Ltd. v. Howell, [1950] 1 All E.R. 538 (C.A.); Wells v. Minister of Housing and Local Govern ment, [1967] 2 All E.R. 1041 (C.A.); Lever (Finance) Ltd v Westminster Corpn, [1970] 3 All ER 496 (C.A.); Re L (A C) (an infant), [1971] 3 All ER 743 (Ch. D.); H.T.V. Ltd. v. Price Commission, [1976] I.C.R. 170 (C.A.); Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.); Windsor Motors Ltd. v. District of Powell River (1969), 4 D.L.R. (3d) 155 (B.C.C.A.); Woon, Bert W. v. Minister of National Revenue, [1951] Ex.C.R. 18; Stickel v. Minister of National Revenue, [1972] F.C. 672 (T.D.); rev'd [1973] F.C. 259 (C.A.); [1975] 2 S.C.R. 233.
COUNSEL:
Georges Campeau for applicant.
Guy LeBlanc and Carole Bureau for respon
dent.
SOLICITORS:
Campeau, Cousineau & Ouellet, Montreal, for applicant.
Deputy Attorney General of Canada for respondent.
The following is the English version of the reasons for judgment rendered by
PRATTE J.: The applicant is asking the Court to set aside a decision by an Umpire acting pursuant to section 26 of the Labour Adjustment Benefits Act (S.C. 1980-81-82-83, c. 89).
To understand the matter one must know some thing of the Labour Adjustment Benefits Act. It provides for the payment of "Labour adjustment benefit" to certain employees under sixty-five years of age who have lost their employment and received all the unemployment insurance benefits to which they are entitled. These benefits are paid by the respondent Commission, which in each case determines the amount in accordance with sections 15 et seq. However, the Commission must make the deductions specified in subsection 17(1) from the amount so determined:
17. (1) There shall be deducted from the weekly amount of labour adjustment benefit payable to a qualified employee an amount equal to
(b) one dollar for each dollar received that week by the employee as
(i) benefits under an employer pension plan earned by the employee as a result of any office or employment,
Decisions made by the Commission under this Act may be appealed to a board of referees and an umpire like decisions made pursuant to the Unem ployment Insurance Act, 1971 [S.C. 1970-71-72, c. 48].
The applicant had worked for Celanese Canada Inc. for a number of years when he left his job in February 1983. The pension plan covering him entitled him to receive, at his option, a lump sum to be paid to him immediately after his departure, a pension for his lifetime or a larger pension up to age sixty-five. Before making his decision (which under the terms of the pension plan would be irrevocable), the applicant consulted the respon dent Commission. He knew he was entitled to benefits under the Labour Adjustment Benefits Act; he wanted to know whether the amounts he
would be receiving under his employer's pension plan would be deducted from the amount of his labour adjustment benefits if these amounts, instead of being paid to him in the ordinary way, were paid directly into his Registered Retirement Savings Plan (RRSP) account. He was told that the Commission considered that pension benefits paid directly into an RRSP had not been received by the employee so long as they continued to be invested in this way; the Commission accordingly concluded that, under section 17, pension benefits paid into an RRSP did not have to be deducted from the amount of labour adjustment benefits. Relying on this information, the applicant chose to receive a pension up to age sixty-five and made the necessary arrangements for it to be paid directly into an RRSP.
On February 4, 1984 the applicant became en titled to receive labour adjustment benefits. The Commission paid them to him for some weeks without making any deduction for his pension benefits which were being paid into RRSP. On April 13, 1984, however, the Commission wrote telling him that it had changed its interpretation of section 17 and that it now considered that pension benefits had been received by a claimant even if they were paid directly into his RRSP account. The Commission had therefore decided that from now on it would deduct from the labour adjust ment benefits payable to the applicant the pension benefits which were paid into his RRSP by his former employer's pension plan. The applicant appealed this decision to a board of referees. The Board found in his favour and decided that, under section 17, pension benefit had not been received by a claimant if it was paid directly into his RRSP account. The Commission appealed to the Umpire, who reversed the Board of Referees and restored the Commission's decision. This decision by the Umpire is the subject of the appeal at bar.
Counsel for the applicant did not dispute that the interpretation given to section 17 by the Umpire was correct. He admitted that, under sec-
tion 17, the Commission must deduct from the amount of the labour adjustment benefits due the applicant the amount of the pension benefits paid into his RRSP account. He simply argued that the different interpretation that the Commission had initially given of section 17 was not unreasonable, and that in the circumstances the Umpire had infringed the rules of natural justice by allowing the Commission to change this interpretation, on which the applicant had relied in choosing to receive a pension that would be paid to him up to age sixty-five rather than for his lifetime. In sup port of this argument he cited the decision of the Quebec Court of Appeal in Sous -Ministre du Revenu du Québec c. Transport Lessard (1976) Ltée.'
That argument appears to me without merit.
To begin with, the rules of natural justice have nothing to do with this issue. The phrase "rules of natural justice" means the fundamental rules of procedure which all who are required to make quasi-judicial, and in many cases administrative,
' In that case, heard on August 28, 1985, [indexed at [1985] R.D.F.Q. 322 (C.A.)] the Quebec Minister of Revenue was claiming sales tax from a taxpayer who had purchased the assets of a company. Before making the purchase, the taxpayer had contacted a senior officer of the Department of Revenue for information, and been told that the proposed purchase would not be subject to the payment of any tax because it was a wholesale transaction which was not regarded as a retail sale within the meaning of the Act. The taxpayer made the pur chase in reliance on this interpretation. Shortly thereafter, the Minister of Revenue altered his interpretation of the Act and claimed the tax from the taxpayer. The Court of Appeal dismissed the claim: after finding that the first interpretation of the Act given by the Minister, though it may have been wrong, was not unreasonable, the Court held that in the circumstances the Minister could not claim the tax from the taxpayer without infringing the rules of natural justice. In arriving at this equitable conclusion, the Court relied on a recent judgment of the British Court of Appeal concerning the exercise of a purely discretionary power, R v Secretary of State for the Home Dept, ex p Khan, [1985] 1 All ER 40. It might also have relied on the even more recent decision of the House of Lords in Reg. v. Inland Revenue Comrs., Ex parte Preston, [1985] A.C. 835. In that case the House of Lords held, first, that the decision of the Inland Revenue Commissioners to claim a tax from a taxpayer could be reviewed and set aside by the courts if there had been an abuse of power, and second, that there was an abuse of power by the Commissioners when their earlier actions were such that they made the decision to recover the tax a manifest injustice.
decisions must observe. The applicant's real com plaint against the Umpire is not that he infringed the rules of natural justice, simply that he did not apply equity rather than the law. It is beyond question that the Commission and its representa tives have no power to amend the law, and that therefore the interpretations which they may give of that law do not themselves have the force of law. It is equally certain that any commitment which the Commission or its representatives may give, whether in good or bad faith, to act in a way other than that prescribed by the law would be absolutely void and contrary to public order. The applicant's argument therefore comes down to this: the Umpire erred because, so as to avoid causing injury to the applicant, he should have refused to apply the law.
Once the applicant's argument is seen in its true light it is clear that it must be dismissed. A judge is bound by the law. He cannot refuse to apply it, even on grounds of equity. Of course, this funda mental truth is difficult to reconcile with the judg ment of the Quebec Court of Appeal in Transport Lessard and the observations of the House of Lords in Ex parte Preston. 2 That is why I am inclined to think that those two judgments are not beyond criticism; however, I do not have to decide the point because, in my opinion, they have no application in the case at bar. In those two cases it was assumed that, in imposing on the government an obligation to collect taxes, the law had given it some discretion in choosing the methods that it would use in doing so.' All that the Court of Appeal and the House of Lords said was that the government must not exercise this discretion in a wrongful or manifestly unjust manner.
2 See preceding note.
3 I Reg. v. Inland Revenue Comrs., Ex parte National Federation of Self-Employed and Small Businesses Ltd., [1982] A.C. 617 (H.L.), at p. 636, Lord Diplock wrote regard ing the Inland Revenue Commissioners:
As respects the statutory powers and duties of the Board of Inland Revenue, these are described and dealt with in several of your Lordships' speeches. It would be wearisome if I were to repeat what already has been, and later will be, better said by
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In the case at bar the applicant did not argue that the Commission had exercised its discretion improperly, because here the law gives the Com mission no discretion: it simply imposes on it a duty to calculate and pay the benefits in accord ance with law.
In actual fact, the applicant would like to receive higher labour adjustment benefits than those to which he is entitled under the law in order to compensate himself for the damage resulting from the incorrect representations made to him by the Commission. It is possible, though the record does not definitely establish this, that the applicant may have suffered such damage: I think it is clear, however, that neither the Board of Referees nor the Umpire has jurisdiction to order compensation for such damage.
I would dismiss the application.
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The following are the reasons for judgment rendered in English by
HUGESSEN J. (dissenting): An individual applies to the authorities responsible for adminis tering a law whose reach is social in order to determine what effect it will have upon him. They give him incorrect information. Based on that information, he takes an irrevocable step. Subse quently the authorities change their mind and seek to use against the individual the very action they had themselves in large measure caused him to take. Will the law permit this? In my view, the answer must be no.
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others. All that I need say here is that the board are charged by statute with the care, management and collection on behalf of the Crown of income tax, corporation tax and capital gains tax. In the exercise of these functions the board have a wide managerial discretion as to the best means of obtaining for the national exchequer from the taxes committed to their charge, the highest net return that is practicable having regard to the staff available to them and the cost of collection.
In the same case, Lord Scarman said of the Commissioners (at pp. 650-651):
The Taxes Management Act 1970 places income tax under their care and management and for that purpose confers upon them and inspectors of tax very considerable discretion in the exercise of their powers.
The applicant had been employed by Celanese Canada Inc. for well over thirty-five years. In 1982 the company (and the textile industry in general) was going through a difficult period. So as to avoid lay-offs it encouraged its most senior employees, such as the applicant, to take early retirement. The applicant accepted his employer's offer and left his employment on February 4, 1983. He received unemployment insurance benefits during the year following his departure. At the end of that time, that is as of February 4, 1984, he became eligible for benefits pursuant to the Labour Adjustment Benefits Act (S.C. 1980-81-82-83, c. 89). He was also entitled to receive certain benefits from his employer under the latter's pension plan. Those benefits could, depending on an irrevocable choice made by the applicant, take the form of a life annuity, of a larger annuity paid to him until age sixty-five, or of a lump sum. Quite naturally the applicant wanted to know what impact these ben efits might have on his adjustment benefits, and whether that impact would differ according to the type of payment chosen. Accordingly, before the end of his unemployment insurance year and the beginning of his period of eligibility for adjustment benefits, he contacted the Canada Employment and Immigration Commission, the body respon sible for administering the Act.
The relevant provisions then in effect were sub- paragraph 17(1)(b)(i) and subsection (3) [as am. by S.C. 1980-81-82-83, c. 169, s. 7].
17. (1) There shall be deducted from the weekly amount of labour adjustment benefit payable to a qualified employee an amount equal to
(b) one dollar for each dollar received that week by the employee as
(i) benefits under an employer pension plan earned by the employee as a result of any office or employment,
(3) A qualified employee to whom labour adjustment ben efits are being paid shall submit to the Commission a report, in such form and manner and at such times as the Commission may direct, setting out the amounts received by the employee in the period to which the report relates as remuneration, income,
benefits, pension or allowance described in paragraph (1)(a) or (b) and such other information as the Commission may require.
The Commission replied to the applicant and gave him its interpretation of the legislation. This interpretation was contained in a document dated October 21, 1982, from the Director, Benefit Pro grams, to District Directors and CEC Directors:
[TRANSLATION] (3) If the employee converted his employer pension plan into a Registered Retirement Savings Plan (RRSP), would his LABs be affected?
It should be noted that section 17 of the Act speaks of money "received that week" and, in the French version, "un dollar à chaque dollar que reçoit cet employé". Accordingly, the time when the conversion occurs is not really important for the purposes of the LAB Act. Rather, what must be considered is the time when the benefits are or were paid. Thus, if the payment is made before the person receives LABs, the amount of the latter will not be affected. On the other hand, the total amount will have to be recovered from subsequent LABs only if the employee receives it at the same time as he receives LABs. However, if at the employee's request the employer pays the pension fund directly into a Registered Retirement Savings Plan, at whatever time, this amount, as it is not received by the employee, is not remuneration for the purpose of subsection 17(1)(b) of the Act. [Emphasis added.]
On the strength of this interpretation, the appli cant acted. He filed his application for adjustment benefits on November 22, 1983, and opted to receive a monthly annuity from his employer's pension plan payable from January 1984 until age sixty-five (1989) and asked that the monthly pay ments of this annuity, in the amount of $452.09, be made directly into a Registered Retirement Savings Plan (RRSP). Commencing February 4, 1984, he received, as planned, the full amount of the adjustment benefits without any deduction for the amount paid into his RRSP.
Shortly after, the Commission changed its mind. In a directive dated March 23, 1984, the essence of which was communicated to the applicant on April 13, 1984, we find:
Labour Adjustment Benefits—Retirement Pension Paid Into a Registered Retirement Saving Plan by an Employer.
The purpose of this memorandum is to inform you of a decision taken with respect to the above-mentioned retirement pension paid while the employee is in receipt of labour adjustment benefits.
Sometime in the past, we had advised certain regions that a retirement pension paid into a RRSP was not earnings for the
purpose of subparagraph 17(1)(b)(i) of the LAB Act when it was paid directly by the employer.
At that time, we were of the opinion that such a retirement pension was not received by the individual. Our Legal Counsel does not agree with this interpretation. It is felt that the individual is in fact in receipt of the pension even though it is put into the plan and furthermore he/she exercises a control of its use as he/she can at any time decide to retrieve his/her investment. Due to this legal opinion, we are obliged to change our previous directives.
For uniformity sake (sic), it was decided to notify all regions of this modification. Therefore, as soon as the CEC's are made aware of this new decision, they must immediately start deduct ing from LAB all these future pension payments made into a RRSP and this, in accordance with sub-paragraph 17(1)(b)(i) of the LAB Act. However, in these cases, no overpayments should be established for a period proceeding (sic) the applica tion of this directive by the CEC's.
The applicant appealed the decision of the Com mission applying this new policy to him. The Board of Referees ruled in his favour, and that the Commission's first interpretation was correct. This decision by the Board of Referees was reversed by the Umpire, who considered that only the second interpretation of section 17 was correct: hence the application to this Court pursuant to section 28 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10].
It is common ground that the first interpretation provided by the Commission is not supported by the wording of the statute itself and that only the second is valid. Accordingly, if the only question before the Umpire was as to the meaning to be given to section 17, he committed no error of law.
The Commission's position is, then, quite simple. It frankly admits that its first interpretation was wrong. It does not dispute the fact it gave this interpretation to the applicant and others, and that the applicant acted on the basis of such informa tion. As this information was incorrect, the acts which the applicant thought were to his advantage were really to his detriment. If he had obtained correct information at the proper time, he could have made a different and a more advantageous choice. However, it has not only the power but the duty to apply the text of the statute in all its rigour to the applicant's case: dura lex, sed lex—so much the worse for him!
In my view, this attitude is not acceptable. There may have been a time when the courts could close their eyes to reality and say that, however unfair the results might be, Parliament intended that the satute should always be applied. The individual relied at his peril on the interpretation of the legislation given by the authorities.
... the doctrine of estoppel can never interfere with the proper carrying out of the provisions of acts of parliament.
(Municipal Council of Peterboro and Victoria v. The Grand Trunk Railway Co. (1859), 18 U.C.Q.B. 220, at page 224.)
Fortunately, this principle no longer applies. In a series of judgments, mainly but not exclusively by Lord Denning, the English courts have recog nized that, in some circumstances, the theory of estoppel could be applied to bar government from acting in a way which would otherwise be permis sible. (See, as to this: Robertson v. Minister of Pensions, [1948] 2 All E.R. 767 (K.B.D.); Fal- mouth Boat Construction, Ltd. v. Howell, [ 1950] 1 All E.R. 538 (C.A.); Wells v. Minister of Hous ing and Local Government, [1967] 2 All E.R. 1041 (C.A.); Lever (Finance) Ltd v Westminster Corpn, [1970] 3 All ER 496 (C.A.); Re L (A C) (an infant), [1971] 3 All ER 743 (Ch. D.); H.T.V. Ltd. v. Price Commission, [1976] I.C.R. 170 (C.A.).)
It is true that none of these decisions involved an estoppel the effect of which was to relieve a public body of a duty imposed on it by law.
Recently however, in a leading case, the British House of Lords has held that even the exercise of a statutory duty is open to judicial review if it occurs in circumstances where the application of the law itself might constitute an abuse of power.
In In re Preston, [1985] A.C. 835 (H.L.), a taxpayer argued that, as a consequence of discus sions with the Treasury, he had withdrawn certain deductions claimed in his tax return on condition that no further enquiries be made concerning share sale transactions mentioned in the same return. Several years later, when the taxpayer could no longer claim the deductions he had thus given up,
the authorities started reassessment proceedings relating to the said transactions. The taxpayer filed an application for judicial review on the ground that the action of the authorities was unfair. In a unanimous judgment the House of Lords held that, even when done in the perform ance of a duty or the exercise of a power imposed or conferred by law, official action might be illegal as constituting an abuse. Speaking for all his brethren, Lord Templeman said [at page 864]:
... a taxpayer cannot complain of unfairness, merely because the commissioners decide to perform their statutory duties including their duties under section 460 to make an assessment and to enforce a liability to tax. The commissioners may decide to abstain from exercising their powers and performing their duties on grounds of unfairness, but the commissioners them selves must bear in mind that their primary duty is to collect, not to forgive, taxes. And if the commissioners decide to proceed, the court cannot in the absence of exceptional circum stances decide to be unfair that which the commissioners by taking action against the taxpayer have determined to be fair. The commissioners possess unique knowledge of fiscal practices and policy. The commissioners are inhibited from presenting full reasons to the court for their decisions because of the duty of confidentiality owed by the commissioners to each and every taxpayer.
The court can only intervene by judicial review to direct the commissioners to abstain from performing their statutory duties or from exercising their statutory powers if the court is satisfied that "the unfairness" of which the applicant complains renders the insistence by the commissioners on performing their duties or exercising their powers an abuse of power by the commissioners. [Emphasis added.]
The learned jurist then cited certain of the cases which I have mentioned above and went on [at pages 866-867]:
In the present case, the appellant does not allege that the commissioners invoked section 460 for improper purposes or motives or that the commissioners misconstrued their powers and duties. However, the H.T.V. case and the authorities there cited suggest that the commissioners are guilty of "unfairness" amounting to an abuse of power if by taking action under section 460 their conduct would, in the case of an authority other than Crown authority, entitle the appellant to an injunc tion or damages based on breach of contract or estoppel by representation. In principle I see no reason why the appellant should not be entitled to judicial review of a decision taken by the commissioners if that decision is unfair to the appellant because the conduct of the commissioners is equivalent to a breach of contract or a breach of representation. Such a decision falls within the ambit of an abuse of power for which in the present case judicial review is the sole remedy and an appropriate remedy. There may be cases in which conduct which savours of breach of conduct or breach of representation
does not constitute an abuse of power; there may be circum stances in which the court in its discretion might not grant relief by judicial review notwithstanding conduct which savours of breach of contract or breach of representation. In the present case, however, I consider that the appellant is entitled to relief by way of judicial review for "unfairness" amounting to abuse of power if the commissioners have been guilty of conduct equivalent to a breach of contract or breach of representations on their part.
The sole question which now falls to be determined is wheth er upon the true construction of the correspondence which passed between the appellant and Mr. Thomas in 1978, the commissioners, acting by Mr. Thomas, purported to contract or purported to represent that they would not thereafter re-open the tax assessments of the appellant for the years 1974-75 and 1975-76 if he withdrew his claims for interest relief and capital loss for those years. [Emphasis added.]
Let us now examine how the principles stated in Preston apply to the case at bar. The applicant was entitled to apply to the Commission, and the latter had a duty to give him information to the best of its knowledge. In reliance on the informa tion so obtained, he took irrevocable action to his detriment. If the Commission were a private person, the doctrine of estoppel by representation would apply to bar it from changing its position and now deciding to deduct from the adjustment benefits payable to the applicant the amounts paid into his RRSP. As it is a government body, its decision, notwithstanding that it is in accordance with the text of the statute, constitutes an abuse of power and is subject to judicial review. The deci sion is therefore unlawful and the Umpire should not have revised the decision of the Board of Referees.
Two comments before closing.
1. This is not a refusal by a court to apply the law: on the contrary. The law is in effect and applies to everyone. In particular it applies in all its rigour to persons who, though they have obtained incorrect information from the Commis sion, have not as a result altered their position to their detriment. In the applicant's case, however, because of the exceptional circumstances another legal principal, that of the abuse of power, bars the
authorities from applying certain of its provisions to him.
2. In my opinion, if the Umpire's decision were upheld, the circumstances of the case at bar would give rise to an action in damages against the Crown. (See Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465 (H.L.), and Wind- sor Motors Ltd. v. District of Powell River (1969), 4 D.L.R. (3d) 155 (B.C.C.A.). 4 ) I know of no better way of compensating the damage the appli cant may sustain than preventing it from happen ing, and that is what I propose to do.
For these reasons, I would allow the application, set aside the Umpire's decision and direct that the case be referred back to him to be decided on the basis that the Commission's decision was an unlawful abuse of power.
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The following is the English version of the reasons for judgment rendered by
LACOMBE J.: I concur with the reasons of Pratte J. for dismissing the appeal, and would add the following few observations.
As regards the judgments of the Quebec Court of Appeal and the House of Lords in Transport Lessard and Ex parte Preston, I need only say that those judgments were rendered in a different legis lative context from that of the Labour Adjustment Benefits Act (S.C. 1980-81-82-83, c. 89), which makes them inapplicable to the facts of the case at bar.
Both in Ex parte Preston and in its earlier judgment, Reg. v. Inland Revenue Comrs., Ex parte National Federation of Self-Employed and Small Businesses Ltd., [1982] A.C. 617, the
A recent decision of the Trial Division in the case of Rothwell v. The Queen, dated December 23, 1985, file No. T-1-83, [not yet reported] provides another example. The plain tiff had retired prematurely from the Public Service. Based on incorrect information obtained from the authorities, he delayed exercising his option as to the manner of payment of his pension. Strayer J. granted him damages on the basis of "negligent misrepresentation".
House of Lords indicated that the Inland Revenue Commissioners have a statutory discretion in administering fiscal legislation, which National Revenue Department representatives in Canada do not have.
In Canadian tax law, the courts have consistent ly held that the Crown is not bound by the representations made and interpretations given to taxpayers by authorized representatives of the Department, if such representations and interpre tations are contrary to clear and peremptory provi sions of the law: Woon, Bert W. v. Minister of National Revenue, [1951] Ex.C.R. 18, Stickel v. Minister of National Revenue, [1972] F.C. 672 (T.D.), 5 M.N.R. v. Inland Industries Limited, [1974] S.C.R. 514. The decision of the Supreme Court of Canada in the last case is still binding and must be followed by this Court until the Supreme Court itself has decided to overrule it. The case concerned whether it was possible to deduct certain contributions made to pension plans which had been given the Minister's prior approv al. The Minister later disallowed the deductions and assessed the taxpayer accordingly. After deciding that the pension plans did not meet the requirements of the Income Tax Act [R.S.C. 1952, c. 148], Pigeon J. disposed of the argument of estoppel by saying, at page 523:
However, it seems clear to me that the Minister cannot be bound by an approval given when the conditions prescribed by the law were not met.
The arbitrators' awards are also unanimous in applying this principle to unemployment insur ance. They have held that incorrect information which may be given by employees of the Employ ment and Immigration Commission to claimants on interpretation of the Act, and representations which they may make to claimants regarding their particular situations, which later turn out to be against their interests, are not binding on the Commission and do not authorize the claimants to raise the plea of estoppel against it. The remedy of a claimant who has been injured in this manner is an action in damages, which he may bring directly
5 Reversed by this Court and the Supreme Court of Canada on other grounds: [1973] F.C. 259 (C.A.); [1975] 2 S.C.R. 233.
in the ordinary courts of law, not through the roundabout way of judicial review.
For example, in Sydney J. Brooks, CUB 4909, Cattanach J., sitting as an Umpire, wrote:
This does not alter the bare and unadulterated fact that the claimant is not qualified for unemployment insurance benefits.
His remedy, if it can be established, is to institute an action in the Courts of the land against the officer of the Commission who advised him as he did and against the Commission, if the officer was acting within the scope of his employment, for damages based on misrepresentation. His remedy does not lie in an appeal to an umpire from the decision of the Board of Referees.
As the Labour Adjustment Benefits Act is pari materia, and provides the same procedure for appealing decisions of the respondent Commission to a board of referees, and thence to an umpire, there is no necessity to go beyond this well-estab lished line of authority pursuant to the Unemploy ment Insurance Act, 1971.
In the case at bar, the respondent Commission has no discretion in calculating the initial amount of labour adjustment benefits, their payment to claimants, their annual adjustment and the deduc tions that must be made from them. It must of necessity comply with the peremptory provisions of sections 14, 15, 16 and 17 of the Labour Adjust ment Benefits Act. This being so, it had no author ity to initially grant the applicant an exemption which the Act had not given him, through a misin terpretation of subparagraph 17(1)(b)(i) and sub section 17(3) of the Act.
In so doing, it may have caused an injury to the applicant, as it was in reliance on this misinterpre tation of the Act that he opted irrevocably, among the other alternatives available to him at the time, for the one which later turned out to be the least advantageous. In its decision of April 13, 1984 the respondent told him that it had changed its inter pretation and that from then on it would be deducting from his labour adjustment benefits the monthly payments of his retirement pension which his employer was paying to him directly into his Registered Retirement Savings Plan (RRSP).
The applicant cited subsections 26(2) and (3) of the Labour Adjustment Benefits Act as his basis for challenging the decision of the respondent and its new interpretation of the Act. The Board of Referees ruled in his favour, finding essentially that the respondent's first interpretation was in keeping with the Act, while the Umpire came to a diametrically opposite conclusion on the same point.
At the hearing in this Court, counsel for the applicant agreed that as a matter of analysis and interpretation of the legislation, the Umpire's deci sion was in law impeccable. By his application to set aside made pursuant to section 28 of the Fed eral Court Act, the applicant is asking this Court to set it aside nonetheless on the ground that the respondent Commission is now estopped from rais ing its second interpretation of the Act against him, because it is to his detriment.
The section 28 remedy cannot be used to effec tuate a kind of sui generis compensation between, on the one hand, the damage which the respondent allegedly caused the applicant by implementing its decision of April 13, 1984, and on the other, the deductions which it had a legal duty to make from the labour adjustment benefits pursuant to sub- paragraph 17(1)(b)(i) of the Labour Adjustment Benefits Act, when that provision is correctly inter preted, as it was in the Umpire's decision. The power of this Court to intervene in an application for judicial review is limited to ascertaining the validity of the decision of the tribunal in question based on any of the grounds mentioned in section 28. Once it is certain, as in the case at bar, that the Umpire's decision is unassailable in law, this Court must uphold it. For it to allow the applicant's application for review, it would have to find that the Umpire should have prevented the respondent Commission from applying the law in this case, even though his decision is entirely correct in law. In accepting the applicant's argument of estoppel by representation on grounds of equity, the Court would thereby be setting aside the decision of the respondent Commission rather than that of the Umpire, and the Court is not sitting in equity in connection with the remedy currently being sought by the applicant.
If necessary the applicant might, by a more appropriate procedure, argue that by its decision of April 13, 1984 the respondent Commission was seeking to apply the law in a manner which in his case was unfair, inequitable and indeed so wrong ful as to constitute an abuse of power. Further more, the evidence of the injury sustained is rather slim and its deficiencies would have to be made up by extrapolation and inferences which might be at least partly conjectural. As it stands at present, the record does not disclose the exact extent of the damage suffered by the applicant. Clearly, there fore, it is in any case premature to order compen sation at this stage.
I would dismiss the applicant's application.
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