[2000] 3 F.C. 265
A-709-97
The Minister of Human Resources Development (Applicant)
v.
Olivera Skoric (Respondent)
Indexed as: Canada (Minister of Human Resources Development) v. Skoric (C.A.)
Court of Appeal, Robertson, Sexton and Evans JJ.A. —Toronto, January 28; Ottawa, February 4, 2000.
Pensions — Surviving spouse’s benefit denied on ground deceased not contributing for minimum qualifying period under CPP — Law, as amended, governing spouse’s claim — Pension Appeals Board holding spouse entitled to benefit — Standard of review of Board decisions correctness — Board right in holding new law applicable — Words “within his contributory period” serving only to define number of years for which contributions must be made, not to prescribe when they must be made — Deceased’s contributions satisfying minimum qualifying period.
Administrative law — Judicial review — Certiorari — Minister seeking to set aside decision by Pension Appeals Board allowing surviving spouse’s benefit under Canada Pension Plan — Standard of review of Board decision correctness — Curial deference not appropriate for several reasons: no privative clause; Board having adjudicative function, no broad regulatory responsibilities; Board composed of judges; legal issues having application beyond facts of instant case; legal rights at issue — Only factor favouring curial deference that Parliament entrusted Board with appellate functions for benefits of economical, expeditious decision-making.
This was an application for judicial review of a decision by the Pension Appeals Board to allow an application for a surviving spouse’s benefit under subsection 44(1) of the Canada Pension Plan. The respondent’s husband, who was declared disabled since October 1986, was granted a disability pension payable four months from that date, that is in February 1987. He had made contributions to the Plan in the years 1981 to 1986 inclusive, and in January 1987. Shortly after his death in January 1988, his wife made a first application for a surviving spouse’s benefit which was refused on the ground that her deceased husband had not contributed for the minimum qualifying period prescribed by the Plan. She made a second application in 1993, also unsuccessfully. The Pension Appeals Board unanimously reversed the decision of the Review Tribunal and upheld her claim, which gave rise to the present application. Amendments to provisions of the Canada Pension Plan, which came into effect on January 1, 1987, were relevant herein. If the old law applies to the facts of this case, the contributory period would have started January 1, 1966 and ended January 1987, that is 22 years. If the new law applies, the contributory period ended at the close of 1986 when the contributor was “determined to have become disabled” under new subparagraph 44(2)(b)(ii), that is 21 years from January 1, 1966. The minimum qualifying period is defined as being “at least one third of the total number of years included either wholly or partly within his contributory period”. Three main issues were raised: (1) the standard of review of the Pension Appeals Board’s decisions; (2) whether the respondent’s entitlement to a surviving spouse’s benefit is governed by the law as it was before January 1987, or by the amendments to it; and (3) whether, if the new law is applicable, the contributions made by the deceased satisfied the minimum qualifying period.
Held, the application should be dismissed.
(1) The standard of review of Pension Appeals Board decision is correctness since a pragmatic or functional analysis indicates that this is not a situation in which curial deference is appropriate. There are a number of reasons for that. First, there is no privative clause restricting the scope of judicial review. Second, the Board has no broad regulatory responsibilities, but performs only the adjudicative function of hearing appeals from the Review Tribunal. Third, Board members must be judges of the Federal Court or of specified section 96 courts. Fourth, the issues herein involved the interpretation of the Board’s enabling statute and had an application beyond the facts of this dispute. And finally, the subject-matter of the dispute was the adjudication of an individual’s legal rights. On the other hand, a consideration favouring curial deference is the fact that Parliament probably entrusted the Board with appellate functions for the benefits of economical and expeditious decision-making. There was, however, no evidence in the record that the volume of appeals was such that Board members acquire considerable expertise regarding the Canada Pension Plan.
(2) The second issue was whether a person is “determined to be disabled” for the purpose of subsection 13(5) of the Act at the date assigned on the onset of the disability, or at the date of the determination that the person is disabled. The juxtaposition of subsections 13(5) and 13(4) suggests that subsection 13(5) refers to the date of the decision, not the onset of disability. A determination that a person is disabled is not the same as approving the application, because the applicant, although determined to be disabled, may not have satisfied other statutory requirements, such as the minimum qualifying period. The Board did not err when it held that the new law applied to the respondent’s claim.
(3) If the phrase “within his contributory period” qualifies only the immediately preceding words, “one third of the total number of years…wholly or partly” in paragraph 44(3)(a) of the Canada Pension Plan, there is no reason why a contribution made after the expiry of that period should not count in calculating the minimum qualifying period. If this is the correct interpretation, the respondent’s claim succeeds because her husband’s 1987 contribution would be included, thus bringing the period of contribution to seven years, which is one third of the 21 years’ contributory period. Paragraph 44(3)(b) provides that a person shall be considered to have made contributions for the minimum period “only if he has made contributions… for at least ten years”. There is no requirement that only contributions made within the contributory period count towards the ten years. To deprive a person of the benefit of a contribution that he has in fact made, simply because it was made outside the contributory period, would seem unfair and inconsistent with a statutory scheme in which eligibility is based on the contributions made. Accordingly, the words “within his contributory period” serve only to define the number of years for which contributions must be made, and not also to prescribe when they must be made. As to whether the minimum qualifying period of 7.3 years should be “rounded down” to seven years, the statute does not permit a part of a year of a minimum qualifying period to be “rounded down” to the nearest whole number if that would result in a period that was less than the statutorily required one third of the contributory period.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend the Canada Pension Plan and the Federal Court Act, S.C. 1986, c. 38, s. 13.
Canada Pension Plan, R.S.C. 1970, c. C-5, s. 44(1) (as am. by S.C. 1974-75-76, c. 4, s. 25; 1986, c. 38, s. 13), (2) (as am. idem).
Canada Pension Plan, R.S.C., 1985, c. C-8, ss. 19 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 11), 44(1) (as am. idem, s. 13), (2) (as am. idem), (3) (as am. by S.C. 1991, c. 44, s. 4), 53 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 20), 69 (as am. idem, s. 38), 83(1) (as am. by S.C. 1995, c. 33, s. 36), (5) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45), (5.1) (as enacted by S.C. 1995, c. 33, s. 36), 84(1) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45; S.C. 1990, c. 8, s. 46), (2) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1 [R.S.C., 1985, Appendix II, No. 5], s. 96
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(4)(c) (as enacted by S.C. 1990, c. 8, s. 5), 28(1)(d) (as am. idem, s. 8), (4) (as am. idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kerth v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1252 (T.D.) (QL).
REFERRED TO:
Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277; Minister of National Health and Welfare v. Zimmer, Appeal CP 2109; 11-4-91; Canada (Attorney General) v. Storto (1994), 174 N.R. 221 (F.C.A.).
APPLICATION for judicial review of a decision by the Pension Appeals Board allowing the respondent’s application for a surviving spouse’s benefit under subsection 44(1) of the Canada Pension Plan. Application dismissed.
APPEARANCES:
John Vassi-Nagy for applicant.
Zoran Samac for respondent.
SOLICITORS OF RECORD:
Deputy Attorney General of Canada for applicant.
McPhadden, Samac, Merner, Darling, Toronto, for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1] Olivera Skoric’s husband had been in receipt of a disability pension since February 1987. He died in January 1988 and later that month Ms. Skoric made her first application for a surviving spouse’s benefit under subsection 44(1) of the Canada Pension Plan, R.S.C. 1970, c. C-5 as amended [by S.C. 1986, c. 38, s. 13].
[2] The application was refused in April 1988 on the ground that Mr. Skoric had not contributed for the minimum qualifying period prescribed by the Canada Pension Plan. She made a second application for a surviving spouse’s benefit in 1993, but with no more success.
[3] However, in a decision of March 7, 1997 the Pension Appeals Board unanimously reversed the decision of the Review Tribunal and upheld her claim. The Minister of Human Resources Development has brought an application for judicial review under paragraph 28(1)(d) of the Federal Court Act, R.S.C., 1985, c. F-7 [as am. by S.C. 1990, c. 8, s. 8] to review and set aside the Board’s decision.
[4] The Minister alleges that the Board misinterpreted the relevant provisions of the Canada Pension Plan and thereby committed an error of law for which the decision may be set aside under paragraph 18.1(4)(c) [as enacted idem, s. 5] and subsection 28(4) [as am. idem, s. 8] of the Federal Court Act.
B. BACKGROUND
[5] The facts of this case are simple and not in dispute. Mr. Skoric had successfully applied for a disability pension in May 1987 and was determined to have been disabled from October 1986. His pension was payable four months from this latter date, that is in February 1987. He had made contributions to the Plan in the years 1981 to 1986 inclusive, and in January 1987.
[6] The law, unfortunately, is both contested and anything but simple. The case is complicated by the fact that in January 1987 amendments to provisions of the Plan came into effect [S.C. 1986, c. 38, s. 13] that are relevant to this case. The first issue to be decided is whether Ms. Skoric’s entitlement to a surviving spouse’s benefit is governed by the law as it was before January 1987 (the old law), or by the amendments to it.
[7] The Pension Appeals Board held that the amendments to the Canada Pension Plan that came into effect on January 1, 1987 [now R.S.C., 1985, c. C-8 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45)] (the new law) applied to Ms. Skoric’s claim. The Minister takes the position that the Board erred in law in so concluding and that Ms. Skoric is not entitled under the old law. And, in the alternative, even if the new law applies, Ms. Skoric does not qualify under it.
C. THE STATUTORY FRAMEWORK
[8] Determining eligibility for a disability pension or a surviving spouse’s benefit depends first on calculating the contributor’s “contributory period”. If the old law applies to the facts of this case, it is conceded that the contributory period would have started January 1, 1966 and ended January 1987, which was “the third month following the month in which [the contributor, that is, Mr. Skoric] is determined to have become disabled”: subparagraph 44(2)(b)(ii) [as am. by S.C. 1974-75-76, c. 4, s. 25].
[9] Further, because the statute deals in whole years and not parts of years, the contributory period is deemed to include the whole of 1987. Accordingly, if the old law applies to this case, the contributory period is 22 years.
[10] On the other hand, if the new law applies, the contributory period ended when the contributor was “determined to have become disabled”: new subparagraph 44(2)(b)(ii) [R.S.C., 1985 (2nd Supp.), c. 30, s. 30]. In Mr. Skoric’s case, this was in October 1986. Thus, if the new law applies to this case, the contributory period ended at the close of 1986, that is, 21 years from January 1, 1966.
[11] The legal significance of the length of the contributory period is that it serves as a basis for calculating the number of years in which the contributor must have made contributions to the Plan (the minimum qualifying period) for a surviving spouse’s benefit to be payable. For present purposes the minimum qualifying period is defined as being “at least one third of the total number of years included either wholly or partly within his contributory period”: paragraph 44(3)(a) [as am. by S.C. 1991, c. 44, s. 4].
[12] Finally, eligibility depends on the length of time that the contributor has made payments into the Canada Pension Plan. It is agreed that Mr. Skoric made payments in the years 1981 to 1986 inclusive, that is,
[13] Ms. Skoric’s argument before the Pension Appeals Board was that the new law applied to the claim and that the contributory period was therefore 21 years. Accordingly, by making contributions in seven years, Mr. Skoric had satisfied the minimum qualifying period of “at least one third of the contributory period”. The Board accepted this submission and held that Ms. Skoric was entitled to a surviving spouse’s benefit.
[14] I set out below the statutory provisions of most relevance to this application.
Canada Pension Plan, R.S.C. 1970, c. C-5 [sections 44(1)(b), (d) (as am. by S.C. 1974-75-76, c. 4, s. 25), (2)(b)(ii) (as am. idem)] (in force prior to January 1987)
44. (1) Subject to this Part,
…
(b) a disability pension shall be paid to a contributor who has made contributions for not less than the minimum qualifying period and is disabled;
…
(d) a survivor’s pension shall be paid to the surviving spouse, as determined pursuant to section 63, of a deceased contributor who has made contributions for not less than the minimum qualifying period, …
…
(2) …
(b) the contributory period of a contributor shall be the period
…
(ii) ending with the third month following the month in which he is determined to have become disabled,
An Act to amend the Canada Pension Plan and the Federal Court Act, S.C. 1986, c. 38, s. 13 (effective January 1, 1987)
13. …
(4) Subsection 44(2) of the said Act is repealed and the following substituted therefor:
…
“(2) For the purposes of paragraphs (1)(b) and (f),
…
(b) the contributory period of a contributor shall be the period:
(i) commencing January 1, 1966 or when he reaches 18 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),
…
(5) Subsection (4) applies only in respect of contributors who are determined to be disabled for the purpose of paragraph 44(1)(b) of the Canada Pension Plan on or after January 1, 1987.
Canada Pension Plan, R.S.C., 1985, c. C-8 [sections 44(3)a) (as am. by S.C. 1991, c. 44, s. 4), (b), 83(5) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45), (a) (as am. idem), (b) (as am. idem) (5.1) (as enacted by S.C. 1995, c. 33, s. 36), 84(1) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45; S.C. 1990, c. 8, s. 46), (a) (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45), (2) (as am. idem)]
44. …
(3) For the purposes of paragraphs (1)(c), (d) and (f), a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if he has made contributions:
(a) for at least one third of the total number of years included either wholly or partly within his contributory period, excluding from the calculation of that contributory period any month in a year after the year in which he reaches sixty-five years of age and for which his unadjusted pensionable earnings were equal to or less than his basic exemption for that year, but in no case for less than three years; or
(b) for at least ten years.
…
83. …
(5) The Pension Appeals Board shall consist of the following members to be appointed by the Governor in Council:
(a) a Chairman and a Vice-Chairman, each of whom shall be a judge of the Federal Court or of a superior court of a province; and
(b) not less than one and not more than ten other persons, each of whom shall be a judge of the Federal Court or of a superior, district or county court of a province.
(5.1) Subject to subsections (5.2) and (5.3), in addition to the members of the Pension Appeals Board for whom provision is made by subsection (5), any judge or former judge of the Federal Court or of a superior or district court of a province may, on the request of the Chairman of the Board made with the approval of the Governor in Council, act as a temporary member of the Board.
…
84. (1) A Review Tribunal and the Pension Appeals Board have authority to determine any question of law or fact as to:
(a) whether any benefit is payable to a person,
…
… the decision of the Pension Appeals Board, except for judicial review under the Federal Court Act, as the case may be, is final and binding for all purposes of this Act.
(2) The Minister, a Review Tribunal or the Pension Appeals Board may, notwithstanding subsection (1), on new facts, rescind or amend a decision under this Act given by him, the Tribunal or the Board, as the case may be.
D. ISSUES AND ANALYSIS
Issue 1: The standard of review
[15] It was more or less common ground between the parties that the standard of review applicable in this case is at the correctness end of the spectrum. I agree. A pragmatic or functional analysis clearly indicates that this is not a situation in which curial deference is appropriate.
[16] First, there is no privative clause restricting the scope of judicial review. Subsection 84(1) of the Plan provides that, “except for judicial review under the Federal Court Act”, the Board’s decisions are “final and binding for all purposes of this Act”. Since this provision expressly exempts judicial review from its scope, the effect of the finality clause can only be to restrict the jurisdiction that the Board would otherwise have had to reconsider its decisions pursuant to Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848. However, subsection 84(2) expressly permits the Board to reconsider its decisions “on new facts”.
[17] Second, the Board has no broad regulatory responsibilities, but performs only the adjudicative function of hearing appeals from the Review Tribunal: subsection 83(1) [as am. by S.C. 1995, c. 33, s. 36]. Third, the Chair, Vice-Chair and other members of the Board must be judges of the Federal Court or of specified section 96 [Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] courts: subsection 83(5); retired judges of these courts are eligible to be appointed as additional “temporary members”: subsection 83(5.1). Fourth, the questions in dispute in this case involve the interpretation of the Board’s enabling statute and have an application beyond the facts of this dispute. Fifth, the subject-matter of the dispute is the adjudication of an individual’s legal rights.
[18] On the other hand, a consideration pointing to curial deference is the fact that Parliament probably entrusted appellate functions to an administrative tribunal, the Pension Appeals Board, rather than to the Federal Court, to take advantage of the benefits of economical and expeditious decision-making, and more accessible process, normally offered by tribunals.
[19] In my view, the balance of the factors in the pragmatic or functional mix favours affording little deference to the Board’s interpretation of its constitutive legislation, especially in the absence of any evidence in the record indicating that members of the Board acquire considerable expertise in the Canada Pension Plan as a result of the volume of appeals that they hear and decide.
[20] This conclusion is consistent with that reached by Reed J. in Kerth v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1252 (T.D.) (QL) where, at paragraphs 18-23, she concluded on the basis of a pragmatic or functional analysis that the standard applicable to reviewing the propriety of the test used by a member of the Board when determining a request for leave to appeal to the Board “is closer to the non-deferential end of the spectrum”.
Issue 2: Is the pre-1987 or post-1986 law applicable?
[21] The transitional provision of the 1987 amendments to the Canada Pension Plan states:
13. …
(4) Subsection 44(2) of the said Act is repealed and the following substituted therefor:
…
(2) For the purposes of paragraphs (1)(b) and (f),
…
(b) the contributory period of a contributor shall be the period:
(i) commencing January 1, 1966 or when he reaches 18 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),
…
(5) Subsection (4) applies only in respect of contributors who are determined to be disabled for the purpose of paragraph 44(1)(b) of the Canada Pension Plan on or after January 1, 1987. [Underlining added.]
[22] The question is whether a person is “determined to be disabled” for the purpose of subsection 13(5) at the date assigned to the onset of the disability, or at the date of the determination that the person is disabled. If the former interpretation is correct, then the new law does not apply to Ms. Skoric’s claim because the onset of her late husband’s disability was October 1986. However, if the latter is correct it does, because the decision that Mr. Skoric was disabled was not made until 1987.
[23] While the words “determined to be disabled” may be capable of referring to either date, the juxtaposition of subsections 13(5) and 13(4) suggests that subsection 13(5) refers to the date of the decision, not the onset of disability. This is because subsection 13(4) amended the contributory period by providing that it ends “with the month in which [the contributor] is determined to have become disabled”. This would seem quite clearly to refer to the date of the onset of disability as determined by the Minister, and not the determination itself.
[24] In the absence of some compelling reason to the contrary, it is normally not consonant with good interpretative practice to attribute the same meaning to different words used in adjacent subsections of an elaborate statutory scheme, even though the French version of the statutory text does not use different tenses.
[25] I was not persuaded to overlook the different tenses used in the English version of the two subsections by counsel’s submissions that in other, non-proximate provisions of the Act the onset of disability, and not the date of its determination, is the relevant date.
[26] Nor was I persuaded by the argument that when Parliament intends to refer to a positive determination it uses the word “approval” as, for example, in section 69 [as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 38]. However, a determination that a person is disabled is not the same as approving the application, because the applicant, although determined to be disabled, may not have satisfied other statutory requirements, such as the minimum qualifying period.
[27] Another objection to the Board’s interpretation of subsection 13(5) is that the date of determination is arbitrary because it depends on the purely fortuitous circumstance of when the decision happens to be made. While this is true, it is also the case that the date of onset is equally fortuitous and not a matter within the control of the claimant. A statutory scheme that draws hard and fast temporal lines is inevitably apt to produce anomalies and a degree of arbitrariness.
[28] Further, the amendment to the ending date of the contributory period introduced in 1987 did not necessarily work to the benefit of claimants although, subject to the resolution of the next issue, that would be the effect in this case because of its unique circumstances: the onset of Mr. Skoric’s disability in one of the last three months of 1986 and the years in which he had made contributions to the Plan.
[29] For these reasons, it is my opinion that the Board did not err in law when it held that the new law applied to Ms. Skoric’s claim.
Issue 3: If the new law is applicable, did the contributions made by Mr. Skoric satisfy the minimum qualifying period?
[30] If the new law applies, the contributory period ended in 1986 and was 21 years in length. However, counsel for the Minister contended, only contributions made by the contributor within the contributory period can be counted towards the minimum qualifying period of one third of the length of that period. Accordingly, the contribution made by Mr. Skoric in 1987 must be ignored, with the result that he only made contributions in six years, that is in 1981 to 1986, which is less than one third of his contributory period of 21 years.
[31] Counsel relied for this proposition on a provision in the Canada Pension Plan that was not materially changed by the amendments that came into effect in 1987.
44. …
(3) For the purposes of paragraphs (1)(c), (d) and (f), a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if he has made contributions
(a) for at least one third of the total number of years included either wholly or partly within his contributory period ….; or
(b) for at least ten years. [Underlining added.]
[32] If the phrase “within his contributory period” qualifies only the immediately preceding words, “one third of the total number of years wholly … or partly”, then there is no reason why a contribution made after the expiry of that period should not count towards meeting the minimum qualifying period. If this is the correct interpretation, then Ms. Skoric’s claim succeeds because her husband’s 1987 contribution would be included, thus bringing the period of contribution to seven years, which is, of course, one third of the 21 years’ contributory period.
[33] The alternative interpretation is that the phrase “within his contributory period” also qualifies the words “made his contributions”, so that the contribution that Mr. Skoric made in 1987 must be disregarded because it was made after the end of the contributory period in 1986. On this basis, Ms. Skoric’s claim fails because Mr. Skoric only made eligible contributions in six years: that is, less than the minimum qualifying period of one third of the contribution period of 21 years.
[34] The Board concluded without reasons that Mr. Skoric had made contributions in seven years, and there were no representations to the contrary in the Minister’s written submissions to it.
[35] At the hearing of the application for judicial review, counsel for the Minister advanced no explanation in terms of the statutory scheme for interpreting the phrase “within his contributory period” as prescribing when contributions must be made if they are to count towards the minimum qualifying period. Rather, he was content to rely on the “plain meaning” of the statutory text.
[36] In my view it is relevant that the following paragraph, 44(3)(b), provides that a person shall be considered to have made contributions for the minimum period “only if he has made contributions … for at least ten years.” There is no requirement here that only contributions made within the contributory period count towards the ten years.
[37] Counsel did not suggest that anything in the scheme of the Act explained why contributions made for less than ten years had to be within the contributory period, but those made for ten years (or more, presumably) did not. Indeed, to deprive a person of the benefit of a contribution that he has in fact made, simply because it was made outside the contributory period, would seem unfair and inconsistent with a statutory scheme in which eligibility is based on the contributions made.
[38] Accordingly, in my view the words “within his contributory period” serve only to define the number of years for which contributions must be made, and not also to prescribe when they must be made. Hence, the Board did not err in law when it concluded that Mr. Skoric had made contributions for not less than the minimum qualifying period under the new law.
Issue 4: Should the minimum qualifying period of 7.3 years be “rounded down” to seven years?
[39] In view of my conclusions on Issues 2 and 3, I need not express a firm conclusion on what the position would have been if the old law had applied to the facts of this case. However, I would be inclined to accept the view advanced on behalf of the Minister. That is to say, the statute does not permit a part of a year of a minimum qualifying period to be “rounded down” to the nearest whole number if that would result in a period that was less than the statutorily required one third of the contributory period. Whether the part year is more or less than half seems irrelevant for this purpose.
[40] “Rounding up” is consistent not only with the plain meaning of subparagraph 44(2)(b)(ii), but also with the “rounding up” of part years that occurs in the calculation of the contributory period and the number of years in which contributions were made.
[41] It is also consistent with the conclusion reached by the Pension Appeals Board in Minister of National Health and Welfare v. Zimmer (Appeal CP 2109; April 11, 1991) and with obiter dicta by this Court in Canada (Attorney General) v. Storto (1994), 174 N.R. 221 (F.C.A.). I see no reason for taking a different view.
[42] For these reasons the application should be dismissed with costs.
Robertson J.A.: I agree.
Sexton J.A.: I agree.