Kenny v. Canada (Attorney General)

Kenny v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2005-11-08 Neutral citation 2005 FCA 370 File numbers A-75-05 Decision Content Date: 20051108 Docket: A-75-05 Citation: 2005 FCA 370 CORAM: RICHARD C.J. DÉCARY J.A. NADON J.A. BETWEEN: CARL KENNY Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard at Fredericton, New Brunswick, on November 8, 2005. Judgment delivered at Fredericton, New Brunswick, on November 8, 2005. REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A. Date: 20051108 Docket: A-75-05 Citation: 2005 FCA 370 CORAM: RICHARD C.J. DÉCARY J.A. NADON J.A. BETWEEN: CARL KENNY Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Fredericton, New Brunswick, on November 8, 2005) NADON J.A. [1] This is an appeal from the decision of Mr. Justice Phelan of the Federal Court dated January 20, 2005 (2005 FC 87) which dismissed the Appellant's judicial review application of the Minister's decision to deduct the sum of $50,314.01 from his CPP benefits of $54,414.39 and to remit the sum deducted to the Province of New Brunswick. [2] We are all agreed that this appeal should be dismissed. We are substantially in agreement with the reasons given by Mr. Justice Phelan in dismissing the Appellant's judicial review proceedings and would only add that it is implicit in the order and reasons of Madam Justice Layden-Stevenson dated March 25, 2004, that she was setting aside the Minister's first determination so as to ensure compliance with the Statute and Regulations. At paragraphs 23 and 24 of her reasons, Madam Justice Layden-Stevenson wrote: [23] (...) Subsection 65(2) of the CPP provides that the Minister may, in accordance with any terms and conditions that may be prescribed, deduct and pay. Thus, before the Minister could consider whether to exercise discretion, the Minister had to ensure compliance with respect to the prescribed conditions set out in section 76 of the regulations. Since there is nothing before me establishing or indicating compliance with the above-referenced legislated condition, the ministerial delegate's decision of January 24, 2003 must be quashed as requested. [24] The application for judicial review will therefore be allowed with costs to the applicant and the matter will be remitted to the Minister for redetermination in accordance with the statute and regulations. An order will so provide. [3] We are therefore of the opinion that the Minister's redetermination, whereby he assured himself that the four conditions prescribed by subsection 76(4) of the Regulations for the deduction and the payment to the Province of New Brunswick had been met, is in full compliance with the order made by Madam Justice Layden-Stevenson. [4] As a result, the appeal will be dismissed but, in the circumstances, without costs. "Marc Nadon" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-75-05 APPEAL FROM AN ORDER OF THE FEDERAL COURT DATED JANUARY 20, 2005, DOCKET NO. T-1107-04 STYLE OF CAUSE: CARL KENNY and A.G.C. PLACE OF HEARING: Fredericton, New Brunswick DATE OF HEARING: November 8, 2005 REASONS FOR JUDGMENT OF THE COURT: RICHARD C.J. DÉCARY J.A. NADON J.A. DELIVERED FROM THE BENCH BY: NADON J.A. APPEARANCES: John L. McAllister FOR THE APPELLANT Stephan Bertrand FOR THE RESPONDENT SOLICITORS OF RECORD: John L. McAllister Miramichi, New Brunswick FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENT