Schenkman v. Canada

Schenkman v. Canada

The appeal is dismissed because the appellant's core complaint challenges an administrative decision made under statutory authority and therefore the proper remedy is an application for judicial review (with the possibility of an extension of time), not a civil action; accordingly the statement of claim was properly vulnerable to dismissal for pursuing the wrong forum.

Citation
2007 FC 603
Parties
Plaintiff Appellant: Isac Schenkman; Defendant Respondent: Her Majesty the Queen in Right of Canada
Court
Federal Court
Jurisdiction
Canada
Judgment Date
6 June 2007
Procedural Posture
Appeal From Order Striking Statement of Claim Concerning Administrative Decision / Decision on Appeal (reasons for Order)
Outcome
Appeal dismissed without prejudice to appellant's right to seek an extension of time to commence an application for judicial review.
Legal Topics
Overpayment Recovery, Statutory Interpretation, Forum Selection, Limitation and Extension of Time, Procedural Fairness, Motion to Strike
Source Language
English
Administrative Law Employment Law Pension Law Civil Procedure Judicial Review Overpayment Recovery Statutory Interpretation Forum Selection +3 more

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Parties

Isac Schenkman

Plaintiff Appellant

Her Majesty the Queen in Right of Canada

Defendant Respondent

Procedural Posture

Appeal From Order Striking Statement of Claim Concerning Administrative Decision / Decision on Appeal (reasons for Order)

Legal Issues

  1. 1 Whether a challenge to the respondent's decision under the Public Service Superannuation Act and Regulations must be brought by application for judicial review
  2. 2 Whether the statement of claim discloses a reasonable cause of action or should be struck as an improper forum selection
  3. 3 Whether the respondent was authorized to deem and recover a pension overpayment under the PSSA and PSSR

Ratio Decidendi

The appeal is dismissed because the appellant's core complaint challenges an administrative decision made under statutory authority and therefore the proper remedy is an application for judicial review (with the possibility of an extension of time), not a civil action; accordingly the statement of claim was properly vulnerable to dismissal for pursuing the wrong forum.

Court Disposition

Appeal dismissed without prejudice to appellant's right to seek an extension of time to commence an application for judicial review.

Orders

  • Appeal dismissed without prejudice to the right of the appellant to seek an extension of time for the commencement of an application for judicial review.
  • If the parties cannot agree on costs, written submissions not exceeding three pages may be filed within twenty days of this Order.