Boudreau v. Canada (Minister of National Revenue)

Boudreau v. Canada (Minister of National Revenue) Court (s) Database Federal Court of Appeal Decisions Date 2005-09-20 Neutral citation 2005 FCA 304 File numbers A-248-05 Notes Digest Decision Content Date: 20050920 Docket: A-248-05 Citation: 2005 FCA 304 CORAM: ROTHSTEIN J.A. NADON J.A. SHARLOW J.A. BETWEEN: SUZANNE BOUDREAU Applicant and MINISTER OF NATIONAL REVENUE, ATTORNEY GENERAL OF CANADA Respondents Heard at Ottawa, Ontario, on August 22, 2005. Order delivered at Ottawa, Ontario, on September 20, 2005. REASONS FOR ORDER BY: SHARLOW J.A. CONCURRED IN BY: ROTHSTEIN J.A. NADON J.A. Date: 20050920 Docket: A-248-05 Citation: 2005 FCA 304 CORAM: ROTHSTEIN J.A. NADON J.A. SHARLOW J.A. BETWEEN: SUZANNE BOUDREAU Applicant and MINISTER OF NATIONAL REVENUE, ATTORNEY GENERAL OF CANADA Respondents REASONS FOR ORDER SHARLOW J.A. [1] The applicant Suzanne Boudreau has commenced an application for judicial review of the decision of the Minister of National Revenue to issue a notice of intention to revoke, as of January 1, 1996, the registration of a pension plan established by Cryptic Web Information Technology Security Inc. Ms. Boudreau is seeking an order quashing the Minister's decision or, alternatively, an order prohibiting the Minister from revoking the plan retroactively to a date earlier than October 16, 2003 (the date of the notice of intention to revoke). Soon after commencing her application for judicial review, Ms. Boudreau filed a notice of motion seeking certain interlocutory orders. [2] In response to Ms. Boudreau's motions, the Crown filed a motion record that contests those motions and also contains a notice of motion seeking an order quashing Ms. Boudreau's application for judicial review on the basis that this Court lacks the jurisdiction to hear it. Ms. Boudreau contests the Crown's motion. [3] A hearing was convened to hear oral argument on the question of jurisdiction. If that question is resolved in the Crown's favour, this application for judicial review will be quashed. Because that could result in the final disposition of this application for judicial review, argument on the preliminary question of jurisdiction was heard by three judges: Federal Courts Act, R.S.C. 1985, c. F-7, section 16. Facts [4] To understand the context of this case, it is necessary to be aware of certain of the tax characteristics of pension plans, the tax consequences of the registration of a pension plan under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), and the tax consequences of the revocation of the registration of a pension plan. [5] Generally, any payment made by any pension plan, registered or unregistered, is taxable if it is made to or for the benefit of a member. That is so whether the payment is made in the form of a periodic pension payment, or in a lump sum (paragraph 56(1)(a) of the Income Tax Act). [6] A number of income tax advantages are obtained by the registration of a pension plan under the Income Tax Act. First, any contribution made to a registered pension plan by a member of the plan is deductible, subject to certain limitations, in computing the member's income for income tax purposes. Second, income earned on investments held in a registered pension plan is exempt from income tax as long as the investment is held in the plan (provided certain conditions are met). Third, in a number of situations, money can be transferred from one registered pension plan to another registered pension plan (or certain other recognized tax deferred plans) for the benefit of a member, without the member incurring a tax liability in respect of the transfer. [7] The revocation of the registration of a pension plan does not cause the pension plan to cease to exist. It remains in existence, but the special tax advantages of registration would be lost. It would no longer be possible for a member to make deductible contributions to the plan. Income earned on investments held in the plan would be taxable. It would no longer be possible to make a tax-free transfer of money from the pension plan to another plan. Such a transfer of funds probably would be taxed in the hands of the member, either as a pension benefit under paragraph 56(1)(a) of the Income Tax Act or as a distribution from a trust under paragraph 12(1)(m) of the Income Tax Act, depending upon the circumstances. If funds are transferred from an unregistered pension plan to a registered plan, the member could be at risk of double taxation because the transfer itself would be taxable, and any payments subsequently made out of the transferee plan to the member could also be taxable. [8] The revocation of the registration of a pension plan occurs as the last step in a statutory process (the process is discussed in more detail below). The Minister takes the position that it is possible in certain circumstances for the effective date of the revocation of the registration of a pension plan to predate the completion, or even the commencement, of the revocation process. The Minister apparently also takes the position that where the effective date of the revocation of a pension plan predates the revocation process, the tax advantages of registration may be lost to the members of the plan retroactively. [9] It is not necessary at this stage to determine whether the Minister's position on the retroactive effect of the revocation of the registration of a pension plan is correct. It is sufficient to note that if the Minister is correct, then the members of a registered pension plan could bear a significant unexpected tax burden if the registration of the plan is revoked, and an even greater burden if the registration is revoked retroactively. The problem of the potential retroactive effect of the revocation of the registration of a pension plan is at the core of Ms. Boudreau's application for judicial review. [10] Ms. Boudreau was at one time an employee of the federal government, and was also a contributor to the public service superannuation plan maintained for federal government employees under the Public Service Superannuation Act, R.S. 1985, c. P-36. Ms. Boudreau says that for a period of time in 1999 and 2000, when she was no longer a federal government employee, she was an employee of Cryptic Web and became a member of the Cryptic Web pension plan. During that period, the Cryptic Web pension plan was a registered pension plan. [11] It appears that the Cryptic Web pension plan was registered effective January 1, 1996. In 1999, arrangements then in place permitted a federal government employee who moved to employment in the private sector to apply to have money transferred from the public service superannuation plan to a registered pension plan maintained by or for the new employer. Ms. Boudreau took advantage of those arrangements when she left her employment with the federal government, and money was transferred to the Cryptic Web pension plan for Ms. Boudreau's benefit. There is a dispute between Ms. Boudreau and the Crown as to whether the correct amount of money was transferred, but that dispute is not before this Court. [12] Sometime after 2000, the money that had been transferred to the Cryptic Web pension plan for Ms. Boudreau's benefit was transferred again, apparently in a manner that complied with the relevant law, to another registered pension plan. [13] On October 16, 2003, the Minister sent to Cryptic Web a notice of intention to revoke the registration of its pension plan, effective January 1, 1996, pursuant to paragraphs 147.1(11)(a) and (j) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). The relevant portion of those provisions read as follows: 147.1 (11) Where, at any time after a pension plan has been registered by the Minister, 147.1 (11) Lorsque l'une des situations suivantes se produit après que le ministre a agréé un régime de pension: (a) the plan does not comply with the prescribed conditions for registration [...] a) le régime n'est pas conforme aux conditions d'agrément réglementaires [...] the Minister may give notice (in this subsection and subsection 147.1(12) referred to as a "notice of intent") by registered mail to the plan administrator that the Minister proposes to revoke the registration of the plan as of a date specified in the notice of intent, which date shall not be earlier than the date as of which, le ministre peut informer l'administrateur du régime par avis -- appelé "avis d'intention" au présent paragraphe et au paragraphe (12) --, envoyé en recommandé, qu'il entend retirer l'agrément du régime à la date précisée dans l'avis d'intention, qui ne peut être antérieure aux dates suivantes: (j) where paragraph 147.1(11)(a) applies, the plan failed to so comply [...]. j) si l'alinéa a) s'applique, la date où le régime cesse d'être conforme [...]. [14] The Minister's position, as set out in the notice of intention to revoke the registration of the Cryptic Web pension plan, is that one of the conditions of registration had never been met. That condition was that the primary purpose of the plan be the provision of retirement benefits to individuals in respect of their services as employees. The Minister alleges that the members of the Cryptic Web pension plan were never its employees. [15] Cryptic Web has appealed the notice of intention to revoke. That is its right under paragraph 172(3)(f) of the Income Tax Act, the relevant portions of which reads as follows: 172 (3) Where the Minister [...] 172 (3) Lorsque le ministre: [...] (f) [...] gives notice under subsection 147.1(11) to the administrator of a registered pension plan that the Minister proposes to revoke its registration [...] f) [...] envoie à l'administrateur d'un régime de pension agréé l'avis d'intention prévu au paragraphe 147.1(11), selon lequel il entend retirer l'agrément du régime; [...] [...] the administrator of the plan or an employer who participates in the plan, in a case described in paragraph 172(3)(f) [...], may appeal from the Minister's decision, or from the giving of the notice by the Minister, to the Federal Court of Appeal. [...] l'administrateur du régime ou l'employeur qui participe au régime, dans une situation visée aux alinéas f) ou f.1), peuvent interjeter appel à la Cour d'appel fédérale de cette décision ou de la signification de cet avis. [16] The facts of this case are superficially similar to the facts in Loba Ltd. v. Canada (Minister of National Revenue - M.N.R.), [2005] 1 C.T.C. 6, 2004 D.T.C. 6680, leave to appeal refused on April 7, 2005, [2004] S.C.C.A. No. 540 (QL). The Loba appeal was dismissed on the basis that it was reasonable for the Minister, on the evidence before him, to conclude that the conditions for registration were not met as of the date of the intended revocation. [17] The Cryptic Web appeal has yet to be heard. At the request of the parties, it was held in abeyance pending the outcome of the Loba appeal. For reasons that are not relevant to the issue now before this Court, it is still in abeyance, and it is not now clear whether it will proceed. [18] In May of 2005, Ms. Boudreau sought leave to intervene in the Cryptic Web appeal. As I understand it, her interest in the Cryptic Web appeal is based on the suggestion, implied in certain statements in the notice of intention to revoke the registration of the Cryptic Web pension plan, that if the registration is revoked as of January 1, 1996 (as the notice of intent indicates), there may be retroactive tax consequences to individuals like Ms. Boudreau who became members of the plan while it was registered. [19] It is suggested, for example, that one of the consequences of the revocation of the registration of the Cryptic Web pension plan as of January 1, 1996, would be that money transferred for Ms. Boudreau's benefit to the Cryptic Web pension plan from the public service superannuation plan after January 1, 1996, would be taxable in her hands as of the date of the transfer (assuming her tax return for the relevant year is not statute barred). It is also suggested that all income earned on investments held in the plan in 1996 and subsequent years would become taxable. If that is the case, it seems likely that the tax would be borne indirectly by Ms. Boudreau and the other members of the pension plan, in the sense that the tax would be paid out of money held in the plan. It is not clear whether the Minister would take the position that additional tax consequences would result from the subsequent transfer of money from the Cryptic Web pension plan for the benefit of Ms. Boudreau to another pension plan. [20] Ms. Boudreau's motion to intervene was dismissed on July 7, 2005 "for prematurity". As her motion was not dismissed on the merits, it remains open to Ms. Boudreau to re-apply for leave to intervene in the Cryptic Web appeal, if it proceeds. [21] On June 1, 2005, Ms. Boudreau filed the notice of application for judicial review that commenced these proceedings, citing subsection 147.1(13) of the Income Tax Act. The issue now raised by the Crown is whether this Court has the jurisdiction to hear her application. Discussion [22] The Federal Court of Appeal is a statutory court. It has no jurisdiction except the jurisdiction given to it by an Act of Parliament. Section 27 of the Federal Courts Act, R.S.C. 1985, c. F-7, gives this Court the jurisdiction to hear appeals from the Federal Court and appeals from the Tax Court of Canada. Section 28 of the Federal Courts Act, gives this Court the jurisdiction to hear and determine applications for judicial review of specified decisions of the federal boards, commissions and tribunals. No decision of the Minister of National Revenue is specified in section 28 of the Federal Courts Act. Therefore, there can be no direct recourse to this Court for decisions of the Minister, except as provided in subsection 172(3) or some other provision of the Income Tax Act. [23] The Income Tax Act is one of the federal statutes that gives this Court jurisdiction over matters that are not within the scope of section 27 or section 28 of the Federal Courts Act. Paragraph 172(3)(f) of the Income Tax Act provides for a right of appeal from a decision of the Minister to issue a notice of intention to revoke the registration of a pension plan. However, the right of appeal under paragraph 172(3)(f) of the Income Tax Act is given only to the administrator of the plan and the participating employers. It is not given to members of the plan. [24] Ms. Boudreau submits that the jurisdiction to hear her application for judicial review is given to this Court by subsection 147.1(13) of the Income Tax Act. The Crown disagrees, and submits that subsection 147.1(13) should not be interpreted as broadly as Ms. Boudreau suggests. [25] The resolution of the debate about the scope of subsection 147.1(13) requires consideration of the statutory scheme for the revocation of the registration of pension plans. That scheme is found in subsections 147.1(11), (12) and (13) and in the appeal provision, subsection 172(3), quoted above. Subsections 147.1(11), (12) and (13) , in their entirety, read as follows: 147.1 (11) Where, at any time after a pension plan has been registered by the Minister, 147.1 (11) Lorsque l'une des situations suivantes se produit après que le ministre a agréé un régime de pension: (a) the plan does not comply with the prescribed conditions for registration, a) le régime n'est pas conforme aux conditions d'agrément réglementaires; (b) the plan is not administered in accordance with the terms of the plan as registered, b) le régime n'est pas géré tel qu'il est agréé; (c) the plan becomes a revocable plan, c) l'agrément du régime peut être retiré; (d) a condition imposed by the Minister in writing and applicable with respect to the plan (including a condition applicable generally to registered pension plans or a class of such plans and a condition first imposed before 1989) is not complied with, d) une condition (y compris une condition applicable de façon générale aux régimes de pension agréés en général ou à une catégorie de régimes et une condition imposée pour la première fois avant 1989) que le ministre a imposée au régime par écrit n'est pas respectée; (e) a requirement under subsection 147.1(6) or 147.1(7) is not complied with, e) une des exigences énoncées aux paragraphes (6) ou (7) n'est pas respectée; (f) a benefit is paid by the plan, or a contribution is made to the plan, contrary to subsection 147.1(10), f) des prestations sont payées par le régime ou des cotisations y sont versées contrairement au paragraphe (10); (g) the administrator of the plan fails to file an information return or actuarial report relating to the plan or to a member of the plan as and when required by regulation, g) l'administrateur ne présente pas de déclaration de renseignements ou de rapport actuariel concernant le régime ou un participant à celui-ci selon les modalités réglementaires de temps ou autres; (h) a participating employer fails to file an information return relating to the plan or to a member of the plan as and when required by regulation, or h) un employeur participant ne présente pas de déclaration de renseignements concernant le régime ou un participant à celui-ci selon les modalités réglementaires de temps ou autres; (i) registration of the plan under the Pension Benefits Standards Act, 1985 or a similar law of a province is refused or revoked, i) l'agrément du régime aux termes de la Loi de 1985 sur les normes de prestation de pension ou d'une loi provinciale semblable est refusé ou retiré, the Minister may give notice (in this subsection and subsection 147.1(12) referred to as a "notice of intent") by registered mail to the plan administrator that the Minister proposes to revoke the registration of the plan as of a date specified in the notice of intent, which date shall not be earlier than the date as of which, le ministre peut informer l'administrateur du régime par avis -- appelé "avis d'intention" au présent paragraphe et au paragraphe (12) --, envoyé en recommandé, qu'il entend retirer l'agrément du régime à la date précisée dans l'avis d'intention, qui ne peut être antérieure aux dates suivantes: (j) where paragraph 147.1(11)(a) applies, the plan failed to so comply, j) si l'alinéa a) s'applique, la date où le régime cesse d'être conforme, (k) where paragraph 147.1(11)(b) applies, the plan was not administered in accordance with its terms as registered, k) si l'alinéa b) s'applique, la date où le régime n'est plus géré tel qu'il est agréé; (l) where paragraph 147.1(11)(c) applies, the plan became a revocable plan, l) si l'alinéa c) s'applique, la date où l'agrément du régime peut être retiré; (m) where paragraph 147.1(11)(d) or 147.1(11)(e) applies, the condition or requirement was not complied with, m) si l'alinéa d) ou e) s'applique, la date où la condition ou l'exigence n'est plus respectée; (n) where paragraph 147.1(11)(f) applies, the benefit was paid or the contribution was made, n) si l'alinéa f) s'applique, la date où les paiements ou versements ont été effectués; (o) where paragraph 147.1(11)(g) or 147.1(11)(h) applies, the information return or actuarial report was required to be filed, and o) si l'alinéa g) ou h) s'applique, la date fixée pour la présentation; (p) where paragraph 147.1(11)(i) applies, the registration referred to in that paragraph was refused or revoked. p) si l'alinéa i) s'applique, la date du refus ou du retrait. 147.1 (12) Where the Minister gives a notice of intent to the administrator of a registered pension plan, or the plan administrator applies to the Minister in writing for the revocation of the plan's registration, the Minister may, (a) where the plan administrator has applied to the Minister in writing for the revocation of the plan's registration, at any time after receiving the administrator's application, and (b) in any other case, after 30 days after the day of mailing of the notice of intent, give notice (in this subsection and subsection 147.1(13) referred to as a "notice of revocation") by registered mail to the plan administrator that the registration of the plan is revoked as of the date specified in the notice of revocation, which date may not be earlier than the date specified in the notice of intent or the administrator's application, as the case may be. 147.1 (12) Le ministre peut, s'il envoie un avis d'intention à l'administrateur d'un régime de pension agréé ou si celui-ci lui demande par écrit de retirer l'agrément, informer l'administrateur par avis -- appelé "avis de retrait" au présent paragraphe et au paragraphe (13) --, envoyé en recommandé, du retrait de l'agrément du régime à compter de la date précisée dans l'avis de retrait, qui ne peut être antérieure à celle précisée dans l'avis d'intention ou dans la demande de l'administrateur. L'avis de retrait est envoyé aux dates suivantes: a) si l'administrateur demande au ministre par écrit de retirer l'agrément du régime, une date donnée postérieure à la réception de la demande de l'administrateur; b) dans les autres cas, 30 jours après la mise à la poste de l'avis d'intention. 147.1 (13) Where the Minister gives a notice of revocation to the administrator of a registered pension plan, the registration of the plan is revoked as of the date specified in the notice of revocation, unless the Federal Court of Appeal or a judge thereof, on application made at any time before the determination of an appeal pursuant to subsection 172(3), orders otherwise. 147.1 (13) L'agrément d'un régime de pension agréé est retiré à compter de la date précisée dans l'avis de retrait, sauf ordonnance contraire de la Cour d'appel fédérale ou de l'un de ses juges sur demande formulée avant qu'il ne soit statué sur tout appel interjeté selon le paragraphe 172(3). [26] It seems to me that Ms. Boudreau's application can be heard by this Court only if this Court accepts three propositions relating to the scope of subsection 147.1(13). First, this Court must be authorized to make at least one of the orders Ms. Boudreau is seeking (an order quashing the decision of the Minister to issue the notice of intent, or an order that the effective date of the revocation to be no earlier than the date of the notice of intent). Second, Ms. Boudreau must have the status to make an application under subsection 147.1(13). Third, it must be possible to commence an application under subsection 147.1(13) before the Minister has issued a notice of revocation for the Cryptic Web pension plan. [27] The scheme for the revocation of the registration of a pension plan contemplates two kinds of notice to be given by the Minister to the administrator of the plan. The first notice, referred to in subsection 147.1(11), is a "notice of intention to revoke" or a "notice of intent". [28] A notice of intention to revoke the registration of a pension plan must specify a reason for the proposed revocation, which must be one of the reasons set out in paragraphs 147.1(11)(a) through (i). It must also specify a proposed effective date for the revocation. The proposed effective date cannot be earlier than the date specified in subsection 147.1(11)(j) through (p), which varies depending upon the reason for the proposed revocation. In this case, the stated reason for Minister's intent to revoke is based on paragraph 147.1(11)(a) (that is, that the plan does not comply with the prescribed conditions for revocation), which means that the earliest possible effective date, as specified by paragraph 147.1(11)(j), is "the date as of which the plan failed to so comply." [29] A notice of intention to revoke the registration of a pension plan triggers a statutory appeal right in paragraph 172(3)(f) of the Income Tax Act. The appeal lies directly to this Court. The right of appeal is given to the administrator of the plan to whom the notice of intent is given, and to each employer that participates in the pension plan. Strangely, subsection 147.1(11) requires the Minister to give the plan administrator, but not the participating employers, a notice of intention to revoke the registration of a pension plan. [30] The notice of intention to revoke the registration of a pension plan also marks the beginning of a 30 day period after which the Minister may issue the second kind of notice provided for in the revocation scheme, a "notice of revocation" under subsection 147.1(12). The notice of revocation is the instrument by which the registration of a pension plan is revoked. [31] The Minister may issue a notice of revocation either under paragraph 147.1(12)(a), in response to an application by the administrator of a plan to revoke its registration, or under paragraph 147.1(12)(b), 30 days or more after the mailing of a notice of intent. [32] A notice of revocation must specify an effective date for the revocation. However, there is a significant degree of discretion in the choice of effective date. [33] In the case of a notice of revocation issued in response to a request for revocation by the plan administrator (which I will refer to as a voluntary revocation), the effective date specified in the notice of revocation may be any date that is not earlier than the date specified in the administrator's application. [34] In the case of a notice of revocation issued after the Minister has issued a notice of intent (which I will refer to as an involuntary revocation), the effective date specified in the notice of revocation may be any date that is not earlier than the proposed effective date specified in the notice of intent. [35] The Minister may issue a notice of revocation 30 days after the mailing of the notice of intention to revoke, whether or not an appeal has been commenced under subsection 172(3) of the Income Tax Act. That means that the Minister has the right, but not the obligation, to defer the issuance of notice of revocation until after the disposition of any such appeal. It bears repeating that in the notice of revocation, whenever it is issued, the Minister may choose an effective date for the revocation that is later than the proposed effective date specified in the notice of intent. [36] According to subsection 147.1(13), the registration of a pension plan is revoked as of the effective date specified on the notice of revocation "unless this Court or a judge thereof, on application made at any time before the determination of an appeal pursuant to subsection 172(3), orders otherwise". The quoted phrase comprises the closing words of subsection 147.1(13). Its meaning is a matter of debate between Ms. Boudreau and the Crown because subsection 147.1(13) is not specific on a number of important points. [37] It is clear, for example, that subsection 147.1(13) gives this Court the jurisdiction to make an "order otherwise", upon an application that is made before the disposition of an appeal under subsection 172(3). If there is no such order, then the registration of the pension plan is revoked as of the effective date specified in the notice of revocation. However, much remains unclear about what kind of order is contemplated by subsection 147.1(13), who is entitled to make an application under subsection 147.1(13), and when the application may be made. [38] Before dealing with those points, I will make some general observations about the revocation of the registration of pension plans that, in my view, should guide the interpretation of subsection 147.1(13). [39] First, the statutory scheme for the revocation of the registration of a pension plan is intended to accommodate a revocation at the request of the plan administrator, or a revocation that results from a decision of the Minister. [40] Second, the only temporal restriction on an application under subsection 147.1(13) is that it must be made before the disposition of any appeal under subsection 172(3). That would suggest that, if subsection 147.1(13) has any application to voluntary revocations, there is no time limit. That may seem to be a strange result. However, it makes sense in the context of a statutory revocation scheme that provides for notice of the revocation to be given only to the plan administrator, one party among the many who might be affected by the revocation. Also, it seems to me that, since any relief that may be available under subsection 147.1(13) is discretionary, any unreasonable delay on the part of an applicant in the case of a voluntary revocation probably would reduce the likelihood of obtaining a remedy. [41] Third, although Parliament has said that only the administrator of a registered pension plan or a participating employer may exercise the right of appeal under subsection 172(3) when the Minister issues an intent to revoke the registration of the plan, it has not expressed a similar limitation in relation to applications under subsection 147.1(13) when the Minister issues a notice of revocation. Thus, the language of subsection 147.1(13) may suggest that it is intended to have broader application than subsection 172(3). [42] Fourth, the adverse tax consequences of the revocation of the registration of a pension plan fall mainly on the members. I would assume that in most cases, the members of a plan are not in a position to influence decisions about the administration of the plan. It is not unreasonable to suppose that Parliament may have wished to provide some judicial recourse to the members of a pension plan that is proposed to be revoked, even if that recourse falls short of a right of appeal under subsection 172(3). [43] I will now discuss the specific questions mentioned above. Subsection 147.1(13) is reproduced here for ease of reference: 147.1 (13) Where the Minister gives a notice of revocation to the administrator of a registered pension plan, the registration of the plan is revoked as of the date specified in the notice of revocation, unless the Federal Court of Appeal or a judge thereof, on application made at any time before the determination of an appeal pursuant to subsection 172(3), orders otherwise. 147.1 (13) L'agrément d'un régime de pension agréé est retiré à compter de la date précisée dans l'avis de retrait, sauf ordonnance contraire de la Cour d'appel fédérale ou de l'un de ses juges sur demande formulée avant qu'il ne soit statué sur tout appel interjeté selon le paragraphe 172(3). What kind of order is contemplated by the words "order otherwise" in subsection 147.1(13)? [44] The principal function of subsection 147.1(13) is to give legal effect to a notice of revocation of the registration of a pension plan. That legal effect has two aspects. The first aspect is the revocation itself (the registration of the pension plan is revoked). The second aspect is the effective date of the revocation (the registration is revoked as of the date specified in the notice of revocation). [45] A secondary function of subsection 147.1(13) is to provide an exception to the stated legal effect of the notice of revocation. The exception is an "order otherwise" made by this Court, or a judge of this Court, on an application that meets the statutory conditions. [46] There is an issue as to whether the "order otherwise" may speak to both of the stipulated legal effects of subsection 147.1(13), or only the effective date. The question, it seems to me, is this: if an application is made that meets the statutory conditions, does subsection 147.1(13) give the Court the jurisdiction (a) to invalidate the revocation entirely, or (b) to alter the effective date of the revocation, or (c) to suspend or stay the revocation pending the disposition of a subsection 172(3) appeal? [47] The first and second possibilities reflect the two alternative orders sought by Ms. Boudreau in this application for judicial review. The third reflects, as I understand it, the view of the Crown as to the limited scope of subsection 147.1(13). [48] For the purposes of this appeal, I propose to consider only the second and third possibilities. That is because, in Ms. Boudreau's case, she has only a limited interest in the revocation of the registration of the Cryptic Web pension plan. Any risk to her of a tax disadvantage from the revocation would be eliminated by an order that alters the effective date of the revocation to a date that is later than the date on which money was transferred from the Cryptic Web pension plan to the other plan, which apparently occurred at some point, perhaps in 2002, but in any event before the Minister issued the notice of intent. [49] The Crown proposes an interpretation of subsection 147.1(13) that would limit this Court's jurisdiction to the right to suspend or stay the revocation pending the disposition of a subsection 172(3) appeal, not to change permanently the effective date of the revocation. There are a number of reasons why I would be reluctant to adopt such a limited interpretation. [50] Interpreting subsection 147.1(13) to permit only a suspension or stay of a revocation would preclude the possibility, even in a case where there is an appeal under subsection 172(3), that subsection 147.1(13) may be used to seek an order imposing a different effective date for the revocation than the date set out in the notice of revocation. Suppose, for example, the Minister issues a notice of intention to revoke the registration of a pension plan, and specifies a particular effective date for the revocation. Then suppose the plan administrator appeals. And then, while the appeal is pending, the Minister issues a notice of revocation naming a different effective date, as he is apparently entitled to do. It seems to me unreasonable to preclude the appellant in such a case from having recourse to subsection 147.1(13 ) to argue against the change of effective date. [51] Another difficulty with the Crown's proposed interpretation is that it is based on the premise that no application may be made under subsection 147.1(13) unless there is an appeal pending under subsection 172(3). In other words, it is based on the premise that Parliament intended to preclude access to subsection 147.1(13) in the case of a voluntary revocation. [52] It is not difficult to envisage how subsection 147.1(13) could be employed in a voluntary revocation. It is conceivable that the Minister and the administrator may have different views as to the appropriateness of a particular revocation, or the choice of effective date. If the appropriateness of the revocation itself is in issue, then either the administrator will not request it, or the Minister will not accede to the request. Either way, the revocation of the registration will not occur. But if the administrator requests a revocation and the Minister agrees that revocation is appropriate, they still may have different views as to the choice of effective date. The Minister's view will necessarily prevail unless the administrator is entitled to use subsection 147.1(13) to seek an order for a different effective date. I see no sound policy reason why Parliament would be inclined to preclude recourse to subsection 147.1(13) in such a case. Nor do I see anything in the statutory scheme to suggest that Parliament intended to do so. [53] For these reasons, I am inclined to the view that subsection 147.1(13) should be interpreted to give this Court the jurisdiction, in the case of a voluntary or involuntary revocation, to make an order altering the effective date stated in the notice of revocation, and also the jurisdiction, if a subsection 172(3) appeal is pending, suspending or staying the revocation pending the determination of the appeal. [54] Assuming that view is correct, the exercise of the Court's jurisdiction would require an application that meets the conditions in subsection 147.1(13). It remains to consider what is required for an application to meet those conditions. Who has the status to make an application under subsection 147.1(13)? [55] The Crown's position is that an application under subsection 147.1(13) may be made only by the administrator or a participating employer of a pension plan that is proposed to be revoked, and not a member. The most straightforward answer to that proposition is that Parliament has not said that recourse to subsection 147.1(13) is limited to those who have a right of appeal under subsection 172(3), although it could easily have done so. [56] It also seems to me that the Crown's reasoning on this point suffers from the same flaw as the previous point, which is that it is based on the premise that an application under subsection 147.1(13) must necessarily be connected with an appeal under subsection 172(3), and therefore cannot be applied in a situation involving a voluntary revocation. The premise is just as unsound in the context of this point as it was in context of the previous point. [57] It may well happen that the Minister and other parties with an interest in a registered pension plan have different views about what the effective date of the revocation of its registration should be. In fact, of all possible interested parties, it is probably the members who have the most at stake in the resolution of any dispute about the choice of effective date. Given that the subject matter of subsection 147.1(13) is the resolution of a dispute about the effective date of a revocation, and given that it does not expressly limit potential applicants to plan administrators and participating employees, I would not be inclined to add such a limitation by interpreting the provision as narrowly as the Crown would propose. [58] It also seems to me relevant that, as a practical matter, there can be no assurance that the decision of a plan administrator to request the revocation of its registration, or the decision of the administrator or a participating employer not to appeal an involuntary revocation, or to settle or abandon such an appeal, will necessarily take into account the interests of the members. While the members may have the right to pursue civil remedies against the plan administrator or the participating employer if their interests are impaired, those remedies may prove empty if the administrator and employer have no assets. In addition, such remedies would have to be pursued in the provincial courts which may not have the jurisdiction to reverse a revocation. The Crown argues that the income tax consequences of a revocation could, to the extent they result in tax assessments, be appealed to the Tax Court of Canada, but it is far from clear to me that it would be open to the Tax Court, in an income tax appeal, to disregard the effective date of the revocation of a pension plan as stipulated in a notice of revocation. [59] If subsection 147.1(13) does not entitle members of a pension plan to challenge the effective date of the revocation of the registration of a pension plan, then the decision of the Minister to issue a notice of revocation may be within the exclusive original jurisdiction of the Federal Court by virtue of section 18 of the Federal Courts Act (assuming section 18.5 of the Federal Courts Act would not bar the application: see Telecommunications Workers Union v. Canada (Radio-television and Telecommunications Commission (C.A.), [1993] 1 F.C. 231); a point on which I express no opinion.) Assuming the Federal Court has jurisdiction in this matter, it would mean that two different courts could be required to adjudicate the same point, with potentially inconsistent results. [60] On balance, I am inclined to the view that anyone has the status to bring an application under subsection 147.1(13) who can demonstrate a real and substantial interest in the revocation of the registration of a pension plan. Ms. Boudreau clearly has such an interest. The timing of an application under subsection 147.1(13) [61] Can an application be made under subsection 147.1(13) before the Minister issues a notice of revocation? The Minister argues that it cannot, and relies on the opening words ("where the Minister gives a notice of revocation to the administrator of a registered pension plan"). [62] In my view the opening words are sufficiently clear to support the conclusion that an order cannot be made under subsection 147.1(13) until after a notice of revocation is issued. However, they do not preclude the commencement of an application under subsection 147.1(13) in respect of a pension plan for which the Minister has not yet issued a notice of revocation, but has issued a notice of intent that is under appeal, as in this case. [63] It seems to me that, if Ms. Boudreau has the status to make an application under subsection 147.1(13), and this Court has the jurisdiction to grant her one of the remedies she is seeking, the fact that a notice of revocation has not yet been issued may be a reason to delay the hearing of this application, but it is not a reason to find that it should not have been commenced when it was. This Court cannot make an order under subsection 147.1(13) unless an application is made under subsection 147.1(13) "at any time before the determination of an appeal pursuant to subsection 172(3)". If an order is to be made before the appeal is determined, it must be possible to apply for the order while the appeal is pending. Summary and proposed disposition of the Crown's motion on jurisdiction [64] As indicated above, my inclination is to conclude that Ms. Boudreau has the status to bring the application for judicial review, and that this Court has the jurisdiction to grant one of the remedies she seeks (an order changing the effective date of the revocation of the registration of the Cryptic Web pension plan), but that her application cannot be determined unless and until a notice of revocation is issued. [65] I have expressed my conclusions tentatively because it seems to me unnecessary at this stage to reach a definitive conclusion. That is because the Cryptic Web appeal remains outstanding, and Ms. Boudreau retains the right to reapply to intervene in that appeal, if it proceeds. If it proceeds, it may result in a judgment that would render this application moot (whether or not Ms. Boudreau is permitted to intervene). [66] I would make an order staying this application, and all motions filed to date, until the final disposition of the Cryptic Web appeal. "K. Sharlow" J.A. "I agree Marshall Rothstein J.A." "I agree M. Nadon J.A." FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-248-05 HEARING OF THE RESPONDENT'S MOTION TO QUASH THE JUDICIAL REVIEW APPLICATION STYLE OF CAUSE: Suzanne Boudreau v. Minister of National Revenue et al. PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: August 22, 2005 REASONS FOR ORDER: Sharlow J.A. CONCURRED IN BY: Rothstein J.A. Nadon J.A. DATED: September 20, 2005 APPEARANCES: Mr. Lubomyr Chabursky FOR THE APPLICANT Mr. Roger Leclaire Ms. Justine Malone FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. Lubomyr Chabursky Ottawa, Ontario FOR THE APPLICANT John H. Sim, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT