Pawar v. Canada
T-1407-96
Hargrave P.
26/5/97
9 pp.
Motion to certify proceeding as class action, appoint plaintiff (Pawar) as representative plaintiff for class-Plaintiff, resident of Canada since 1987, turning 65 in December 1993-Application for old age security pension denied as not meeting residency requirement of pensionability-Proposed class composed of Canadian citizens, permanent residents, aged 65 or older, not residing in Canada for required 10 years preceding pensionability-Seeking declaration Old Age Security Act, s. 3 invalid pursuant to Constitution Act, 1982, s. 52; damages equal to pensions each might have collected since age 65 under Charter, s. 24-Unnecessary to import British Columbia Class Proceedings Act class certification provisions-Federal Court Rules, R. 1711(1), (3) providing for continuance of class proceeding, subject to Court otherwise ordering, and for directions-Court having procedural machinery in its rules to allow class action suits, must also have inherent or implied jurisdiction to carry out purpose of remedial procedure such as class action-Identifiable class, common grievance suitable for class proceeding-Pawar would fairly, adequately, properly represent class-Pleadings must disclose reasonable cause of action-As general rule action for damages under Charter, s. 24 cannot be coupled with declaratory action for invalidity under Constitution Act, 1982, s. 52: Guimond v. Quebec (Attorney General), [1996] 3 S.C.R. 347-No allegation in statement of claim of wrongful conduct, bad faith, negligence, collateral purpose necessary to found claim for damages-Mere refusals by Crown servants charged with enforcing clear legislative provision to persistent claimant not improper conduct-Denial of certification akin to striking out action-If plain, obvious action or portion thereof will not succeed, futile case or futile portion thereof ought not be allowed to proceed-Action for declaration under Constitution Act, 1982, s. 52, arguable, might conceivably succeed, but given clear position taken by Supreme Court of Canada, in cases leading up to Guimond claim for damages under Charter, s. 24 futile-Portion of action seeking declaration certified, may proceed as class action with representative plaintiff-Plaintiff appointed as representative plaintiff for class-Federal Court Rules, C.R.C., c. 663, R. 1711-Old Age Security Act, R.S.C., 1985, c. O-9, s. 3-Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52-Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24-Class Proceedings Act, S.B.C. 1995, c. 21.