T-1364-97
The Attorney General of Canada (Applicant)
v.
Dr. H. Paul Simon (Respondent)
Indexed as: Canada (Attorney General)v. Simon (T.D.)
Trial Division, Rothstein J."Ottawa, April 14; Calgary, May 15, 1998.
Pensions — Respondent receiving CPP disability pension while residing in Germany — Whether —subject to the Canada Pension Plan— under Agreement between Canada and Germany, Art. 11(a) — Review Committee under Old Age Security Regulations defining —subject to— as including persons making contributions to Plan and those receiving benefits thereunder — Applicable standard of review patent unreasonableness — Review Committee's decision not patently unreasonable — Committee correctly excluding evidence (—supplementary means of interpretation—) regarding interpretation of Art. 11(a) — Provision affecting only Canadian Government, persons living in Germany entitled to pension under Canada's Old Age Security Act.
Administrative law — Judicial review — Certiorari — Review Committee under Old Age Security Regulations defining words —subject to Canada Pension Plan— in Agreement between Canada and Germany, Art. 11(a) as extending to both contributors and those receiving benefits thereunder when unable to contribute — In view of full privative clause, applicable standard of review patent unreasonableness — Impugned decision not patently unreasonable — Whether Review Committee improperly rejected evidence of subsequent practice and of supplementary means of interpretation under Vienna Convention, Arts. 31(3)(b), 32 — Committee correctly rejecting evidence but for wrong reasons — Evidence not helping to establish agreement between parties as to interpretation of Art. 11(a) — Absence of complaint by Germany inconclusive — Evidence of Canada's unilateral intention not assisting Court in determining what interpretation parties agreed to — Internal memorandum not helpful in interpretation of Agreement, Art. 11(a).
This was an application for judicial review of the decision of a Review Committee under former section 31 of the Old Age Security Regulations that the respondent was "subject to the Canada Pension Plan", when he resided in Germany, within the meaning of Article 11(a) of the Agreement between the Government of Canada and the Government of the Federal Republic of Germany on Social Security . Upon becoming disabled, the respondent received a monthly Canada Pension Plan (CPP) disability pension from December 1987 to August 1993 while residing in Germany. Before the Review Committee, he argued that, during the period when he was residing in Germany and receiving a CPP disability pension, he was "subject to the Canada Pension Plan" and that this time should be counted towards the years of eligibility for calculating his Canadian old age pension even though he was not residing in Canada. A majority of the Review Committee held in favour of the respondent, defining the words "subject to the Canada Pension Plan" as extending not only to contributors but also to those, like the respondent, connected to the CPP by receiving benefits thereunder when unable to make contributions. Three issues were raised herein: (1) the standard of review of the Review Committee's decisions; (2) whether the Review Committee erred in law under the appropriate standard of review, and (3) whether it committed an error of jurisdiction in wrongly refusing to consider relevant evidence.
Held, the application should be dismissed.
(1) Subsection 28(1) of the Old Age Security Act is a full privative clause in that the Review Committee's decisions are final and conclusive from which no appeal lies and all forms of judicial review are excluded. Where a full privative clause applies, the tribunal's decision is reviewable only if it is patently unreasonable or the tribunal has made an error in the interpretation of a legislative provision limiting its powers. In the present case, the Review Committee was not considering a legislative provision limiting its powers. Therefore, the standard of review is patent unreasonableness.
(2) If there was a defect in the Review Committee's decision, it was not immediately evident on the face of its reasons. The issue was whether the words "subject to the Canada Pension Plan" are restricted to the making of contributions under the Canada Pension Plan. With respect to entitlement to a pension under the Old Age Security Act , it is not clear why the words "contributing to" the CPP or words of similar import were not used in Article 11(a) of the Agreement. The meaning of the words "subject to the Canada Pension Plan" is therefore not obvious. This was not a case in which, once the lines of the problem have come into focus, patent unreasonableness was evident. Therefore, the decision of the majority of the Review Committee was not patently unreasonable.
(3) The applicant alleged that the Review Committee improperly refused to consider evidence of subsequent practice under Article 31(3)(b) of the Vienna Convention on the Law of Treaties, and improperly rejected evidence of supplementary means of interpretation under Article 32 of the Convention. The Review Committee ruled that it would not consider the subsequent practice evidence because the issue before it was whether this practice complied with Article 11(a) of the Agreement. The Committee correctly rejected the evidence but for the wrong reason. Under Article 31(3)(b) of the Vienna Convention, it is mandatory for a tribunal to admit and take into account evidence of subsequent practice if such evidence helps to establish the agreement of the parties regarding interpretation of a treaty. The evidence that the applicant sought to introduce did not help to establish the agreement between the parties regarding the interpretation of Article 11(a) of the Agreement. The fact that "no other country or claimant had ever challenged Canada's interpretation of the like provision found in virtually all other social security agreements concluded by Canada" was not evidence establishing any agreement between Canada and Germany. The absence of complaint by Germany was also inconclusive. The second alleged error related to the rejection of "supplementary means of interpretation" which was an internal Government of Canada memorandum indicating that a provision similar to Article 11(a) of the Agreement was a standard feature of all social security agreements between Canada and other countries. The Review Committee correctly excluded this evidence, but again for the wrong reasons. Evidence of Canada's unilateral intention did not assist the Court in determining what interpretation the parties agreed to. The connection between the memorandum said to establish Canada's intended interpretation and any agreement actually reached by the parties as to interpretation was speculative. The 1983 memorandum states that provisions like Article 11(a) are "exclusively a matter of Canadian domestic policy which is not effectively negotiable since it does not have reciprocal application". It did not address the question at issue as to whether periods of receipt of disability pension under the CPP in a foreign country should also count as periods of residence in Canada for Old Age Security Act purposes. It did not assist in the interpretation of Article 11(a) of the Agreement.
statutes and regulations judicially considered
Agreement between the Government of Canada and the Government of the Federal Republic of Germany on Social Security, November 14, 1985, [1988] Can. T.S. No. 15, Arts. 7, 11(a),(b),(c).
Canada Pension Plan, R.S.C., 1985, c. C-8, s. 82(1) (as am. by S.C. 1995, c. 33, s. 35).
Old Age Security Act, R.S.C., 1985, c. O-9, ss. 3(2),(3), 28(1) (as am. by S.C. 1995, c. 33, s. 16).
Old Age Security Regulations, C.R.C., c. 1246, s. 31.
Vienna Convention on the Law of Treaties, May 23, 1969, [1980] Can. T.S. No. 37, Arts. 31(3)(b), 32.
cases judicially considered
applied:
Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890; (1997), 149 D.L.R. (4th) 577; [1997] 8 W.W.R. 517; 158 Sask. R. 81; 50 Admin. L.R. (2d) 1; 30 C.C.E.L. (2d) 149; 37 C.C.L.T. (2d) 1; 216 N.R. 1; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49; (1995), 191 N.R. 247 (C.A.).
APPLICATION for judicial review of a Review Committee's decision that respondent was "subject to the Canada Pension Plan" when he resided in Germany and was receiving a CPP disability pension, within the meaning of Article 11(a) of the Agreement between the Government of Canada and the Government of the Federal Republic of Germany on Social Security. Application dismissed.
counsel:
Julie Lalonde-Goldenberg for applicant.
Michael K. Walter for respondent.
solicitors:
Deputy Attorney General of Canada for applicant.
Miller Thomson, Toronto, for respondent.
The following are the reasons for order rendered in English by
Rothstein J.:
THE ISSUES
There are three issues in this judicial review of a decision of a Review Committee established pursuant to former section 31 of the Old Age Security Regulations:1
(a) What is the standard of review of decisions of the Review Committee?
(b) According to the appropriate standard, did the Review Committee commit a reviewable error of law?
(c) Did the Review Committee wrongly refuse to consider relevant evidence and thereby commit an error of jurisdiction?
The issue before the Review Committee was whether the respondent was "subject to the Canada Pension Plan" when he resided in Germany, within the meaning of that phrase as contained in Article 11(a) of the Agreement between the Government of Canada and Government of the Federal Republic of Germany on Social Security , 14 November 1985, [1988] Can. T.S. No. 15 (the Agreement).
Generally, under subsections 3(2) and 3(3) of the Old Age Security Act, R.S.C., 1985, c. O-9, as amended, a person who has resided in Canada for less than 40 years after reaching the age of 18 years is eligible for a partial pension (old age pension) calculated by dividing the number of years of residence in Canada by 40. In this case, the applicant conceded that the respondent is entitled to 33/40 of a full old age pension. However, under Article 11(a) of the Agreement, if a person is "subject to the Canada Pension Plan" during any period of residence in Germany, that period should be counted as a period of residence in Canada for the purposes of the Old Age Security Act . Article 11(a) provides:
ARTICLE 11
For the purposes of the Old Age Security Act of Canada:
(a) if a person, . . . is subject to the Canada Pension Plan . . . during any period of residence in the territory of the Federal Republic of Germany, that period shall be considered as a period of residence in Canada for that person as well as for his spouse and dependants who reside with him and who are not subject to the German legislation regarding mandatory pension coverage;
The respondent became disabled and received a monthly Canada Pension Plan, R.S.C., 1985, c. C-8, as amended (CPP) disability pension from December 1987 to August 1993 when he turned 65. During this period, he resided in Germany. Before the Review Committee, the respondent's position was that during the period when he was residing in Germany and receiving a CPP disability pension he was "subject to the Canada Pension Plan" and that this time should be counted towards the years of eligibility for calculating his Canadian old age pension even though he was not residing in Canada.
REVIEW COMMITTEE DECISION
A majority of the Review Committee found in favour of the respondent. The reasons of the Review Committee state at page 2:
In the end, a majority of the Tribunal would allow the appeal. Essentially, the majority feels that the words "subject to the Canada Pension Plan" includes those persons making contributions to the Plan, persons on behalf of whom contributions are made by the employer to the Plan, and persons in receipt of disability pensions under the Plan. This would include Dr. Simon. The words "subject to" in the view of the majority, refers to those who are actually connected to the CPP either by way of contributions or by way of receiving benefits from the CPP in circumstances in which they are unable to make contributions. The phrase "subject to" is a broad expression which should not be interpreted as equivalent to the phrase "contributing to".
The minority (the Chairman) found that the term "subject to" must not be considered in isolation and that a person receiving a disability pension and who has no residual nexus to Canada is not "subject to" the CPP:
Reading Art. 11(a) in light of the rest of that Article and the Agreement as a whole the dissenting member agrees that, in these circumstances, the meaning of "subject to" must not be considered in isolation. Someone who is only receiving a disability pension and has no residual nexus with Canada is not to be considered subject to the Canada Pension Plan merely because he or she is receiving disability benefits from the Plan.
STANDARD OF REVIEW
At the time of the Review Committee's decision, subsection 28(1) of the Old Age Security Act read:2
28. (1) Where a person is dissatisfied with a decision or determination made under this Act that no pension may be paid to that person or that no supplement may be paid to that person, or respecting the amount of any pension or supplement that may be paid to him, that person may appeal against the decision or determination to a tribunal to be established and conducted in accordance with the regulations, and the decision of the tribunal, subject only to variation by the tribunal on application made to it by that person or the Minister based on evidence not previously considered by it, is final and binding and is not subject to appeal or review by any court. [Emphasis added.]
In Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, Sopinka J. defines a full privative clause at page 905:
A "full" or "true" privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded.
Subsection 28(1) of the Old Age Security Act is clearly a full privative clause.
At page 904 of Pasiechnyk Sopinka J. articulates the standard of review in the case of a full privative clause:
To determine the standard of review, I must first decide whether the subject matter of the decision of the administrative tribunal was subject to a privative clause having full privative effect. If the conclusion is that a full privative clause applies, then the decision of the tribunal is only reviewable if it is patently unreasonable or the tribunal has made an error in the interpretation of a legislative provision limiting the tribunal's powers.
In the present case the Review Committee was not considering a legislative provision limiting its powers. Therefore, the standard of review is patent unreasonableness.
IS THE REVIEW COMMITTEE'S
DECISION PATENTLY UNREASONABLE
If a defect in the Review Committee's decision exists, it is not immediately evident on the face of the reasons. However, judicial review for patent unreasonableness may require the Court to look beyond the face of the reasons. As Iacobucci J. states in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at page 777:
The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada , [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary `patently', an adverb, is defined as `openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. See National Corn Growers Assn. v. Canada (Import Tribunal) , [1990] 2 S.C.R. 1324, at p. 1370, per Gonthier J.; see also Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 47, per Cory J. But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.
The issue in this case is whether the words "subject to the Canada Pension Plan" contemplate receiving a disability pension under the Canada Pension Plan , or whether they are restricted to the making of contributions under the Canada Pension Plan only. Certainly, having regard to the Agreement as a whole, the words "subject to" may well be intended to contemplate only "contributing to" the CPP and not receiving a disability pension under the CPP. In so far as the CPP entitlement is concerned, the Agreement appears to address temporary employment in a country other than Canada when this is required by a Canadian employer. In such circumstances, during the first 60 months of employment outside Canada, the CPP legislation would apply to such employees and the employee would be contributing to the CPP.
However, with respect to entitlement to a pension under the Old Age Security Act, it is not clear why the words "contributing to" the CPP or words of similar import were not used in Article 11(a) of the Agreement. I have not been told of any obvious reason why such words could not have been used or why the broader words "subject to" were used instead. The words "employee", "employment", "self-employment" are used in Articles 7, 11(b) and 11(c), while the term "person" is used in Article 11(a). This suggests that "subject to" in Article 11(a) may indeed contemplate persons in addition to those who are employed or self-employed and who are contributing to the CPP. The meaning of the words "subject to the Canada Pension Plan" is therefore not obvious.
In the course of argument, I asked respondent's counsel if a person who elected to receive a CPP retirement pension at age 60 and who was residing in Germany from ages 60 to 65 could be considered to be "subject to the Canada Pension Plan" for the purposes of Article 11(a). It would be surprising, to say the least, that a person who elected to leave Canada and receive an early Canada Pension Plan could use his or her years of receipt of that pension while outside of Canada as a credit towards Canadian old age pension entitlement.
However, respondent's counsel has convinced me that a person receiving a CPP disability pension may not be in the same circumstance. He pointed out that a recipient of a CPP disability pension is unable to make contributions to the CPP and this may constitute a material distinction from persons who have elected to receive an early CPP retirement pension and leave Canada.
It is not clear why Article 11(a) uses the terms "person" and "subject to" when words such as "employee" or "self-employed person" and "contributing to" could just as easily have been used had that been the intention. This is not a case in which "once the lines of the problem have come into focus" patent unreasonableness is evident. Therefore, I cannot say that the decision of the majority of the Review Committee in this case is patently unreasonable.
EXCLUSION OF EVIDENCE
However, that does not end the matter. The applicant says that the Review Committee made an error of jurisdiction when it refused to hear evidence that would have assisted in the interpretation of Article 11(a). The applicant relies upon the Vienna Convention on the Law of Treaties, 23 May 1969, [1980] Can. T.S. No. 37 (the Vienna Convention) to which Canada is a party. The Vienna Convention provides specific rules for the interpretation of treaties, and it was brought to the attention of the Review Committee.
The applicant alleges two errors: that the Review Committee improperly refused to consider evidence of subsequent practice under Article 31(3)(b) of the Vienna Convention; and, that the Review Committee improperly rejected evidence of supplementary means of interpretation under Article 32 of the Vienna Convention.
As to the first alleged error, Article 31(3)(b) of the Vienna Convention states:
Article 31
. . .
3. There shall be taken into account together with the context:
. . .
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
The Review Committee did admit Canada's evidence with respect to subsequent practice. However, it then ruled that it would not consider the subsequent practice evidence because the issue before it was whether or not this practice complied with Article 11(a) of the Agreement. The Review Committee's reasons state:
Counsel for the Minister also argued that the Tribunal ought to consider the subsequent practice to the signing of the Agreement between the two governments. She argued that the practice of the Minister was not to consider a person receiving disability benefits but not resident in Canada as "subject to the Canada Pension Plan". We all agreed that we cannot exceed [sic ] to that argument. This is the first appeal relating to the meaning of Art. 11 and the question under appeal is whether or not the Minister's practice is correct.
The evidence heard but not considered by the Review Committee is summarized in the affidavit of Diane Cormier:
I did testify that since the coming into force of the agreement, the word "subject to the Canada Pension Plan" in Article 11 had consistently been interpreted to mean "contributing to the Canada Pension Plan" and had never been contested by Germany or any other claimant. I further stated that no other country or claimant had ever challenged Canada's interpretation of the like provision found in virtually all other social security agreements concluded by Canada. Since the time of the hearing no such challenges have been made.
The Review Committee was correct not to consider the evidence but not for the reason given by it. Contrary to the Review Committee's reason, which suggests that it should not consider evidence of subsequent practice at all, it is mandatory under Article 31(3)(b) of the Vienna Convention for a tribunal to admit and take into account evidence of subsequent practice if such evidence helps to establish the agreement of the parties regarding interpretation of a treaty.
The applicant argues that evidence of Canada's practice in applying Article 11(a) and similar provisions in other international agreements establishes Canada's intended interpretation of the provision and that it may be inferred that Germany accepts this interpretation because Germany has not objected to Canada's practice.
However, the evidence that the applicant sought to introduce does not help to establish the agreement of the parties regarding the interpretation of Article 11(a) of the Agreement. First, the fact that "no other country or claimant had ever challenged Canada's interpretation of the like provision found in virtually all other social security agreements concluded by Canada" is not evidence establishing any agreement between Canada and Germany. Even if other countries had expressly agreed with Canada's practice respecting the interpretation of such provisions, it is conceivable that Germany holds a different opinion.
Second, counsel for the applicant submits that the absence of complaint indicates Germany's implicit agreement with Canada's position. I do not agree. Clearly an express affirmation of or objection to Canada's practice by Germany would resolve the question one way or the other. However, I do not know whether the absence of complaint by Germany is because no one ever asked Germany to become involved, or whether Germany chose not to become involved. It is not clear, in the face of Germany's silence, whether Germany is even cognizant of Canada's practice. The absence of complaint by Germany is simply inconclusive.
As a result, I must conclude that the evidence of Canada's unilateral subsequent practice pursuant to Article 11(a) is not evidence that "establishes the agreement of the parties regarding its interpretation" (emphasis added) but is merely a self-serving attempt to persuade the Court to accept the applicant's unilateral interpretation. The Review Committee did not err in not considering this evidence.
The second alleged error relates to the Review Committee's rejection of "supplementary means of interpretation", which the applicant submits is admissible under Article 32 of the Vienna Convention:
Article 32
. . .
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
In respect of this second alleged error, the Review Committee stated:
Counsel called Ms. D. Cormier, International Social Security Policy Officer in the Division of International Benefits and Foreign Affairs, an experienced and articulate civil servant to give evidence about the history of the Agreement and the Government's practice in relation to the Agreement. After argument by counsel, the Chair of the Tribunal decided that Mr.[sic] Cormier could not give evidence as to the meaning of the words in question since that was the job of the Tribunal.
The "supplementary means of interpretation" which the Review Committee refused to admit and consider was an internal Government of Canada memorandum dated June 29, 1983 which indicates that a provision similar to Article 11(a) of the Agreement was a standard feature of all social security agreements between Canada and other countries. The memorandum states in part:
It has been our policy to include as a standard feature of all of our social security agreements a provision which links periods of contributions to the Canada Pension Plan (or to a comprehensive pension plan of a province) with periods of residence for purposes of the Old Age Security Act. The objective has been to ensure that a person who is covered by the CPP while residing outside of Canada will be covered by both components of our public pension system. Thus, those periods of CPP coverage are deemed to be periods of residence in Canada for OAS purposes; . . . Conversely, we have wanted to ensure that someone residing in Canada but contributing to another country's social security system (and hence not the CPP) would not have those periods considered as periods of residence for OAS purposes.
The memorandum also indicates that the OAS/CPP link is exclusively a matter of domestic Canadian policy:
However, I seriously question whether this provision should be part of our agreements or rather whether it would be more appropriate to incorporate it in the Old Age Security Regulations. The OAS/CPP link is, after all, exclusively a matter of domestic Canadian policy which is not effectively negotiable since it does not have reciprocal application. Other countries inevitably seem to have difficulty understanding the reason for the article, and at least half a day is always spent discussing it. Through a change in the Regulations, the link we seek to establish between CPP and OAS coverage would flow as a consequence of having concluded an agreement. Putting the provision in the regulations would simplify the job of negotiating agreements and, more significantly, would locate the provisions where it properly belongs, given its domestic nature.
Applicant's counsel says the Review Committee was bound to apply Article 32 of the Vienna Convention and, had it done so, it would not have excluded the memorandum. Counsel submits that the memorandum is relevant to the interpretation of Article 11(a) of the Agreement because it establishes that Canada intended that periods of contribution to the CPP be linked with periods of residence under the Old Age Security Act.
The Review Committee was correct to exclude this evidence, but again it did so for the wrong reasons. The Review Committee seems to have thought that extrinsic evidence to assist in determining the meaning of the agreement is categorically not admissible. However, if such evidence comes within Article 32 of the Vienna Convention, the Review Committee has the discretion to admit it.
It is implicit in Article 32 that the supplementary means of interpretation contemplated therein are those means of interpretation that help to disclose the parties' intended interpretation of the provision in question. These supplementary means of interpretation would be analogous to extrinsic evidence that is sometimes admitted to assist in the interpretation of an ambiguous contract.
In this case, it is clear that Germany agreed to the words "subject to the Canada Pension Plan" in Article 11(a) of the Agreement. What is not clear, and what Canada attempted to demonstrate to the Review Committee through the use of "supplementary means of interpretation", is that Germany acceded to Canada's preferred interpretation of Article 11(a), i.e. that the words "subject to" were to be interpreted to mean "contributing to".
As with the evidence of "subsequent practice" considered above, the 1983 memorandum is at best an expression of Canada's intended interpretation of Article 11(a). Indeed, the memorandum expressly points out that the OAS/CPP link is "exclusively a matter of Canadian domestic policy which is not effectively negotiable". Evidence showing that Germany knew of and acceded to the interpretation advanced by Canada, would indeed be of assistance in interpreting the Agreement. However, evidence of Canada's unilateral intention does not assist the Court in determining what interpretation the parties actually agreed to. A similar observation is made by Strayer J.A. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1996] 2 F.C. 49 (C.A.), at page 60:
. . . it is hazardous to assume that the meaning attributed to a text by one or two delegations in a multilateral international negotiation necessarily reflects the collective intention, if indeed there was a common intention.
Even if the evidence made Canada's intention very clear, it is not apparent that Germany was aware of this intention and it is therefore not possible to determine what Germany's view was with respect to the interpretation of this provision. The Court is being asked to assume that Germany acceded to Canada's intended interpretation. The connection between the memorandum said to establish Canada's intended interpretation and any agreement actually reached by the parties as to interpretation is simply speculative.
Nonetheless, the applicant's position appears to be that because Article 11(a) is only relevant to Canada, and because Germany agreed to the words of the provision knowing that it only concerned Canada's domestic policy, evidence of Canada's unilateral interpretation of the provision falls within Article 32 because it is evidence of the only interested party's intention.
This case is indeed unusual in that Article 11(a), albeit a provision in the Agreement, does not affect both parties; it only affects the Government of Canada and persons living in Germany who may be entitled to a pension under Canada's Old Age Security Act. The 1983 memorandum states that provisions like Article 11(a) are "exclusively a matter of Canadian domestic policy which is not effectively negotiable since it does not have reciprocal application". It certainly appears that Germany would have little or no interest in the provision.
However, even if Germany knew that Article 11(a) related exclusively to Canada's domestic policy and held no opinion with respect to its interpretation, this would still not mean that Germany agreed to Canada's preferred interpretation of the provision. Evidence purporting to establish Canada's unilateral interpretation, however persuasive, simply does not relate to any consensus that might have been reached by the parties respecting the interpretation of the provision and cannot, therefore, be used as a substitute for evidence of the parties' mutual intention.
In addition, the evidence itself is not of assistance in determining whether it is only periods of contribution to the CPP that are to be credited as periods of residence for purposes of the Old Age Security Act. While the memorandum refers to "periods of contribution", there is no indication that this means periods of contribution to the exclusion of anything else. In other words, it does not address the question at issue here, i.e. whether periods of receipt of disability pension under the CPP in a foreign country should also count as periods of residence in Canada for Old Age Security Act purposes.
The memorandum does not assist in the interpretation of Article 11(a) of the Agreement and the Review Committee did not err in not having regard to it.
INTEREST
The Review Committee's decision recommended that the respondent recover interest from the Minister on retroactive benefits. The applicant challenged the Review Committee's jurisdiction to award interest. However, the respondent conceded that the Review Committee's decision was a recommendation to the Minister to pay interest and not a binding award or direction to the Minister to pay. This jurisdictional question does not arise from the Review Committee's decision.
CONCLUSION
The Review Committee made no reviewable error in its disposition of this matter. The judicial review is therefore dismissed.
The respondent seeks costs on the grounds of special reasons: that this is a test case. Counsel for the Minister represented to the Court that this is not a test case. I have no other evidence that contradicts the assertion of counsel for the Minister. In the circumstances, there will be no award of costs.
1 C.R.C., c. 1246, s. 31 (repealed by SOR/96-521, s. 18) in force January 1, 1997.
2 The scheme of the Old Age Security Act has been amended. S.C. 1995, c. 33 [s. 16], in force January 1, 1997 (SI/96-105) provides that a claimant must now request a reconsideration by the Minister before appealing to a Review Tribunal under s. 82(1) [as am. by S.C. 1995, c. 33, s. 35] of the Canada Pension Plan.