Background
Leah Dyck received Canada Pension Plan (CPP) disability benefits beginning in 2015. In 2021, the Minister of Employment and Social Development terminated her benefits after determining that she had failed to report employment income from 2016 to 2019, and required her to repay benefits to which she was not entitled.
In February 2026, Dyck requested reconsideration of her eligibility. She abandoned that request in March 2026 and instead sought remission of her debt under subsection 66(3) of the Canada Pension Plan. She argued that, had she known she was ineligible for CPP disability benefits, she would have obtained benefits under the Ontario Disability Support Program and her rent-geared-to-income would have been calculated using a lower income. The Minister denied the remission request in June 2026.
Dyck then applied for judicial review. She sought an order setting aside the decision and remitting the matter to a different officer, and also sought a declaration that subsections 66(1), 66(2), and 66(2.01) of the Canada Pension Plan infringe section 15 of the Canadian Charter of Rights and Freedoms in a manner not saved by section 1. The Attorney General conceded that the refusal of remission was unreasonable and moved for judgment setting aside the decision and remitting the matter to the Minister. Dyck opposed the motion because it would not address her constitutional claim.
The Court’s Holding
Justice Sébastien Grammond dismissed the Attorney General’s motion for judgment. The Court held that the proposed relief would not resolve all live controversies between the parties. On a motion for judgment, the Court must first be satisfied that the judicial review application should be allowed for the reasons advanced by the moving party, and then determine whether any live controversy would remain if the proposed relief were granted. Because the Court found that a live controversy would remain, it did not need to decide whether the Minister’s decision was unreasonable.
The central issue was Dyck’s request for a declaration of constitutional invalidity. The Court reasoned that such a declaration would have a concrete, practical effect on her rights: if subsections 66(1), 66(2), and 66(2.01) are invalid, she would not owe the debt, making remission unnecessary. By contrast, the Attorney General’s proposed relief would merely require the Minister to reconsider the remission request, which could be granted or denied again. Therefore, the constitutional claim could have practical utility even if the remission issue were sent back to the Minister.
The Court rejected three arguments advanced by the Attorney General. First, it held that the constitutional challenge was sufficiently connected to the decision under review, even though the Minister’s decision was made under subsection 66(3) and the challenged provisions were subsections 66(1), 66(2), and 66(2.01). The Court noted that those provisions do not empower any administrative body to make decisions and that it was not improper to raise their validity in a judicial review of the Minister’s refusal of remission.
Second, the Court held that Dyck was not barred from raising the constitutional issue for the first time on judicial review because she had not raised it before the Minister. The Minister lacked jurisdiction to decide constitutional questions when making an essentially factual remission decision under subsection 66(3). Judicial review was therefore the proper forum for the constitutional challenge.
Third, the Court rejected concerns about procedural unfairness or a factual vacuum. Because the application was at an early stage, the parties could file affidavit evidence and cross-examine affiants. Although evidence not before the decision maker is generally inadmissible on judicial review when it goes to the merits before that decision maker, the constitutional issue was not the matter before the Minister. The usual process could produce an adequate and fair evidentiary record.
Key Takeaways
- A motion for judgment in a judicial review may be dismissed if the proposed relief would leave a live controversy unresolved.
- A constitutional challenge to CPP debt-creating provisions may proceed in an application for judicial review of a remission refusal, even though the remission decision itself was made under a different statutory subsection.
- An applicant is not necessarily barred from raising a constitutional issue for the first time in Federal Court where the administrative decision maker lacked jurisdiction to decide that issue.
- The Court awarded Dyck $2,000 in costs, inclusive of taxes and disbursements, after dismissing the Attorney General’s motion.
Why It Matters
This decision clarifies when the Federal Court will refuse to grant judgment on consent-style terms proposed by a respondent, even where the respondent concedes that the administrative decision was unreasonable. If the applicant’s pleaded constitutional claim would still have practical effect after the proposed relief, a live controversy remains and the application may proceed.
The ruling is also significant for CPP overpayment and remission litigation. It confirms that constitutional attacks on the statutory provisions creating a debt may be brought in a judicial review of a remission refusal, particularly where no administrative body is empowered to decide the validity of those provisions. For practitioners, the case underscores the importance of framing relief precisely and assessing whether proposed remittal truly resolves all issues in dispute.