Spinks v. Canada
T-2473-91
McKeown J.
16/1/95
16 pp.
Plaintiff seeking declaratory relief, pursuant to Act, s. 42(10) and Regulations, s. 17(1), permitting him to purchase prior Australian public service on ground not informed of right to make such election -- Plaintiff worked twenty years with Australian Atomic Energy Commission prior to career with Atomic Energy Canada Limited (AECL) -- Plaintiff enrolled in federal superannuation plans of Australia and Canada -- Applicant taking return of Australian plan contributions in lump sum upon departure-Upon commencement of work with AECL, plaintiff provided with Act, screening form and booklet regarding Canadian plan, and met with plan administration officer -- Plaintiff claiming review of material and meeting with staffing officer leaving him with clear understanding not entitled to elect credits for Australian service-Purpose of Act, s. 42(10) and Regulations, s. 17(1) clearly remedial, however s. 17(1) clearly requiring failure to make election be based on erroneous advice -- Although circumstances may exist where insufficient advice constituting erroneous advice, present circumstances, whereby information provided to plaintiff put him on notice to make enquiries regarding Australian service, not constituting erroneous advice -- Impression left with plaintiff regarding ability to elect buy-back not constituting erroneous advice -- Erroneous advice requiring positive misstatement or inference of positive misstatement -- No erroneous advice-Alternatively plaintiff seeking damages for negligent misrepresentation -- Negligent misrepresentation tort now constituting established principle of Canadian tort law -- Claim requiring: (1) duty of care based on "special relationship"; (2) untrue, inaccurate or misleading representation; (3) negligence in making misrepresentation; (4) reliance by representee on negligent misrepresentation; and (5) damages resulting from reliance-Adverse finding of reliance -- In present case, no abstract duty imposed on staffing officer to enquire and advise plaintiff with respect to election in particular case -- Where government booklet specifically instructing employee to make enquiry, voluntary assumption of responsibilities by staffing officer not applicable in absence of employee enquiry -- No evidence staffing officer holding out Australian service as not countable -- Adverse finding of duty of care -- Adverse finding of misleading representation by AECL or staffing officer -- Reasonable person would have made enquiries -- Plaintiff claiming res ipsa loquitur principle applicable -- No precedent for res ipsa loquitur application outside accident cases: authorities referring to "thing that inflicts damage" which can only contemplate physical objects; all examples illustrating physical and personal damage caused by chattels-Doctrine requiring: (1) something normally not occurring without negligence; and (2) exclusive knowledge of facts resting with defendant -- Res ipsa loquitur not applicable to present case-Adverse finding of negligent misrepresentation -- Action dismissed -- Public Service Superannuation Act, R.S.C., 1985, c. P-36, s. 42(10)-Public Service Superannuation Regulations, c. 1358, s. 17(1).