Court of Appeal Decision: Banerjee v. Government of Saskatchewan (2025 SKCA 23)

The Saskatchewan Court of Appeal dismissed an appeal by the Government of Saskatchewan regarding the wrongful denial of disability benefits to Dianne Banerjee. The court upheld the decision that Banerjee was not required to seek judicial review of the benefit denial but could instead pursue a civil claim. Represented by James Ludwar, Banerjee successfully argued that the Disability Income Plan Advisory Council’s decisions were not subject to judicial review, as they lacked the characteristics of a governmental administrative tribunal. The court awarded $15,000 in costs to Banerjee. This ruling reaffirms the right of employees to seek redress through civil litigation in such cases. Read the ruling below.

Court of Appeal for Saskatchewan

Docket: CACV4335

Citation: Government of Saskatchewan v. Banerjee, 2025 SKCA 23

Date: 2025-02-20

Between:

The Government of the Province of Saskatchewan

(Appellant / Applicant / Defendant)

And

Dianne Banerjee

(Respondent / Plaintiff)

Before:

The Honourable Chief Justice Robert W. Leurer

The Honourable Justice Neal W. Caldwell

The Honourable Justice Keith D. Kilback

Disposition: Appeal dismissed

Written reasons by: The Honourable Justice Neal W. Caldwell

In concurrence: The Honourable Chief Justice Robert W. Leurer, The Honourable Justice Keith D. Kilback

On appeal from: 2024 SKKB 19, Regina

Appeal heard: November 12, 2024

Counsel:

Jason Clayards for the Appellant

James Ludwar for the Respondent

I. Overview

[1] In this appeal, the Public Employee Benefits Agency (PEBA), styled in this matter as “The Government of the Province of Saskatchewan,” seeks to overturn the decision of a Court of King’s Bench judge, which ruled that Dianne Banerjee, who had commenced a civil claim for wrongful denial of disability income benefits, was not required to seek judicial review of the decisions denying her those benefits (Banerjee v. Saskatchewan, 2024 SKKB 19).

[2] PEBA is a branch of the Ministry of Finance established under The Financial Administration Act, 1993, SS 1993, c F-13.4. The decisions denying benefits in this case were made by a ministerial advisory committee called the Disability Income Plan Advisory Council (DIP Council), established by the Minister of Finance pursuant to s. 15 of The Executive Government Administration Act, SS 2014, c E-13.1.

[3] The disability income plan at issue is said, under an agreed statement of facts, to be “a self-insured, multiple-employer plan operated by PEBA” (DIP). The DIP is organized pursuant to a plan document dated December 9, 2021, prepared by PEBA entitled Public Employees Disability Income Plan for Certain Public Employees in the Province of Saskatchewan (Plan Document). The DIP is funded by the government of Saskatchewan through the general revenue fund. The day-to-day administration of the DIP under the Plan Document is carried out by The Canada Life Assurance Company (Canada Life) pursuant to an agreement between it and PEBA.

[4] Ms. Banerjee is a member of Unifor Local 1-S and an employee of Saskatchewan Telecommunications (SaskTel). In 2014, Ms. Banerjee applied for and received 20 months of sick leave benefits under the DIP (own-occupation benefits). Benefits under the DIP were made available to her through the collective bargaining agreement between SaskTel and Unifor (CBA). The Plan Document requires employees to establish that they are unable to work at any “reasonable occupation” to receive income benefits (total-disability benefits) after their own-occupation benefits have expired.

[5] In its capacity as administrator of the DIP, on March 14, 2016, Canada Life determined that Ms. Banerjee had not established an entitlement to total-disability benefits (Denial). Ms. Banerjee twice sought to have the Denial reversed by exercising an avenue of “appeal” made available to her under Article 10 of the Plan Document, which is entitled “Dispute Resolution.” The dispute resolution process entails an appeal to the DIP Council:

10.2 Appeal to DIP Council

A Participating Employee who disputes the approval or denial of a claim for Disability Benefits or any aspect of such a claim may appeal in writing to the DIP Council within 60 days from the date the Participating Employee received the decision from the Administrator.

10.3 A Participating Employee who appeals to the DIP Council shall be entitled to make such written submissions and provide such written information or argument to the DIP Council as they see fit.

10.4 The DIP Council shall consider the written appeal submitted by the Participating Employee, all existing information including medical evidence and consider any additional medical information submitted by the Participating Employee. In considering the appeal, the DIP Council may accept any evidence that it considers appropriate, fix its own procedures and processes and is not bound by the rules of law concerning evidence.

[6] On two occasions, the last being on June 16, 2016, the DIP Council rejected appeals from Canada Life’s denial of Ms. Banerjee’s total-disability benefits (Council Denials). The dismissal of Ms. Banerjee’s appeals left her without income replacement benefits after April 1, 2016. Ms. Banerjee did not seek judicial review of the Denial or the Council Denials. The parties agree and told this Court that it has long been the practice for employees who have been denied DIP benefits to seek redress through a civil action. Indeed, a central premise of PEBA’s arguments in this Court is that this long-standing practice is a product of legal error that this Court should remedy.

[7] During the course of the civil proceedings, PEBA asserted that Ms. Banerjee should not have commenced a civil action but rather should have had Unifor pursue redress through the grievance process under the CBA. That application was adjourned and PEBA never returned to it. However, in 2023, PEBA revisited the issue of jurisdiction, applying pursuant to Rule 7-1 of The King’s Bench Rules seeking answers to two questions:

(a) Are decisions of DIP Council properly challenged by way of judicial review?

(b) If not, are decisions made by DIP Council or PEBA regarding entitlement to benefits arising out of the DIP Plan properly resolved through litigation or arbitration conducted in accordance with the relevant CBA?

[8] In the Judgment, the Chambers judge denied PEBA’s application, ruling that “[n]either judicial review nor arbitration is the appropriate forum for resolution of Ms. Banerjee’s claim for long-term disability benefits. Her claim was appropriately initiated by statement of claim” (at para 94). He also ordered PEBA to pay $5,000 in costs to Ms. Banerjee as well as $2,500 in costs to each of SaskTel and Unifor, who had intervened in the matter.

[9] I would dismiss PEBA’s appeal chiefly because the decisions of the DIP Council regarding an employee’s entitlement to income-replacement benefits under the DIP do not have the characteristics of a government administrative or adjudicative decision that would be subject to judicial review.

[10] In short, I would not interfere with the Chambers judge’s conclusion that Ms. Banerjee’s claims were properly brought before the Court of King’s Bench by statement of claim and not by an originating application seeking judicial review. I would also not interfere with his awards of costs to SaskTel and Unifor. I would dismiss the appeal with $15,000 in costs payable by PEBA to Ms. Banerjee.

II. Issues

[11] PEBA’s appeal is taken upon the following grounds:

(a) The Chambers Judge erred in fact, law, and mixed fact and law when deciding whether judicial review was the appropriate venue to challenge the decisions of the Disability Income Plan Advisory Council (the “DIP Council”) and/or the Public Employees Benefit Agency (“PEBA”). Specifically, the Chambers Judge erred in finding that:

(i) PEBA did not have the attributes of the types of administrative tribunals established by legislation to make adjudicative decisions;

(ii) DIP Council was not an administrative decision maker;

(iii) the power afforded to PEBA pursuant to The Financial Administration Act and The Legislation Act did not include the power to determine benefit entitlements arising from the Disability Insurance Plan (the “Plan”);

(iv) DIP Council’s advisory role in accepting and rejecting claims for DIP benefits was not associated with the administration or management of the DIP fund or the DIP Plan;

(v) the denial of the Plaintiff’s claim to DIP Plan benefits did not raise a matter of concern respecting a public law matter; and

(vi) despite recognizing that the fund from which benefits are paid is established by The Financial Administration Act, he failed to address that the fund is supplemented by the general revenue fund, which “is available for appropriation for the public services of Saskatchewan,” and thus is of a significant public character.

(b) The Chambers Judge erred in fact and law in deciding that the DIP Plan permitted the Plaintiff to commence an action by Statement of Claim to challenge the decision of PEBA and/or DIP Council. Specifically, the Chambers Judge erred:

(i) by relying on statements made by Plaintiff’s counsel not in evidence in deciding that the word “action” in Article 8.4 of the DIP Plan meant an “action” commenced by Statement of Claim;

(ii) by adopting an overly broad interpretation of Article 2.1(s) of the DIP Plan and finding that its application would render the express terms of the DIP Plan meaningless;

(iii) by failing to interpret the DIP Plan as a whole, instead focusing solely on the word “action”; and

(iv) by determining that the Plaintiff had a private right of action “against a uniquely established fund” established by The Financial Administration Act without identifying any authority for such an action to be brought.

III. Analysis

[12] This appeal is fully addressed under the first ground of appeal (ground (a) above).

[13] It is well understood that a provincial administrative body may be authorized to exercise decision-making powers in private or public ways, or both, and that the power to do so is always derived, whether expressly or by implication, from a statute or regulation or from the execution of a power conferred by or pursuant to the authority of an Act. Nonetheless, even though such a body may be imbued with state authority, the exercise of its powers may not be subject to the public law remedy of judicial review.

[14] This Court recently applied the law in this regard in Alie-Kirkpatrick v. Saskatoon (City), 2019 SKCA 92, where Tholl J.A. wrote that the Court of King’s Bench “does not have the jurisdiction to review every decision made by a decision-maker that affects a member of the public” (at para 39).

[15] The Chambers judge in this case, because he had interpreted the text of the Plan Document as providing that an “action” was the appropriate venue for Ms. Banerjee to advance her claim following the Council Denials, did not conduct a detailed analysis of whether PEBA or the DIP Council had exercised state authority of a sufficiently public character for their decisions to be subject to judicial review.

[16] Justice Tholl observed in Alie-Kirkpatrick that there is conflicting jurisprudence on the standard of appellate review that applies in an appeal from a Court of King’s Bench Chambers judge’s determination about whether a matter is subject to judicial review.

A. An exercise of state authority

[17] There is no dispute about the fact that PEBA is a branch of the Ministry of Finance that exercises state authority pursuant to The Financial Administration Act, 1993 and that the DIP Council is an advisory committee established pursuant to s. 15 of The Executive Government Administration Act. Statements to this general effect are contained in the Agreed Facts.

[18] In PEBA’s case, it is continued and imbued with state authority under Part IX – Public Employees Benefits Agency of The Financial Administration Act, 1993, which states:

Public Employees Benefits Agency continued

63 The branch of the ministry over which the minister presides called the Public Employees Benefits Agency is continued.

Duties of agency

64(1) Under the direction of the minister, the Public Employees Benefits Agency is responsible for:

(a) establishing, operating, administering or managing any superannuation plan or benefits program that is designated by the Lieutenant Governor in Council;

(b) creating and maintaining any records, data and other documents that, in the opinion of the minister, may be required for the operation and administration of a benefits program or a superannuation plan;

(c) acting as an agent of a board that is responsible for administering a benefits program or a superannuation plan;

(d) providing administrative, managerial or other services pursuant to a contract entered into by the minister with an employer or administrator with respect to a benefits program or superannuation program; and

(e) performing any other duties with respect to a benefits program or superannuation plan that the minister considers necessary.

[19] As noted, the DIP Council is said to have been established pursuant to The Executive Government Administration Act, which governs the administration of the executive government in Saskatchewan.

[20] While the facts agreed upon by parties, regardless of their nature or content, do not and cannot relieve a court of its obligation to correctly interpret and apply the law, PEBA points out that it is an Agreed Fact that the DIP Council “is also established as an appellate body to hear appeals by Participating Employees with respect to disability claims.” However, PEBA has not identified the statute or regulation which grants the DIP Council that authority.

[21] On this basis, PEBA submits that the Chambers judge erred when he concluded that there was “no express or implied power in The Executive Government Administration Act that makes the DIP Council an administrative tribunal whose decisions are subject to judicial review” (at para 82).

[22] When interpreting the statutes in question in this case, the Chambers judge relied on Re Steve Dart Co. and D.J. Duer & Co., 1974 CanLII 2494 (FC), [1974] 2 FC 215.

[23] I can see no legal error in the Chambers judge’s bottom-line interpretation of s. 15 of The Executive Government Administration Act.

[24] PEBA submits that the Minister of Finance established the DIP Council through the exercise of the power afforded to ministers under s. 15 of The Executive Government Administration Act.

[25] To explain, assuming without deciding that it falls within the authority of the Legislative branch of government to fully delegate its law-making powers under s. 92(14) of The Constitution Act, 1867 to a minister of the Executive branch, s. 15 of The Executive Government Administration Act cannot be interpreted as a delegation of that power.

[26] For these reasons, I would not interfere with the Chambers judge’s bottom-line conclusion that there is “no express or implied power in The Executive Government Administration Act that makes the DIP Council an administrative tribunal whose decisions are subject to judicial review” (at para 82). There is no error in that conclusion. Fundamentally, this means that the Council Denials were not made in an exercise of state authority, which fully disposes of this appeal.

B. Not of a sufficient public character

[27] Even if there were questions about whether an advisory committee established under s. 15 of The Executive Government Administration Act could be empowered by a minister to exercise state decision-making authority, the Chambers judge did not err when he concluded that the purported exercise of state authority in this case was not of a sufficient public character to be subject to judicial review.

[28] In Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 FCR 605, Stratas J.A. identified a non-exhaustive list of factors to consider when determining whether a public body has acted in a private way when making a decision for the purpose of deciding whether judicial review of the decision is available.

[29] In my view, consideration of the Air Canada factors in the present context leads inexorably to two conclusions:

(a) neither PEBA nor the DIP Council have the attributes of an administrative tribunal established to make decisions that are subject to judicial review; and

(b) decisions about disputes as to benefits entitlement under the DIP are a matter of private, not public, law.

[30] In Air Canada, Stratas J.A. held that the character of the matter for which review is sought will be indicative of whether it is a private, commercial matter or is of broader importance to members of the general public.

[31] Here, the character of Ms. Banerjee’s claim is the denial of disability benefits to which she became entitled under the CBA as an employee of SaskTel and a member of Unifor.

[32] Examples of matters that have been found to be private or commercial in character include retail-space leasing decisions, debt settlement, expulsion from a private school, and dismissal of a contract employee (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190).

[33] On this basis, the character of the matter for which Ms. Banerjee has brought suit against PEBA suggests that commencing a civil action by issuing a statement of claim was appropriate.

C. Conclusion under the Air Canada factors

[70] Weighed in the balance, the Air Canada factors more strongly favour the conclusion that the Council Denials are private decisions against which relief may be sought in a civil action commenced by statement of claim.

D. A subsequently arising change of circumstances

[71] As may be seen from the foregoing analyses, the nature of PEBA and the DIP Council is an important factor in answering the legal question of whether Ms. Banerjee was required to seek judicial review of the Council Denials. It is notable, in that regard, that, in its factum, PEBA advised this Court that:

[22] …The Public Pensions and Benefits Administration Corporation Act, SS 2023, c 39, was passed and The Financial Administration Act, 1993, SS 1993 c F-13.4, was amended, adding section 64(2)(d), to allow PEBA to delegate operation, administration, or management of the benefits program to a statutorily-created not-for-profit corporation. Effective January 1, 2024, Plannera started handling those matters delegated by PEBA, although the Government of Saskatchewan ultimately remains liable for the Plan.

[72] More specifically, on January 1, 2024, pursuant to the PPBACA, the Legislature established a special-Act corporation called The Public Pension and Benefits Administration Corporation, i.e., Plannera:

Corporation established

3(1) The Public Pension and Benefits Administration Corporation is established as a not-for-profit corporation.

(2) The corporation is not an agent of the Crown.

[73] To briefly return to the fifth Air Canada factor, which asks about the extent to which a decision-maker is an agent of government or is directed, controlled, or significantly influenced by a public entity, it is notable that the Legislature enacted a specific provision to preclude the possibility of Plannera being considered “an agent of the Crown” (PPBACA, s. 3(2)).

[74] The PPBACA also amended s. 94(2) of The Financial Administration Act, 1993 to enable PEBA to delegate the operation, administration, or management of certain programs to Plannera by adding clause (d).

[75] Pursuant to the power under s. 94(2) of The Financial Administration Act, 1993, on December 14, 2023, the Lieutenant Governor in Council designated the DIP as one of the approximately 30 pension plans and benefits programs for which PEBA “may delegate the operation, administration, or management” to Plannera.

[76] Under a different order in council made effective January 1, 2024, the Lieutenant Governor in Council transferred all of PEBA’s contracts and assets to Plannera.

[77] As a result of these events, Plannera now operates, administers, and manages the DIP, and Plannera is not an agent of the Crown. As such, even if the DIP Council’s decisions could have been considered an exercise of state authority in the past, the regime under which the DIP is now operated, administered, and managed is at arm’s length from the Government of Saskatchewan.

IV. Costs awarded to the intervenors

[78] As noted, the Chambers judge awarded costs of $2,500 to each of Unifor and SaskTel as intervenors before the Court of King’s Bench. PEBA challenges those awards arguing that SaskTel and Unifor are not parties but rather “were invited to make submissions with respect to the arbitration question and actively participated in the preparation of materials.” However, that is not the whole story.

[79] When describing in the Judgment how Ms. Banerjee’s employer and union came to be involved in this litigation, the Chambers judge set the context for an award of costs in their favour:

[27] Notably, in its statement of defence, Saskatchewan raised no argument that the forum of Ms. Banerjee’s claim was ill-conceived, that she was obliged to seek judicial review of the DIP Council’s decision, that she should have arbitrated the denial of her claim, or that The Legislation Act, SS 2019, c L-10.2 or The Insurance Act, SS 2015, c I-9.11 provided immunity to Saskatchewan against a civil action.

[28] Four years after the entering of its defence, Saskatchewan brought a notice of application filed May 13, 2021, for an order “striking the entirety of the Statement of Claim” because “disputes between Unifor members and their employer, the Government of Saskatchewan, [should be resolved] through a prescribed grievance and arbitration procedure.”

[29] Another two years passed. Saskatchewan (then represented by different legal counsel) refined and broadened its earlier application. By notice of application filed April 17, 2023, Saskatchewan sought an order that decisions of the DIP Council should be properly challenged by way of judicial review and, if not by judicial review, through arbitration.

[30] By fiat of Justice Klatt on May 4, 2023, Unifor and SaskTel (as parties to the CBA) were granted intervenor status and permitted to make submissions on whether arbitration was the appropriate venue for Ms. Banerjee to advance her claim.

[80] The King’s Bench Rules recognize that a judge’s authority to award costs is a discretionary power (see Rule 545).

[81] I acknowledge that intervenors are generally not entitled to their costs (Harper v. Harper, [1980] 1 SCR 2 at 16), but this is not a circumstance where it can be said that SaskTel and Unifor had voluntarily decided to intervene in the litigation.

[82] While there may be a general rule against awarding costs to intervenors, I would not wade any further into the Chambers judge’s exercise of discretion in these circumstances.

V. Conclusion

[83] I would not disturb the conclusions in the Judgment that judicial review is not the appropriate forum for resolution of Ms. Banerjee’s claim to long-term disability benefits and that her claim “was appropriately initiated by statement of claim” (at para 94). I would also not interfere with the Chambers judge’s exercise of discretion to award costs in favour of SaskTel and Unifor, who were intervenors in the proceedings before the Court of King’s Bench.

[84] For these reasons, I would dismiss the appeal and award Ms. Banerjee $15,000 in costs. As SaskTel and Unifor only undertook watching briefs in this Court, I would make no award of costs against them or in their favour.

“Caldwell J.A.”

Caldwell J.A.

I concur. “Leurer C.J.S.”

Leurer C.J.S.

I concur. “Kilback J.A.”

Kilback J.A.