Taylor v. Human Resources, 2005 TCC 496

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Appeal heard on July 26, 2005, at Fredericton, New Brunswick, by

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DECISION

          WHEREAS the Appellant has appealed to a Review Tribunal from a decision made by the Respondent pursuant to the Old Age Security Act, R.S. 1985, c.O-9 (the Act);

          AND WHEREAS that appeal has been referred to the Tax Court of Canada for a decision pursuant to subsection 28(2) of the Act;

          AND having heard the evidence of the Appellant and the submissions of the Appellant and of counsel for the Respondent;

          AND it appearing that the Appellant does not advance as a ground of appeal that a decision made by the Respondent of the kind described in subsection 28(2) of the Act was incorrectly made;

          IT IS THE DECISION OF THIS COURT that it has no jurisdiction to determine any ground of appeal being advanced by the Appellant, and the Commissioner of Review Tribunal shall be so advised.

Signed at Ottawa, Canada, this 8th day of August, 2005.

Bowie J.

REASONS FOR DECISION

BowieJ.

[1]      This is an appeal from a decision of the Minister of Human Resources Development (the Minister) under the provisions of the Old Age Security Act[1] (the Act). An appeal may be taken under that statute from a decision of the Minister to a Review Tribunal. However, subsection 28(2) provides that if a ground of appeal is that the Minister has made an incorrect decision as to the income of the Appellant, then the appeal on that ground must be referred to this Court for decision. That is what has happened in the present case.

[2]      Subsection 28(2) of the Act reads as follows:

28(2)     Where, on an appeal to a Review Tribunal, it is a ground of the appeal that the decision made by the Minister as to the income or income from a particular source or sources of an applicant or beneficiary or of the spouse or common-law partner of the applicant or beneficiary was incorrectly made, the appeal on that ground shall, in accordance with the regulations, be referred for decision to the Tax Court of Canada, whose decision, subject only to variation by that Court in accordance with any decision on an appeal under the Tax Court of Canada Act relevant to the appeal to the Review Tribunal, is final and binding for all purposes of the appeal to the Review Tribunal except in accordance with the Federal Courts Act.

[3]      The facts of this case are quite simple, and they are not in dispute. The Appellant applied for benefits under the Act, and yearly since at least 1999 he has been paid benefits, including the guaranteed income supplement. The computation of the supplement to which he was entitled depends in part upon the income of his spouse, and section 15 of the Act requires that income to be declared annually. In April 2002, the Minister determined that the income of the Appellant's spouse had been understated for each year since 1998. The Appellant agreed during the hearing before me that he had stated his spouse's income after the deduction of income tax, rather than her gross income, for each of these years. This, he said, was because some employee of the Minister's department had told him that it was the income net of tax that he was supposed to declare. He did this, and the result was that he was overpaid supplemental benefits of $4,650.00 between July 1999 and April 2004. On April 27, 2004 the Minister informed him of the overpayment, and that he would have to repay it.

[4]      At the hearing of the appeal, the Appellant stated that he accepted the Minister's decision as to the amount of his wife's income as being accurate. It is quite clear that a person's income for purposes of the Act means their gross income before deduction of any income tax. The only ground of appeal that the Appellant wishes to pursue is his contention that it was not lawful for the Minister to make a redetermination of his entitlement to benefits and to seek to recover the overpayment so long after the overpayments were made.

[5]      This Court's jurisdiction in the matter is defined by Parliament. Mr. Taylor does not suggest that any decision of the Minister as to his wife's income was incorrectly made. In fact, he accepts that the decision was correctly made, disputing only his right to make it at such a late date. This is not a matter within the jurisdiction of this Court, and the Commissioner of Review Tribunals shall be so advised in accordance with section 44 of the Old Age Security Regulations.

Signed at Ottawa, Canada, this 8th day of August, 2005.

Bowie J.