Raivitch v. Canada (Minister of Human Resources Development), 2006 FC 1279

 

 

 

Date: 20061025

Docket: T-529-06

Citation: 2006 FC 1279

Ottawa, Ontario, October 25, 2006

PRESENT:     The Honourable Mr. Justice Blais

 

 

BETWEEN:

VLADIMIR RAIVITCH

Applicant

and

 

MINISTER OF HUMAN RESOURCES DEVELOPMENT

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

 

 

[1]               This is an application for judicial review pursuant to subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision made by Ms. Susan Lefebvre, Senior Policy and Legislation Officer, Seniors and Pensions Policy Secretariat, Department of Human Resources Development. The decision, dated February 16, 2006, dismissed the applicant’s request for remedial actions available under subsection 66(4) of the Canada Pension Plan, R.S.C. 1985, c. C-8, (the “CPP”) where a person has been denied a benefit due to erroneous advice or administrative error.

 

FACTS

[2]               The applicant, Mr. Raivitch, was born in the Ukraine in 1940 and immigrated to Canada in 1991.

 

[3]                In July 2000, the applicant went to the branch office of Human Resources Development Canada (HRDC) in Edmonton, Alberta, with the alleged intent of applying for a disability pension under the CPP. At the time he allegedly had considerable difficulty expressing himself in the English language. The applicant alleges that in his limited English he explained to the HRDC intake worker at the service counter that he was unable to work due to his poor health, and asked for the appropriate form, which he says he assumed to be related to a disability-based pension. In fact, he apparently received a form to request a retirement pension under the CPP (“CPP-R”).

 

[4]               The applicant completed the CPP-R form he had been given, submitted it to HRDC, and was granted a retirement pension in October 2000, one month after his 60^th birthday. Mr. Raivitch does not assert that he sought any advice from HRDC at the time, nor prior to the subsequent filing of his original application in 2000.

 

[5]               The applicant alleges that he only discovered the error in 2002 with the help of his doctor, and after contacting HRDC, subsequently filed a disability pension form (“CPP-D”) in January 2003. The application was denied by the respondent. On appeal, the Review Tribunal ruled in January 2004 that the applicant was entitled to a CPP disability pension.

 

[6]               In March 2004, Ms. Lefebvre of HRDC conducted an internal review to assess the applicant’s allegations of administrative error pursuant to section 66(4) of the CPP.

 

[7]               The Review Tribunal’s January 2004 finding was overturned by a November 2005 decision of the Pension Appeals Board (the “Board”). The Board based its decision on the fact that the disability application was submitted after the relevant deadline for switching a retirement pension to a disability pension. The Board also cited its lack of jurisdiction to consider the effect of an administrative error.

 

[8]               In separate correspondence dated May 31, 2005 and December 20, 2005, the applicant made direct requests asking that HRDC review the decision denying him disability benefits, alleging that the source of the problem was an administrative error on the part of the respondent. On behalf of the respondent, Ms. Lefebvre concluded in a letter dated February 16^th, 2006, that the applicant had not been denied disability benefits due to an administrative error.

 

[9]               The applicant brought a notice for judicial review of this decision on March 23, 2006.

 

LEGISLATIVE CONTEXT

[10]           The legislative provision at the heart of this matter is found at subsection 66(4) of the CPP, which reads as follows:

 

[11]           No right of appeal exists for a decision made pursuant to subsection 66(4) of the CPP. The decision may, however, be examined by the Federal Court under judicial review: Paquette v. Canada (Attorney General), [2005] F.C.J. No. 1844 at paragraph 39 (C.A.). With respect to the respondent's decision of February 16, 2006, subsection 66(4) of the CPP gives the respondent discretion “to take remedial action to place a person in the position that the person would be in, if the Minister is satisfied that, as a result of erroneous advice or administrative error, that person has been denied…” a benefit that is due (Paquette, above, at paragraph 40).

 

ISSUES

[12]           This application raises the following issues:

1.      Whether the decision of the Board was patently unreasonable. More specifically:

 

a)      whether the decision by the respondent can be supported by the evidence; and

b)      whether the respondent failed to consider the appropriate factors in reaching its decision.

 

2.     Whether the conduct of the respondent amounted to a denial of procedural fairness.

 

 

Standard of Review

[13]           I note at the outset that the applicant and respondent concur that the applicable standard of review of the decision in this case is that of patent unreasonableness.

 

[14]           In light of the discretionary and factually-oriented nature of the Minister’s decision at issue, I agree that the decision must be found to be patently unreasonable in order for this Court to intervene.

 

[15]           This finding of a patently unreasonable standard is substantiated by similar conclusions in Leskiw v. Canada (Attorney General), [2003] F.C.J. No. 748 at paragraph 22 and Kissoon v. Canada (Minister of Human Resources Development), [2004] F.C.J. No. 1949 at paragraph 4, both dealing with a decision under subsection 66(4) of the CPP.

 

[16]           On the issue of procedural fairness, the appropriate standard of review is that of correctness. As Justice Marshall Rothstein articulated on behalf of a unanimous Federal Court of Appeal, in Fetherston v. Canada (Attorney General), [2005] F.C.J. No. 544 (C.A.) at paragraph 16: “Procedural fairness questions are not subject to a pragmatic and functional analysis. The courts are to provide the legal answer to such questions”.

 

ANALYSIS

a) Whether the decision of the respondent was supported by the evidence

[17]             The respondent contends that the decision at issue was sufficiently supported by the evidence, while the applicant maintains that it was not. Indeed, this is the pivotal issue for determination in this matter. In light of the divergence of the parties’ perspectives on this issue, it is worth considering the applicable legal principles in some depth.

 

[18]           I begin by reiterating that the role of this Court is not to re-weigh the evidence but rather to assess whether the proper factors and appropriate procedures were followed by the Minister in arriving at the decision in question: Suresh, above, at paragraph 34. As succinctly stated by my colleague Justice Judith A. Snider in relation to a CPP subsection 66(4) decision in Kissoon, supra, at paragraph 5:

A finding of erroneous advice or administrative error is one of fact, which also signals to a court that deference should be accorded to the Minister. Evidence should not be reweighed nor findings tampered with merely because this Court would have come to a different conclusion.

 

[19]           In the present matter, it is thus incumbent on this Court to decide whether the Minister’s denial of Mr. Raivitch’s assertion that an administrative error was committed in dealing with his case, was sufficiently founded on available evidence.

 

[20]           It is important to keep in mind that the subject of the relevant investigation, and the evidence on which the respondent’s decision was founded, centred on the transaction between Mr. Raivitch and the intake worker at the HRDC Centre in Edmonton. This was the critical focal point on which the applicant’s original claim under subsection 66(4) of the CPP was founded. As such, it was also the temporal segment on which the associated investigation was concentrated, though it was logically informed by subsequent events which shed light on the event.

 

[21]           In reviewing whether an administrative error may have been committed, the respondent:

• reviewed the available documentary evidence, including Mr. Raivitch’s CPP applications; associated departmental records and reports that could have potentially been generated in dealings with the applicant; correspondence between the applicant and various representatives of the respondent; documentation pertaining to the earlier proceedings instituted by the applicant, as well as the decisions of the Review Tribunal and Pension Appeals Board that emerged as a result;

 

• consulted supervisory personnel from the Edmonton office who might be able to provide insight into what transpired with regard to the impugned transaction between the applicant and respondent;

 

• consulted other representatives of the respondent who had been involved in previous proceedings in order to better understand the evidence that had been presented;

 

• ascertained the relevant policies, practices and procedures governing the content and distribution of forms to the regions (presumably to determine whether the Edmonton office had deviated from accepted guidelines in providing an earlier version of the CPP form);

 

• determined that there had never been a dual CPP-R/CPP-D form in circulation, as alleged by the applicant;

 

• considered informational material that would have been available to the applicant at the point of the transaction; and

 

• generally considered the applicant’s allegations, including claims around the impact of language ability, against direct and implied evidence available in the file.

 

[22]           The applicant contends that the medical evidence of his disability was readily available and would have been sufficient to substantiate a CPP-D application in July 2000. Indeed, I draw from the applicant’s submissions that this evidence would have been in his HRDC file, had he been given the correct form by HRDC. That alone is not material to the present analysis. However, the applicant further submits that the respondent’s conclusion, articulated in the February 16, 2006 decision, was itself based on its finding that there was insufficient medical evidence corresponding with the relevant qualifying period in its files. In the applicant’s view, this was solely attributable to the respondent’s error in providing the incorrect form. In other words, the applicant challenges Ms. Lefebvre’s assertion at paragraph 12 of her affidavit where she concluded that if Mr. Raivitch “…had a number of health problems, there was insufficient medical evidence on file to substantiate that he was disabled on or before his minimum qualifying period of December 31^st, 1998”. The applicant argues that this reasoning on the part of the decision-maker was therefore deficient, and should form the basis for this Court’s intervention in the respondent’s decision. I disagree. (my emphasis)

 

[23]           The impugned decision was based on a broad and seemingly detailed assessment of various records available, the Review Tribunal proceedings and evidence, interviews, letters, policies, forms and procedures and other evidence revealed through the respondent’s internal review. The applicant’s allegation concerning the medical evidence, even if it were correct, would not be sufficient to displace all of the weight of all of the other elements considered by the respondent in arriving at its decision.

 

[24]           Based on its internal review, the respondent concluded that there was insufficient evidence to conclude anything other than relevant policies and procedures had been followed in the circumstances. Therefore, in the respondent’s view, no administrative error had occurred. The respondent also concluded that the dual CPP-R/CPP-D version of the forms were not in circulation at the time the applicant made his application in July 2000, that it was not an error to continue to have the earlier versions of the form in use at the time and that the applicant received the form that he intended to receive at the time, specifically the CPP-R application form. The respondent based its decision on what appears to be a thorough review of available evidence and the decision flowed reasonably from this evidence.

 

[25]           Therefore, in my view, the respondent’s decision was supported by the evidence.

 

b) Whether the respondent failed to consider the appropriate factors in reaching its decision.

 

[26]           The applicant also alleges that the respondent failed to give proper consideration to the former’s language proficiency, an important factor in making its decision as to whether or not an administrative error has been committed. Again, it is important to remember that the role of this Court in the present proceeding is not to determine whether the decision made by the respondent is that which this Court would have made in light of all of the evidence, but rather whether the respondent was legally justified in coming to the conclusion it did.

 

[27]           The record is clear that the respondent did in fact consider the potential impact that language may have played in the circumstances of this matter and that this was factored into its assessment and eventual determination.

 

2. Whether the conduct of the respondent amounted to a denial of procedural fairness.

 

[28]           The content of the duty of procedural fairness is variable and is to be decided in the specific context of each case. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada set out a five-part analysis for determining the content of the common law duty of procedural fairness in particular cases. Those five factors include: (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the decision-maker. This list is not exhaustive (Baker, at paragraphs 23-28).

 

[29]           The first factor is the nature of the decision and the degree to which the process resembles the judicial process (Baker, at paragraph 23). By extension, consideration should be given to the legal content of the decision, as suggested by Justice Rothstein in Fetherston, above, at paragraph 20: “…there is very little legal content to the decision and ultimately, it is one to which discretion attaches. These considerations imply neither strong nor weak procedural protections.”

 

[30]           The respondent has not established a procedure for dealing with claims under subsection 66(4) of the CPP as noted by Justice Barry L. Strayer in Leskiw v. Canada (Attorney General), [2004] F.C.J. No. 803 (F.C.A.) at paragraph 7: “Subsection 66(4) provides authority for the Minister or his officer to correct a loss of benefits due to erroneous advice, but prescribes no procedures. It simply requires that the Minister be "satisfied" that such advice resulted in a loss of benefits”. Therefore, a decision by the Minister pursuant to subsection 66(4) is entirely discretionary.

 

[31]            In the case at bar, the decision was taken within the general framework of a discretionary, administrative decision made subsequent to an internal review, which contained little legal content. This process is not akin to a judicial decision-making process, and correspondingly, a lower procedural fairness standard is applicable.

 

[32]           As for the second factor, in Baker, above, at paragraph 24, Justice Claire L’Heureux-Dubé discussed two instances where greater procedural protection will be provided: 1) where there is no appeal procedure provided, and 2) where the decision is final and determinative of the issue. In the present case, there was no right of appeal of the Minister’s decision of February 2006, and in this sense it was final. However, there is no privative clause and judicial review remains available. This suggests weaker procedural safeguards: Fetherston, above, at paragraph 21.

 

[33]           Turning next to the third factor, it is clear that the decision is subjectively important to the applicant and that it has had a negative impact on his financial situation. Though this adverse impact on the applicant’s financial interests is undoubtedly important to him, in the continuum of the impact of administratively-based decisions, it is fair to place this somewhere on the lower end of the scale. In other words, some level of procedural fairness is warranted but not at an overly onerous level.

 

[34]           The fourth factor is that of legitimate expectation. If a person has a legitimate expectation that certain procedures will be followed, these procedures will be mandated by the duty of fairness (Baker, above, at paragraph 26). In the circumstances of the matter at hand, the reasonable and relevant legitimate expectation would be that the Minister conduct an internal review in order to determine whether an administrative error occurred, and subsequently base its decision on the available evidence. This is indeed what has happened in this case, as discussed above.

 

[35]           The final factor is the choice of procedures adopted by the decision-maker. In the circumstances of this case, this factor relates to the ability of the applicant to make representations, as well as the choice of investigative measures undertaken by the Minister in response to the allegation of administrative error instituted by the applicant. As noted at the outset, there are no prescribed procedures for investigating subsection 66(4) claims under the CPP; the procedures are at the discretion of the Minister, which is in line with the discretionary nature of the decision itself.

 

[36]           In this matter, the decision-maker conducted numerous interviews with HRDC employees in an effort to ascertain whether an administrative error had indeed been committed with regard to the applicant. The respondent maintains that its investigation considered all reasonable avenues for assessing a potential administrative error: documentary, archival, personal interviews with employees and correspondence, as well as the possible impact of Mr. Raivitch’s deficiencies in the English language on the situation. I find that the respondent adopted a reasonable and appropriate approach for determining the applicant’s claim. The respondent also allowed for the possibility of representations, specifically in the form of the correspondence relating to the review in question, but also throughout the course of the prior proceedings dealing with the same claim, which ultimately informed the impugned decision as well.

 

[37]            In light of the record and all of the circumstances, it appears as if the respondent undertook a procedurally fair process for determining whether an error was committed at the time of the impugned transaction in July 2000. There is no substantiated evidence that Mr. Raivitch has been denied procedural fairness in the determination of his claim. His matter was internally investigated on at least two occasions, in a thorough and reasonable manner. Furthermore, it appears as if the respondent remained cognizant and took consideration of the factors creating specificities in relation to the applicant’s case in the course of these internal reviews.

 

[38]           For all of these, I conclude that the respondent met the common law duty of procedural fairness in the circumstances of this matter.

 

CONCLUSION

[39]           In view of the foregoing, I conclude that the respondent had sufficient evidence and provided for an adequate procedure in determining that the applicant had not been denied a benefit due to erroneous advice or an administrative error. In so doing, the respondent in effect complied with any requirements of section 66(4) of the Canada Pension Plan with regard to its decision, and with the common law duty of procedural fairness in arriving at this decision, and on neither count did the respondent commit a reviewable error. Accordingly, the present application for judicial review is dismissed.

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

This judicial review is dismissed.

 

 

 

“Pierre Blais”

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-529-06

 

STYLE OF CAUSE:                          VLADIMIR RAIVITCH v. MINISTER OF HUMAN RESOURCES DEVELOPMENT

 

 

PLACE OF HEARING:                    Edmonton, Alberta

 

DATE OF HEARING:                      October 2, 2006

 

REASONS FOR JUDGMENT AND JUDGMENT:          BLAIS J.

 

DATED:                                             October 25, 2006

 

 

 

APPEARANCES:

 

Andrew  Bachelder	FOR THE APPLICANT
Stuart Herbert	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Edmonton Centre for Equal Justice Edmonton, Alberta	FOR THE APPLICANT
Johns H. Sims, Q.C. Deputy Attorney General of Canada Edmonton, Alberta	FOR THE RESPONDENT