Date: 20050120
Docket: T-1107-04
Citation: 2005 FC 87
BETWEEN:
CARL T. KENNY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
PHELAN J.
[1] This judicial review arises from a redetermination of the exercise of the Minister's discretion to deduct from Mr. Kenny's CPP payment and remit to the province those amounts paid by the Province of New Brunswick under its social assistance program.
[2] The basic history of Mr. Kenny's disputes with the Minister of Human Resources Development Canada and the legal conclusions are fully and clearly set forth in the judgment of Justice Layden-Stevenson dated March 25, 2004 and I adopt them as part of these Reasons.
[3] In summary Mr. Kenny had applied for Canada Pension Plan disability benefits almost ten years ago. He had previously granted an irrevocable assignment of any CPP benefits to the Minister of Social Services of the Province of New Brunswick (Social Services) as a condition of the payment of welfare benefits to his wife.
[4] Although Mr. Kenny was ultimately successful in his pursuit of CPP disability benefits, the manner of obtaining this success is still an issue for Mr. Kenny. As a result of his success he was entitled to a retroactive payment of $54,444.39 of which $50,314.01 was the amount assigned to the Province of New Brunswick.
[5] In March 2004 Justice Layden-Stevenson dealt with the judicial review of the Minister's decision to deduct $50,314.01 in favour of the province. In reviewing the statutory and regulatory scheme, Justice Layden-Stevenson noted that subsection 76(4) of the Canada Pension Plan Regulations prohibits any deduction of CPP payment in these types of circumstances unless four conditions are met: (1) the Minister receives certain information from the provincial authorities; (2) an irrevocable consent and written request for access to certain information is received; (3) the amount of payment to the provincial authority is greater than $50; and (4) "the Minister and the appropriate provincial authorities have concluded an agreement in writing authorizing the deduction and payment.
[6] In Justice Layden-Stevenson's decision she noted that, while there was reference in legal argument to an agreement between the Minister and provincial authorities, there was no evidence of its existence before her nor evidence from which she could infer its existence. Since the Minister's discretion to deduct is based on these four pre-conditions and there was no evidence of compliance with the last of these, the Minister's decision was quashed, the judicial review was allowed and the matter was "remitted to the Minister for redetermination in accordance with the statute and regulations".
[7] On April 29, 2004, the Minister, by letter to Mr. Kenny, advised of its new decision to reimburse the Province in the amount $50,314.01. Included with the letter was said to be a copy of the applicable federal-provincial agreement. It turns out that the agreement sent was the wrong agreement and the correct agreement was provided approximately three (3) weeks later.
[8] Mr. Kenny again objected to this redetermination on many of the same grounds as dealt with by Justice Layden-Stevenson. He objects to the redetermination itself and to the fact that the Minister produced the new evidence of the federal-provincial agreement.
[9] Mr. Kenny, quite properly, agreed that he should not be entitled to "double dip" in social benefits but contests the process by which the deduction of CPP benefits occurred and the expense he incurred in his battle.
[10] With respect to the Minister's redetermination decision, there is no basis for quashing it. All four preconditions required by statute and noted by Justice Layden-Stevenson have now been met; in fact the federal-provincial agreement had been in place since 1994. It would be contrary to the regulatory scheme and arguably a travesty of justice to permit "double dipping" of social assistance benefits. Therefore the Minister's exercise of discretion was more than reasonable.
[11] While Mr. Kenny is unsuccessful in this judicial review, given the history of his litigation it was not unreasonable for him to seek judicial review if for no more salutary purpose than to receive the objective assurance that the Minister had followed the statute and regulations as mandated by Justice Layden-Stevenson.
[12] Therefore in the exercise of the Court's discretion over costs, Mr. Kenny will be entitled to costs for disbursements in the fixed amount of $1,500.
[13] An order will issue dismissing this judicial review with costs to the Applicant in the amount of $1,500.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1107-04
STYLE OF CAUSE: CARL KENNY v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: December 14, 2004
REASONS FOR : Phelan J.
DATED: January 20, 2005
APPEARANCES:
Carl Kenny ON HIS OWN BEHALF
Mr. Stephan Bertrand
Ottawa, Ontario FOR THE RESPONDENT
SOLICITORS OF RECORD:
Carl Kenny ON HIS OWN BEHALF
Mr. John H. Sims
Deputy Attorney General of Canaa
Ottawa, Ontario FOR THE RESPONDENT
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