[1] Mr. Kissoon has been a recipient of disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 ("CPP") since 1989. Effective December 2000, he also began receiving disabled contributor's benefits for his twin daughters, born in December 1990. He has been seeking to have his daughters' benefits made effective from December 1990. The final refusal of his request was made by Mr. Edward Tomagno on behalf of the Minister of Human Resources Development ("Minister") under subsection 66(4) of the CPP. In the Minister's decision dated June 10, 2003, it was determined that Mr. Kissoon was not denied a benefit to which he would have been entitled under the CPP by reason of erroneous advice received or administrative error. Mr. Kissoon is applying to this Court for a judicial review of that decision.
The sequence of events leading to this hearing are as follows:
1. Mr. Kissoon first sought such benefits in an application submitted on March 22, 1990 ("First Application"), which was approved. The effective date of payment for these benefits was determined to be April 1989.
2. On December 22, 1990, his twin daughters were born. Pursuant to the CPP, Mr. Kissoon's children are entitled to receive disabled contributor's benefits under the CPP upon application.
3. On November 29, 2001, the Respondent received an "Application for Benefits for Under Age 18 Children of Disabled Contributor" ("Second Application"), which was submitted by Mr. Kissoon on behalf of his daughters. In his Second Application, Mr. Kissoon indicated that his children applied for benefits under the CPP in 1990 but that he did not receive a reply from the Respondent. Mr. Kissoon also wrote, "I received some information about changes in Income Security and it shows that the children are entitled to these benefits since they have been born".
4. The Respondent approved Mr. Kissoon's Second Application and determined that the effective date of payment for these benefits was December 2000.
5. Believing that the benefits for his children should be retroactive to the date of their birth, by letter dated January 4, 2002, Mr. Kissoon submitted a request that the effective date of payment for his children's benefits be reconsidered. In his letter he explained that "I applied for my children approximately six months after they were born. I got no reply from your office so I thought that my children were not entitled to receive any money".
6. The Respondent denied his request by letter dated February 6, 2002.
7. Mr. Kissoon, by letter dated February 11, 2002, appealed this decision to the Review Tribunal, constituted pursuant to s. 82 of the CPP. After an oral hearing, the Review Tribunal dismissed his appeal and stated that it has:
. . no jurisdiction to waive or vary clear statutory requirements. In this case, the provisions of Section 74 are clear, and the maximum period of retroactivity is to December 2000.
The Review Tribunal also stated that:
. . .pursuant to the provisions of subsection 66(4) of the CPP, if the Minister is satisfied that as a result of erroneous advice or administrative error in the administration of the CPP, a benefit, or portion thereof, to which that person would have been entitled under the CPP has been denied, the Minister shall take such remedial action as the Minister considers appropriate.
. . . Without commenting as to whether or not any erroneous advice or administrative error has occurred, this is something the Appellant may pursue directly with the Minister.
8. By letter dated November 19, 2002, Mr. Kissoon requested that his file be reviewed under the administrative error provisions of the CPP. There were two grounds upon which he based his allegation of administrative error. First, Mr. Kissoon alleged that he made an application for benefits on behalf of his children in 1991, to which there was no reply; and second, he stated that his appeal was erroneously sent to the Review Tribunal.
9. By letter dated December 31, 2002, Mr. Kissoon was informed that there was no erroneous advice given or administrative error made concerning his claim.
10. Mr. Kissoon sent a second letter, dated May 5, 2003, directly to the office of the Minister requesting that his file be reviewed under the administrative error provisions of the CPP.
11. The decision under judicial review is that of Mr. Tomagno, dated June 10, 2003, wherein he determined on behalf of the Minister that the Applicant did not receive erroneous advice and no administrative error occurred.
Departmental officials, acting on behalf of the Minister, have again reviewed your case, and are unable to change the decision conveyed in their letter of December 31, 2002. They are satisfied that there is no evidence of administrative error or erroneous advice on the part of the department which resulted in a loss of benefits. The effective date of the children's benefits must remain as December 2000, which is eleven months prior to the month in which the application was received.
Issues
[2] The issues raised by this application are as follows:
1. Is the doctrine of legitimate expectation engaged on the facts of this case?
2. Did the Minister commit a reviewable error in determining that Mr. Kissoon did not receive erroneous advice in relation to his Second Application in that he was not advised, before the hearing, that the Review Tribunal had no jurisdiction to waive the statutory provisions of the CPP?
3. Did the Minister commit a reviewable error in determining that there was no administrative error in relation to Mr. Kissoon's Second Application, by not concluding that Mr. Kissoon had made application for his daughters' benefits in 1991?
Analysis
[3] For the reasons that follow, this application should not succeed.
Standard of Review
[4] The decision of the Minister under section 66(4) of the CPP is discretionary. Although the Minister "shall" take remedial action that it considers appropriate, this duty arises only once the Minister is satisfied that erroneous advice has been given or that an administrative error has occurred. The requirement to take remedial action is conditional and, therefore, does not fetter the Minister's discretion to first satisfy herself that an error has been made ([1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2). Given the discretionary nature of the Minister's decision, the standard of review is patent unreasonableness (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at 24). This means that the Minister's decision should only be set aside if it is "made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors" (Maple Lodge Farms, supra).
[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. (Suresh, supra at 24-25).
Issue #1: Is the doctrine of legitimate expectation engaged on the facts of this case?
[6] Although the issue of legitimate expectations was raised by Mr. Kissoon in his written submissions, I am unable to conclude that it is relevant to these proceedings. This doctrine "affords a party affected by the decision of a public official an opportunity to make representations in circumstances ... where, based on the conduct of the public official, a party has been led to believe that his or her rights would not be affected without consultation." (Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at 1203-1204). This doctrine is an extension of the rules of natural justice and procedural fairness, nothing more (Old St. Boniface Residents Assn. Inc., supra). I am not convinced that Mr. Kissoon has been denied procedural fairness at any stage. He has pursued every avenue of appeal, been heard, had his file searched and been given reasons by the Respondent for its decision. Further, there is no evidence that he was told by a representative of the Minister that a particular procedural right would be granted to him, which was subsequently denied. For these reasons, I do not think it can be said that the doctrine of legitimate expectation is engaged on the facts of this case.
Issue #2: Did the Minister commit a reviewable error in determining that the Applicant did not receive erroneous advice?
[7] Mr. Kissoon submits that he was given erroneous advice by a representative of the Minister to appeal to the Review Tribunal when it was clear that the Tribunal had no jurisdiction to deal with his case. Mr. Kissoon paid $1500.00 to be represented at this hearing. In Mr. Kissoon's view, the Minister erred by not acknowledging this erroneous advice.
[8] The Respondent did not have a positive obligation to provide legal advice to Mr. Kissoon. The information provided by the Respondent to Mr. Kissoon, in its letter dated February 6, 2002, is consistent with sections 81 and 82 of the CPP. It was up to Mr. Kissoon to determine whether his case raised an arguable issue. Mr. Kissoon was represented at his hearing before the Review Tribunal, which suggests that he did obtain legal advice apart from that which was provided to him by the Respondent. The Respondent cannot be blamed for the failure of the Mr. Kissoon's representative to properly advise him of his rights under the CPP. Accordingly, there is no reviewable error by the Minister.
Issue #3: Did the Minister commit a reviewable error in determining that there was no administrative error in relation to the Second Application?
[9] Mr. Kissoon claims that, when he wrote to the Respondent in respect of his own benefits, he also enclosed an application for benefits on behalf of his two children in the same envelope. While the letter concerning his own benefits was stamped as received on January 24, 1991, the Respondent denies receiving an application for the daughters' benefits. In the submission of Mr. Kissoon, the Respondent committed an administrative error when it acknowledged receiving a letter from Mr. Kissoon but not the application that was enclosed in the same envelope. In his view, the Minister relied upon unsubstantiated evidence or documentation in arriving at her decision to deny benefits to his children.
[10] The Respondent would have made a reviewable error if the decision was made without regard to the evidence before it or on the basis of evidence that was not before it. In this case, I can see not such error. The Minister considered all of the evidence before her and found that it did not establish that an error had been made. In other words, after weighing all of the evidence, the Minister found that it did not establish, on a balance of probabilities, that Mr. Kissoon had submitted an application for children's benefits prior to November 29, 2001.
[11] A review of the evidence before the Minister and before me indicates that there were a number of inconsistencies with respect to the alleged date on which Mr. Kissoon claims he submitted an application on behalf of his daughters. It is apparent from the record that the Minister thoroughly reviewed Mr. Kissoon's file and found insufficient evidence to support his claim. In the absence of satisfactory proof that an administrative error was committed, it was reasonable for the Minister to not exercise her discretion in a manner favourable to Mr. Kissoon. Therefore, I am satisfied that the Minister's decision was not made arbitrarily or in bad faith, it can be supported on the evidence, and the Minister considered the appropriate factors. There is no reviewable error.
Conclusion
[12] For these reasons, this application for judicial review will be dismissed. In my discretion, I decline to award costs.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed, without costs.
"Judith A. Snider"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1069-03
STYLE OF CAUSE: TONY KISSOON
Applicant
and
MINISTER OF HUMAN DEVELOPMENT RESOURCES
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 7, 2004
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: JANUARY 8, 2004
APPEARANCES BY: Mr. Tony Kissoon
FOR APPLICANT,
ON HIS OWN BEHALF
Ms. Shawna Noseworthy
Mr. Michel Mathiew
FOR RESPONDENT
SOLICITORS OF RECORD: Tony Kissoon
Meaford, Ontario
. FOR APPLICANT,
ON HIS OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040108
Docket: T-1069-03
BETWEEN:
TONY KISSOON
Applicant
and
MINISTER OF HUMAN DEVELOPMENT RESOURCES
Respondent
REASONS FOR ORDER
AND ORDER
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