Date: 20040123
Docket: T-449-02
Citation: 2004 FC 100
Ottawa, Ontario, this 23rd day of January, 2004
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
DANNY LESKIW
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
MacKAY J.
[1] This is an application for judicial review of a decision of the Pension Appeals Board ("PAB"), dated February 14, 2002, in which the applicant's application for leave to appeal a decision of a Review Tribunal under the Canada Pension Plan ("CPP") was denied. The applicant seeks an Order granting his application for judicial review, and setting aside the decision of the PAB. He also seeks similar relief in relation to the decision of the Review Tribunal, and of the reconsideration decision of Human Resources Development Canada ("HRDC"), which had denied his application for retroactive commencement of pension paid to him under CPP. Ultimately he sought benefits that were paid to him from June 2000, for the period from July 1, 1997.
Background
[2] The applicant was born on June 25, 1937. On May 26, 2000, he applied for CPP retirement benefits. Then, on June 2, 2000, he sent a letter to HRDC requesting retroactive payment of CPP retirement benefits dating back to May 1999, and explained in his letter that it was his understanding that all applicants could request a retroactive benefit of up to one year.
[3] On June 21, 2000, the applicant received a letter from the Minister stating that he had been approved for CPP retirement benefits, with an effective start date of June 2000.
[4] On June 22, 2000, the applicant wrote a second letter to HRDC, concerning the lack of response to his previous letter dated June 2, 2000. He again requested an effective benefits date of May 1999, and advised HRDC that he had been informed by its own office that the CPP permitted retroactive payments of up to one year prior to the date of application. By its reconsideration decision dated September 15, 2000, HRDC concluded that the Canada Pension Plan, R.S. 1985, c. C-8 (the "Act") did not permit the retroactive payments requested by the applicant.
[5] By letter dated December 10, 2000, the applicant appealed that decision to a Canada Pension Plan Review Tribunal, this time claiming that officials from HRDC had advised him that he was entitled to receive benefits retroactively from July 1997, not May 1999 as he had previously claimed. On April 17, 2001, a Review Tribunal hearing was held, and on May 22, 2001, the applicant's appeal was dismissed.
[6] The Review Tribunal concluded that the Minister had correctly applied subsection 67(2) of the Act, which stipulates the date for commencement of pension benefits, and had correctly decided to refuse the applicant's request for retroactive benefits. The Review Tribunal noted that the applicant had also initiated proceedings in the Federal Court, seeking relief pursuant to s-s. 66(4) of the Act, in light of the alleged erroneous advice received from an HRDC official, but all parties were agreed that the Tribunal did not have jurisdiction to consider the issue of any erroneous advice. The Review Tribunal also found that the Minister's obligation to the applicant was statutory, not contractual as argued by Mr. Leskiw.
[7] The applicant requested leave to appeal the decision of the Review Tribunal to the PAB, and that request was referred to a designated member of the Board. On February 1, 2002, the applicant's application for leave to appeal was refused, a decision communicated to Mr. Leskiw by letter dated February 14, 2002. The following reasons were given for the decision:
I conclude that the Review Tribunal was correct in concluding that Subsection 66(4) does not give the Appellant a right to relief under the statute and that the obligations of the Minister under the statute are statutory not contractual. For these reasons leave to appeal is refused.
Relevant Legislation
[8] The relevant provisions of the Canada Pension Plan, R.S. 1985, c. C-8 , are as follows:
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66. (4) Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied
(a) a benefit, or portion thereof, to which that person would have been entitled under this Act,
. . .
the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made.
67. (2) For a retirement pension that commences to be payable on or after January 1, 1987 and where the applicant is not an estate, subject to section 62, where payment of the retirement pension is approved, the pension is payable for each month commencing with the latest of
(a) the month in which the applicant reached sixty years of age,
(b) the month following the month in which the applicant applied, if he was under seventy years of age when he applied,
. . .
(h) the month chosen by the applicant in his application.
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66. (4) Dans le cas où le ministre est convaincu qu'un avis erroné ou une erreur administrative survenus dans le cadre de l'application de la présente loi a eu pour résultat que soit refusé à cette personne, selon le cas :
a) en tout ou en partie, une prestation à laquelle elle aurait eu droit en vertu de la présente loi,
[...]
le ministre prend les mesures correctives qu'il estime indiquées pour placer la personne en question dans la situation où cette dernière se retrouverait sous l'autorité de la présente loi s'il n'y avait pas eu avis erroné ou erreur administrative.
67. (2) En ce qui concerne une pension de retraite qui commence à être payable le 1er janvier 1987 ou après, si les requérants ne sont pas des ayants droit et sous réserve de l'article 62, lorsque le paiement de la pension de retraite est approuvé, la pension est payable mensuellement et commence avec le dernier en date des mois suivants:
a) le mois au cours duquel le requérant atteint l'âge de soixante ans;
b) le mois suivant le mois au cours duquel le requérant a présenté une demande, s'il n'avait pas atteint l'âge de
[...]
h) le mois que choisit le requérant dans sa demande.
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[9] In this case, Mr. Leskiw, then 63 years of age, applied for a pension in May 2000, when he was under 70 years of age. Therefore, paragraph 67(2)(b) was applicable in his case, and his commencement date for benefits was June 2000, the month following that in which he applied.
[10] The relevant provisions of the Pension Appeals Board Rules of Procedure (Benefits), C.R.C., c. 390 (the "Rules of Procedure"), are as follows:
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8. (1) On receipt of an application for leave to appeal a decision of a Review Tribunal, the Registrar shall notify the Commissioner in writing that such an application has been filed.
(2) The Commissioner, after receiving a notification under subsection (1), shall provide to the Registrar, before the end of the third working day following the day on which the notification was received, the following:
(a) the names and addresses of the parties to the proceedings before the Review Tribunal;
(b) the decision of the Review Tribunal and the reasons therefor; and
(c) the documentary evidence that was filed with the Review Tribunal.
9. (1) The Chairman or Vice-Chairman may request the appellant or any party to produce documents or information required for the purpose of the granting or refusal of leave to appeal or an extension of time within which to apply for leave to appeal.
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8. (1) Sur réception d'une demande d'autorisation d'interjeter appel de la décision d'un tribunal de révision, le registraire avise par écrit le commissaire du dépôt de la demande.
(2) Après avoir reçu l'avis mentionné au paragraphe (1), le commissaire fournit au registraire, avant la fin du troisième jour ouvrable qui suit la date de réception de l'avis, les renseignements suivants:
a) les nom et adresse des parties aux procédures devant le tribunal de révision;
b) la décision du tribunal de révision et les motifs à l'appui;
c) la preuve documentaire déposée auprès du tribunal de révision.
9. (1) Le président ou le vice-président peut demander à l'appelant ou à toute partie de produire les documents ou les renseignements dont il a besoin pour décider d'accorder ou de refuser la demande d'autorisation d'interjeter appel ou de prorogation du délai imparti pour demander cette autorisation.
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(2) The appellant may produce documents that the appellant considers useful in support of the application under section 4 or 5.
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(2) L'appelant peut, à l'appui de sa demande aux termes des articles 4 ou 5, produire tout document qu'il juge utile.
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Standard of Review
[11] In Callihoo v. Canada (Attorney General), [2000] F.C.J. No. 612 at para. 15, a similar case involving a denial of CPP disability benefits, I considered case law regarding standard of review, and concluded that in reviewing a decision concerning an application for leave to appeal to the PAB, the Court considers whether the decision maker has applied the right test - that is, whether the application raises an arguable case in the sense that the decision maker has erred in law or unreasonably in his or her appreciation of the facts. If new evidence is adduced with the application, if the application raises an issue of law or relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration and it warrants the granting of leave.
Analysis
[12] In this case, the respondent submits that the PAB applied the correct test. It adopted the Review Tribunal's decision and reasons, and found that the Review Tribunal reached correct conclusions. I agree with the respondent's submission that the PAB applied the correct test in determining that Mr. Leskiw, in seeking leave to appeal, did not raise an arguable case, even though the reasons of the PAB might have been better expressed.
[13] S-s. 67(2) of the Act precludes the Minister from granting the applicant retroactive benefits. In this case, the applicant applied for CPP retirement benefits in May 2000, one month before his sixty-third birthday. Thus, the effective commencement date for payment of benefits was June 2000. There is no arguable case that error was made in refusing to grant the applicant retroactive retirement benefits. In applying s-s. 67(2), the decision correctly applied the law.
[14] The applicant submits that there are other grounds whereby this application for judicial review should be granted. It is said:
1. The PAB erred in referring to s-s. 66(4) of the Act, when the real issue involved subsection 67(2);
2. The PAB erred in concluding that the obligations of the Minister under the Act, especially s-s. 66(4), are statutory, not contractual; and,
3. The applicant's letter to the Review Tribunal dated April 19, 2001 was not submitted in the Tribunal's materials to the PAB, and this constituted a breach of Rule 8(2)(c) and 9(2) of the Rules of Procedure.
[15] In my opinion, the PAB did not err in its reference to s-s. 66(4). That reference reflects the issue discussed by the Review Tribunal in light of submissions by the applicant, in judicial review proceedings, that he had been misled by the Minister's staff. That reference by the PAB simply confirms its view that Mr. Leskiw had no right to relief under the statute, and that the Minister's obligations arise under the statute. Any rights arising under the Act are statutory, and do not result from a contract by the Minister with a claimant for benefits.
[16] The applicant's final concern is that his letter of April 19, 2001 to the Commissioner of Review Tribunals, written in respect of the applicant's claim that he had not received due process or a fair hearing before the Tribunal, was not included in the material submitted to the PAB, as may have been required by the PAB's Rules of Procedure. However, that letter, written after the Tribunal's decision, did not disclose any new or additional evidence to be considered by the PAB. Rather, it raised the applicant's concerns, a perceived lack of fairness by the Tribunal in consideration of his claim. In ordinary circumstances, established unfairness of process is considered grounds for the Court to intervene on judicial review, at least where the decision in question might have been affected by the process. Here, there is no basis for considering that if the letter of April 19, 2001 had been before the PAB it would arguably have reached a different conclusion. It's conclusion was consistent with s-s. 67(2) of the Act.
[17] The respondent submits that, if the applicant considered the letter was significant for his case, nothing prevented him from either enclosing his letter in his application for leave to appeal to the PAB, or simply stating his complaints in the submissions he made. That may be true, but it is still unfortunate that the letter was not submitted with other documents concerning the applicant's claim, to the PAB, even though it was written after the decision under review and had it been considered it would not have led to a different result than that reached by the Review Tribunal. There is no basis to conclude that the Review Tribunal's decision was wrong in law.
Conclusion
[18] The applicant did not demonstrate that he had an arguable case in respect of the decision reached by the PAB in relation to his leave application. There is no reason to intervene in respect of the decision to refuse Mr. Leskiw's application for leave to appeal.
ORDER
[19] IT IS ORDERED that this application for judicial review is dismissed.
"W. Andrew MacKay"
J.F.C.
Ottawa, Ontario
January 23, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-449-02
STYLE OF CAUSE: DANNY LESKIW
- and -
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 11, 2003
REASONS FOR ORDER AND ORDER OF MacKAY J.
DATED: January 23, 2004
APPEARANCES:
Danny Leskiw, Self-Represented
FOR APPLICANT
Adrian Joseph
FOR RESPONDENT
SOLICITORS OF RECORD:
Danny Leskiw, Self-Represented
Etobicoke, Ontario
FOR APPLICANT
Department of Justice
Ottawa, Ontario
FOR RESPONDENT
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