Date: 20101221
Docket: T-48-10
Citation: 2010 FC 1307
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Ottawa, Ontario, December 21, 2010
PRESENT: The Honourable Mr. Justice Pinard
BETWEEN:
ALPHA SAKÉ BARRY
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of a decision of the Minister of Human Resources and Skills
Development Canada (the Minister) made under section 18.1 of the Federal
Courts Act, R.S., 1985, c. F-7, by Alpha Saké Barry (the applicant). The
Minister determined that no administrative error had been committed when an
overpayment of Old Age Security benefits and the Guaranteed Income Supplement
(GIS) was claimed from the applicant.
* * * * * * * *
[2]
The applicant was born
on February 12, 1937. He applied for an Old Age Security pension and the
GIS, and corresponding payments started on or about February 12, 2002. When he
applied for these benefits, the applicant described his then marital status as
being divorced.
[3]
On June 20, 2003,
the applicant took up residence with his new common-law partner, Lise Mercier. In
his annual income tax returns and statements of benefits to the Canada Revenue
Agency (CRA), the applicant described his status as common-law partner and
reported his common-law partner’s earnings.
[4]
The respondent submits
that a notice is sent to beneficiaries automatically every year (see
paragraph 9 of Marjolaine Lebel’s affidavit). This notice indicates the
marital status recorded in the Minister’s file and advises that the Minister
must be informed of any change in that status. The applicant, who did not
complete the GIS application forms for 2003 to 2008, denies having received
such notices between 2002 and 2008.
[5]
Around July 16,
2009, the applicant, finding himself in a difficult financial position,
requested his GIS for that month. On July 21, 2009, the Minister asked the
CRA for the applicant’s current marital status, since he did not have the
applicant’s GIS application forms. When the Minister learned that the applicant
was a common-law partner, he asked the applicant to complete a Statutory
Declaration of Common-law Union as well as the GIS application forms for 2003
to 2008, which the applicant did on August 5, 2009.
[6]
The Minister then
determined that, since the applicant had received benefits as if he were
divorced between 2003 and 2008, he had received an overpayment of $24,457.95
during that period. In a letter to the applicant dated September 1, 2009,
an officer of the Minister asked him to return the overpayment.
[7]
The applicant requested
a reconsideration of the decision. In a letter sent to the applicant on December 10,
2009, the Minister confirmed his decision and informed him that his benefits
would be reduced by about $200 a month, from $400 a month, until the
overpayment had been collected, hence this application for judicial review.
[8]
On November 1,
2009, the applicant and his common-law partner separated.
* * * * * * * *
[9]
In his reconsideration,
the Minister noted that the applicant had been in a common-law union since
June 20, 2003, but that he had only informed the Department of that status
on August 5, 2009. The Minister relies on subsection 15(9) of the Old
Age Security Act, R.S., 1985, c. O-9 (the Act), which stipulates that every
applicant shall inform the Minister without delay if they had a common-law
partner at the beginning of the month, not having had a common-law partner at
the beginning of the previous month.
[10]
The Minister also
pointed out that claimants are notified in July of each year that their new
benefit amount has been established on the basis of their last income tax
return and their current marital status. They are also advised to inform the
Minister of any changes to their marital status.
[11]
Under the GIS regime,
the applicant was considered to have been in a common-law union since
July 2004. The Minister therefore recalculated the GIS benefit rate for
the July 2004 to June 2009 period and found that an overpayment of
$24,457.95 had been made.
[12]
The Minister noted that
the applicant’s subsequent separation from his common-law partner had no impact
on the amount to be collected.
* * * * * * * *
[13]
The relevant sections
of the Old Age Security Act are as follows:
|
Information required with application
for supplement
15. (1) Every person by whom
an application for a supplement in respect of a payment period is made shall,
in the application, state whether the person has or had a spouse or
common-law partner at any time during the payment period or in the month
before the first month of the payment period, and, if so, the name and
address of the spouse or common-law partner and whether, to the person’s
knowledge, the spouse or common-law partner is a pensioner.
|
Renseignements à joindre à la demande
de supplément
15. (1) Le demandeur doit,
dans sa demande de supplément pour une période de paiement, déclarer s’il a
un époux ou conjoint de fait ou s’il en avait un au cours de la période de
paiement ou du mois précédant le premier mois de la période de paiement et, s’il
y a lieu, doit également indiquer les nom et adresse de son époux ou conjoint
de fait et déclarer si, à sa connaissance, celui-ci est un pensionné.
|
|
Notification of change
15. (9) Every applicant shall
inform the Minister without delay if they separate from, or cease to have, a
spouse or common-law partner, or if they had a spouse or common-law partner
at the beginning of a month, not having had a spouse or common-law partner at
the beginning of the previous month.
|
Avis de changement
15. (9) Le demandeur qui
devient l’époux ou conjoint de fait d’une autre personne, cesse d’avoir un
époux ou conjoint de fait ou s’en sépare est tenu d’en informer le ministre
sans délai.
|
|
Request for reconsideration by
Minister
27.1 (1) A person who is
dissatisfied with a decision or determination made under this Act that no
benefit may be paid to the person, or respecting the amount of a benefit that
may be paid to the person, may, within ninety days after the day on which the
person is notified in writing of the decision or determination, or within any
longer period that the Minister may, either before or after the expiration of
those ninety days, allow, make a request to the Minister in the prescribed
form and manner for a reconsideration of that decision or determination.
. . .
|
Demande de révision par le ministre
27.1 (1) La personne qui se
croit lésée par une décision de refus ou de liquidation de la prestation
prise en application de la présente loi peut, dans les quatre-vingt-dix jours
suivant la notification par écrit de la décision, ou dans le délai plus long
que le ministre peut accorder avant ou après l’expiration du délai de
quatre-vingt-dix jours, demander au ministre, selon les modalités
réglementaires, de réviser sa décision.
[…]
|
|
Decision of Minister
27.1 (2) The Minister shall,
without delay after receiving a request referred to in subsection (1),
reconsider the decision or determination, as the case may be, and may confirm
or vary it and may approve payment of a benefit, determine the amount of a
benefit or determine that no benefit is payable, and shall without delay
notify, in writing, the person who made the request of the Minister’s
decision and of the reasons for the decision.
|
Décision du ministre
27.1 (2) Le ministre étudie
les demandes dès leur réception; il peut confirmer ou modifier sa décision
soit en agréant le versement de la prestation ou en la liquidant, soit en
décidant qu’il n’y a pas lieu de verser la prestation. Sans délai, il notifie
sa décision et ses motifs.
|
|
Return of benefit where recipient not
entitled
37. (1) A person who has
received or obtained by cheque or otherwise a benefit payment to which the
person is not entitled, or a benefit payment in excess of the amount of the
benefit payment to which the person is entitled, shall forthwith return the
cheque or the amount of the benefit payment, or the excess amount, as the
case may be.
|
Obligation de restitution
37. (1) Le trop-perçu — qu’il
s’agisse d’un excédent ou d’une prestation à laquelle on n’a pas droit — doit
être immédiatement restitué, soit par remboursement, soit par retour du
chèque.
|
|
Remission of amount owing
37. (4) Notwithstanding
subsections (1), (2) and (3), where a person has received or obtained a
benefit payment to which that person is not entitled or a benefit payment in
excess of the amount of the benefit payment to which that person is entitled
and the Minister is satisfied that
(a) the amount or excess of the
benefit payment cannot be collected within the reasonably foreseeable future,
(b) the administrative costs of
collecting the amount or excess of the benefit payment are likely to equal or
exceed the amount to be collected,
(c) repayment of the amount or
excess of the benefit payment would cause undue hardship to the debtor, or
(d) the amount or excess of the
benefit payment is the result of erroneous advice or administrative error in
the administration of this Act,
the Minister may, unless that person has
been convicted of an offence under any provision of this Act or of the Criminal
Code in connection with the obtaining of the benefit payment, remit all
or any portion of the amount or excess of the benefit payment.
|
Remise
37. (4) Malgré les
paragraphes (1), (2) et (3), le ministre peut, sauf dans les cas où le
débiteur a été condamné, aux termes d’une disposition de la présente loi ou
du Code criminel, pour avoir obtenu la prestation illégalement, faire
remise de tout ou partie des montants versés indûment ou en excédent, s’il
est convaincu :
a) soit
que la créance ne pourra être recouvrée dans un avenir suffisamment
rapproché;
b) soit
que les frais de recouvrement risquent d’être au moins aussi élevés que le
montant de la créance;
c) soit
que le remboursement causera un préjudice injustifié au débiteur;
d) soit
que la créance résulte d’un avis erroné ou d’une erreur administrative
survenus dans le cadre de l’application de la présente loi.
|
[14]
Subsection 39(1)
of the Canada Revenue Agency Act, S.C. 1999, c. 17, is also
relevant:
|
Commissioner to keep departments
informed
39. (1) Subject to any
confidentiality provisions in the program legislation or in the Privacy
Act, the Commissioner must provide a federal department or agency on
whose behalf the Agency administers a program or carries out an activity with
the information necessary to evaluate the program or activity and formulate
policies related to it.
|
Obligation de renseigner les
organismes fédéraux
39. (1) Sous réserve des
dispositions de la législation fiscale et de la Loi sur la protection des
renseignements personnels relatives à la confidentialité, le commissaire
est tenu de fournir, aux ministères et organismes fédéraux pour le compte
desquels l’Agence applique un programme ou exerce une activité, l’information
nécessaire à l’évaluation du programme ou de l’activité et à l’élaboration
des orientations correspondantes.
|
* *
* * * * * *
[15]
The parties agree that
the standard of review applicable in this case is reasonableness (Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190).
[16]
The applicant submits
that he has diligently fulfilled his obligations since 2003, in accordance with
subsection 15(9) of the Act. Relying on paragraph 37(4)(d) of
the Act, he argues that the Minister made an administrative error, since he did
not verify the applicant’s marital status, which the applicant had already
reported to the CRA. The applicant also relies on subsection 39(1) of the Canada
Revenue Agency Act in an attempt to demonstrate that the CRA was required
to provide the Minister with the information he required. In his opinion,
therefore, it was the Minister who erred and not he, so that, as a matter of
law, the Minister should have exercised his discretion and ordered to remit the
overpayment. (At the hearing before me, counsel for the applicant softened her
position on the application of subsection 39(1), above, of the Canada
Revenue Agency Act.)
[17]
For his part, the
respondent argues, first, that subsection 39(1) of the Canada Revenue
Agency Act is simply not relevant to this proceeding. He points out that,
in this case, the CRA was not administering a program or carrying out an
activity related to the Old Age Security program on behalf of the respondent;
the CRA simply provided the respondent with the information he requested. I
agree. The language of subsection 39(1) clearly states that the subsection
applies only then when the information is “necessary to evaluate the program or
activity and formulate policies related to it”, which was not the case here.
[18]
Second, the respondent
insists that, under subsection 15(9) of the Act, it was up to the
applicant to report his marital status not only to the CRA but also to the
Minister. He argues that the applicant is trying to shift the onus of this
provision by requiring the Minister to obtain the information from the CRA. He
notes that this requirement of the applicant existed even without the annual
notice from the Minister, whom the applicant had to provide with the
information, the notice simply being a reminder and not a precondition to the
application of subsection 15(9). Here too, I agree with the respondent.
[19]
In my opinion, it was
reasonable for the Minister to determine that no administrative error had been
made even though no one had enquired about the marital status the applicant
reported to the CRA. The law is clear: under subsection 15(9) of the Act,
the applicant himself was required to inform the Minister of his marital status
and particularly, “without delay” of any change in status, which he failed to
do. In the circumstances, it was reasonable, then, for the Minister to deny the
applicant the remission of the overpayment.
[20]
For the above-mentioned
reasons, the application for judicial review is dismissed. There is no order as
to costs, as the respondent did not request any.
JUDGMENT
The application for judicial review of the decision by the
Minister of Human Resources and Skills Development Canada that no
administrative error was made when an overpayment of Old Age Security pension
benefits and the GIS was claimed from the applicant is dismissed. There is no
order as to costs.
“Yvon Pinard”
Certified true
translation
Johanna Kratz
Email this Content