Date: 20120523
Docket: T-1019-11
Citation: 2012 FC 622
Ottawa, Ontario, May 23,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
|
|
ESTATE VIOLET STEVENS AND
JUNE TAYLOR, EXECUTOR
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
application for judicial review is in respect of a decision by the Review
Tribunal dismissing an appeal of the refusal to award additional retroactive Old
Age Security Act, RSC 1985, c O-9 (the Act) pension benefits.
[2]
For
the reasons set out below, the application is dismissed.
I. Background
[3]
Violet
Stevens died at the age of 86 on March 18, 2007. During her lifetime, she did
not apply for an Old Age Security (OAS) pension. Her daughter, June Taylor,
acting as the Executrix of the Estate, did, however, make an application for
these benefits following Ms. Stevens’ death on April 26, 2007.
[4]
The
application was approved and payment made to the Estate for a one year maximum
allowable retroactive OAS pension from April 2006 to the date of Ms. Stevens’
death in March 2007.
[5]
On
August 6, 2007, Ms. Taylor requested additional retroactive benefits for the
Estate from the date her mother turned 65 in August 1985.
[6]
In
a letter dated September 28, 2007, Human Resources Development Canada responded
to this further request stating: “As your mother reached the age of 65 before
her death, we paid the legislated 11 months retroactive benefits for the period
April 2006 March 2007. Unfortunately, there is no more entitlement.”
[7]
On
October 31, 2007, Ms. Taylor requested that this determination be reconsidered
pleading:
My Mother was never “diagnosed” with
physical or mental incapacity. Mental incapacity of lack of knowledge of how O.A.S.
would benefit her is probably the only explanation of why she never filed. […]
I feel my Mother did not know that Old
Age Security existed and this would have been why she did not file. I feel my
Mother was ashamed that she did not know the first thing about filing income tax
or the benefits that the government provided for people, by means of Old Age
Security. […]
[8]
In
a letter dated January 2, 2008, Human Resources Development Canada upheld its
previous decision and confirmed that retroactive entitlement to benefits was
only from the period of April 2006 to March 2007. While there is a provision
for incapacity, Ms. Stevens was never diagnosed with mental incapacity. It
also noted that “[s]ince documentation is required when applying the diagnosed mental
incapacity, it is unlikely that this provision could be considered.”
[9]
Ms.
Taylor, on behalf of the Estate, appealed this decision to the Office of the
Commissioner of Review Tribunals (OCRT). Initially, she was refused a hearing
before the Review Tribunal. On judicial review with this Court, Justice Leonard
Mandamin found “the Commissioner breached procedural fairness in closing the
appeal without affording the Applicant’s right to be heard by a Review
Tribunal” (Stevens Estate v Canada (Attorney General), 2011 FC 103,
[2011] FCJ no 1295). As a consequence, a hearing was ultimately held before
the Review Tribunal on April 6, 2011.
II. Decision
Under Review
[10]
The
Review Tribunal dismissed her appeal, noting that it was constrained in
granting relief for retroactive benefits on the principle in fairness. Its
conclusion was based on the holding of this Court in Canada (Minister of
Human Resources and Social Development Canada) v Esler,
2004 FC 1567, 2004 FCJ no 1920 at paras 33-34 that the Review Tribunal
does not have “equitable jurisdiction which would allow it to ignore the
clear legislative provision” and grant retroactive pension benefits in excess
of the statutory limit.
[11]
The
Review Tribunal also addressed the argument that there was an administrative
error within the meaning of section 32 of the Act allowing a grant of
relief by the Minister. Relying on previous jurisprudence, the Review Tribunal
nonetheless found it did “not have jurisdiction to hear any appeal with respect
to a decision made by the Minister in exercising his powers under
section 32.”
III. Issues
[12]
This
application raises the following issues:
(a) Did
the Review Tribunal err in finding that the Applicant was not entitled to additional
retroactive OAS benefits?
(b) Did
the Review Tribunal err by concluding that it did not have jurisdiction to hear
an appeal on the basis of an administrative error of a Ministerial decision
under section 32 of the Act?
IV. Standard
of Review
[13]
Based
on previous jurisprudence, these issues are to be reviewed based on correctness
(see Esler, above at paras 19-20; Canada (Minister of
Human Resources Development) v Myrheim, 2004 FC 884, [2004]
FCJ no 1079 at para 20). This reflects their relationship to the Review
Tribunal’s jurisdiction (see Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at para 42).
V. Analysis
A. Entitlement
to Retroactive OAS Benefits
[14]
The
Applicant insists that the Estate is entitled to additional retroactive OAS
benefits seemingly as a matter of fairness.
[15]
While
it is possible under section 29 for the Estate to apply within one year of a
person’s death for these benefits, retroactive entitlement is circumscribed by
other provisions of the Act. For persons already over the age of
sixty-five on the day the application is received (deemed to be the date of
death in the case of Estate), the request for benefits will be effective from
“a day one year before the day on which the application was received” based on
subsection 8(2). This limitation is also reflected in subsection 5(2) of the Old
Age Security Regulations, CRC, c 1246.
[16]
As
noted in the decision currently under review, this Court was confronted with
the issue of whether a Review Tribunal could grant benefits retroactive to
the sixty-fifth birthday and beyond the one-year statutory limitation in Esler,
above on the principle of fairness. Justice John O’Keefe stressed:
[33] The Review Tribunal is a pure
creature of statute and as such, has no inherent equitable jurisdiction which
would allow it to ignore the clear legislative provision contained in
subsection 8(2) of the Act and use the principle of fairness to grant
retroactive benefits in excess of the statutory limit.
[34] I am of the view that the
Review Tribunal acted beyond its statutory jurisdiction in granting retroactive
pension benefits in excess of the statutory limit contained in subsection 8(2)
of the Act.
[17]
Based
on the statutory constraints and this holding, the Review Tribunal was correct
in finding that it could not grant additional retroactive OAS benefits to the
Applicant.
B. Administrative
Error Under Section 32
[18]
As
for the Applicant’s suggestion that there is an administrative error based on
section 32 of the Act, that provision is of no assistance in this case.
[19]
While
there is a reference to an error by Canada Revenue Agency in the Notice of
Application, the Applicant has not elaborated on the nature of this alleged
error in the context of OAS pension benefits. Moreover, there was no remedial
action taken by the Minister in light of an administrative error under section
32. In this instance, the Applicant appealed a reconsideration decision made
under section 27.1 to the Review Tribunal.
[20]
As
was correctly noted in the decision under review, the Review Tribunal does not
even have jurisdiction to address decisions made on the basis of section 32 and
administrative errors (see Canada (Minister of Human Resources
Development) v Tucker, 2003 FCA 278, [2003] FCJ no 998 at paras
11-12).
[21]
Justice
Eleanor Dawson confirmed this principle in Canada (Minister of Human
Resources Development) v Mitchell, 2004 FC 437, [2004] FCJ no 578 at paras
6-12, stating “the decision of the Review Tribunal should be set aside on the
basis that it had no jurisdiction to grant relief based upon Section 32 of
the Act.” She continued “[t]he proper remedy to a person denied relief under
Section 32 of the Act is to apply directly to this Court for judicial review.” Similarly,
Justice Carolyn Layden-Stevenson found the determination in Tucker,
above dispositive in a case involving a decision under section 32 (Myrheim,
above at paras 21-22).
[22]
As
a result, the Review Tribunal did not commit a jurisdictional error in this
case by declining to address any alleged administrative error under section 32
of the Act. Indeed, quite the opposite is true. The decision of the
Review Tribunal to do so in the past has warranted this Court’s intervention.
VI. Conclusion
[23]
The
Review Tribunal did not err in finding that the Applicant was unable to receive
OAS benefits retroactive beyond one year after the date of death. The
administrative error provision under section 32 was also inapplicable in this
case. Accordingly, I am dismissing the application for judicial review.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed.
“ D.
G. Near ”
Email this Content