Date: 20070130
Docket: T-305-06
Citation: 2007 FC 89
BETWEEN:
LINDA
BARTLETT
Applicant
and
THE ATTORNEY GENERAL FOR
CANADA
Respondent
REASONS FOR
JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of a decision made on behalf of the Minister
of Human Resources Development Canada (the “Minister”), dated January 19, 2006,
determining that no erroneous or administrative error had occurred under
subsection 66(4) of the Canada Pension Plan and Old Age Security Act,
R.S.C. 1985. c. C-8 (the Act).
Facts
[2]
On December 29, 1977,
Linda Bartlett, the applicant, applied for Canada Pension Plan disability
benefits (“CPP benefits”).
[3]
When Mrs. Bartlett
submitted her application, she was informed by Health and Welfare Canada (now Human Resources and Development Canada) (the
“Department”) that she did not have enough contributions to qualify. Mrs.
Bartlett insisted that she did.
[4]
In the spring of 1978,
the Department contacted Mrs. Bartlett to see if she had any evidence of more
contributions. She told them to contact the Department of National Revenue
(DNR) to verify her contribution for 1973 as DNR had told her it had a record
of her earnings for 1973. On April 11, 1978, a Request for Confirmation of
Contributory Earnings and Contributions was filed on behalf of Mrs. Bartlett.
This request was for a record of earnings for 1972 and there is a hand written
note on the request stating that “All records called for 1972.”
[5]
In a letter dated May
29, 1978, the Department denied Mrs. Bartlett’s application. The letter stated
that the applicant was not eligible because she did not meet the minimum
qualifying period of valid contributions, which in her case required valid
contributions to have been made in at least five of the last ten calendar
years. According to the letter, the applicant had only made valid contributions
for the years 1970, 1975, 1976 and 1977. Since she had not contributed five of
the ten years from 1969 to 1978 her application was dismissed.
[6]
In October 2001, the
applicant made a second application for CPP benefits that was denied in a
letter dated November 7, 2001 on the basis that the applicant was ineligible
because she did not meet the contributory requirements of the Canada Pension
Plan (CPP).
[7]
The applicant requested
reconsideration of the second decision and, on January 8, 2002, she was
informed by the respondent that the decision denying her CPP benefits was
confirmed.
[8]
The applicant decided
to appeal the decision to the Review Tribunal. The Review Tribunal, in a
decision dated December 27, 2002, held that there was insufficient evidence of
valid contributions and, therefore, the issue of whether the applicant’s
condition qualified as being severe and prolonged for the purposes of the CPP
did not need to be considered.
[9]
In August 2003, the Department
conducted an investigation that determined that the applicant had in fact made
valid contributions in 1973.
[10]
The applicant appealed
the decision of the Review Tribunal to a Pension Appeal Board (PAB). The PAB
did not need to consider whether the applicant had met the minimum qualifying
period for valid contributions since the respondent conceded that she had. In a
decision dated June 22, 2004, the PAB held that the applicant was disabled
with the meaning of the Act as of September 1980 and should, therefore, be
granted a disability pension.
[11]
In August 2004, the
applicant was granted a disability pension with a date of onset of July 2000,
a maximum of 15 months retroactivity from the date of the applicant’s second
disability application of October 2001.
[12]
In September 2004, the
applicant wrote to the Department requesting a reconsideration of the amount of
her monthly payment and the amount of retroactive payment. The applicant argued
that she should have been granted CPP benefits in 1977 and she also states that
she believed her CPP benefits should be calculated in 1977 dollars.
[13]
In a letter dated
November 2, 2004, the applicant was informed that the decision regarding the
amount of her disability benefits was confirmed. The letter also advised the applicant
that based on her earnings and contributions, her disability pension amounts
could not be increased as she was receiving the maximum amount permitted. It
also noted that the onus or responsibility was on clients to provide missing
information and documents and that “it was not until August 2003, that you
advised our office of missing T4’s for the year 1973.” This letter included a
breakdown of how the applicant’s CPP benefits were being calculated.
[14]
In a letter received by
the Department on October 20, 2005 the applicant requested a review of her file
under subsection 66(4) of the Act based on her belief that the amount of her
retroactive payment and monthly payment was too low and that this was a result
of a departmental error. She alleges that in 1977 the Department did not verify
her contributions or part of her file was lost.
[15]
The Minister held that
no erroneous advice or administrative error had occurred. The decision provided
the following reasons:
- On December 19, 1977, you applied for CPP Disability Benefits.
At the initial review of your application it was noted that you did not
satisfy the legislative requirement by having sufficient earnings and
contributions, therefore in April 1978, CPP requested an
investigation by the Department of National Revenue (DNR). CPP asked DNR
to investigate your 1972 contributions which were $246.00.
- DNR responded that your 1972 contributions were below the
allowable basic exemption at the time ($600.00) and the contributions were
refunded back to you. In addition, CPP also asked if there were any
additional years of contributions but DNR did not find any.
- Our New Westminster District office also indicated that you had
been counselled and informed that you had insufficient earnings and
contributions prior to making your application in December 1977. You
claimed to have additional earnings, but when you were asked again, in
April 1978, you were unable to produce additional evidence to support your
claim. The onus for providing additional evidence of these earnings in
1973 rested solely on you.
- Our review shows that CPP did in fact investigate your claim of
having additional earnings and contributions into the Canada Pension Plan.
When the Department of National Revenue could not find any additional
earnings for 1973, your December 1977 application was denied.
Pertinent Legislation
[16]
Subsection 66(4) of the
Act reads:
|
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,
(b) a division of
unadjusted pensionable earnings under section 55 or 55.1, or
(c) an assignment
of a retirement pension under section 65.1,
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.
|
66. (4) Dans le cas où le ministre est convaincu qu’un avis
erroné ou une erreur administrative survenu 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,
b) le partage des gains non ajustés ouvrant
droit à pension en application de l’article 55 ou 55.1,
c) la cession d’une pension de retraite
conformément à l’article 65.1,
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.
|
Analysis
[17]
In this case, the Court must
decide whether the Minister’s decision that there was no administrative error
was patently unreasonable.
[18]
The applicant submits that the
Department made an administrative error by not verifying her 1973 contributions
and that this resulted in her 1977 application for CPP benefits being turned
down.
[19]
The respondent submits that the
Minister appropriately reviewed all the evidence and did not discover any
evidence that the requisite CPP contributions were available to or known by or
could have been known by the Minister in 1977 or 1978. The respondent further
submits that the burden to provide information regarding CCP contributions
rests on the applicant and that it was the applicant’s failure to provide
sufficient information which caused the Department to deny her disability
benefits based on the determination that she had not made contributions for the
minimum qualifying period.
[20]
In making the decision that no
administrative error had occurred, the Minister had the following evidence
before her:
- The
applicant had lost her T4 for her employment at Swartz Studios in 1973.
She claims that she was told in 1977/1978 by Revenue Canada and the
Unemployment Insurance Office that they had records of her contributions
from 1973. The applicant claimed that someone at Revenue Canada told her
to have CPP contact them and the applicant then brought a letter to the
New Westminster Pension office which requested that CPP contact Revenue
Canada in order to receive verification of her 1973 earnings.
- The
Department contacted the applicant in 1978 to see if she had found any
information regarding her CPP contributions.
- In 1978, a
record of earnings and contributions was requested on behalf of the
applicant for the year 1972.
- The record
of earnings summary dated May 23, 2003 indicated that the applicant’s
earnings for the year 1973 were $0 and her CPP contributions were $1.58,
while the record of earnings summary dated August 25, 2003 stated that the
earnings for 1973 for were $756 and the CPP contributions were $5.10. A
note to file written by Josee Plouffe, Program Analyst, dated August 27,
2003, states that “Client was denied on earnings since she did not have 5
years out of 10. Client claimed that she had missing T4s in 1973. An
investigation was done by NIBS and as a result, the client had a T4 in
1973 in the system that could be matched to the client. Therefore the
client has one more valid year to qualify her on earnings. The file still
needs to be adjudicated medically.”
[21]
Based on this evidence, the
Minister concluded that there had been no administrative error which had led to
a denial of benefits because the Department and the DNR, through no fault of
their own, did not have a proper record of the applicant’s income for 1973 in
1977/1978. In my view, the evidence does not support the Minister’s conclusion.
[22]
Rather, the evidence supports the
conclusion that the Department failed to verify the applicant’s 1973
contributions in 1978. Two pieces of documentary evidence support this
conclusion: the Request for Confirmation of Earnings and Contributions, dated
April 1978, and the Note to File made in August 2003.
[23]
The applicant claims that in 1978,
shortly after she submitted her first application for CPP benefits, she asked
the Department to verify her 1973 contributions with Revenue Canada since
she was aware the contributions which CPP did not have proof of were those she
made through Swartz Studios in 1973. In response to her request, the Department
filed a Request for Confirmation of Earnings and Contributions in April of 1978
with the DNR. This document clearly indicates that the request was for the year
1972 only. Making a request for the wrong year is an administrative error. In
her decision, the Minister glosses over this error by stating that the
Department asked DNR to check for contributions for 1972 but also asked them to
check for contributions for other years. The respondent did not provide any
evidence to support the Minister’s claim that the Department had asked the DNR
to investigate contributions for years other than 1972.
[24]
The Note to File made in August
2003 indicates that an investigation was done by NIBS and that it revealed that
the applicant had a T4 for 1973 “in the system”. This prima facie
suggests that the applicant’s T4 for 1973 had been in the system all along but
that it was not until August 2003 when a proper search for it was done that it
was located. Both the Minister in the decision and the respondent in
submissions failed to explain how the 1973 T4 turned up in 2003. As a result,
the decision fails to squarely address the possibility that the Department had
never actually attempted to verify the applicant’s contributions for 1973 until
2003 and that this was an administrative error.
[25]
The evidence before the Minister
suggested that an administrative error had occurred and that as a result the
applicant had been denied a benefit (or portion thereof) to which she would
have been entitled under the Act. In my view, by failing to address this matter
directly the decision is patently unreasonable.
[26]
Consequently, the application for
judicial review is granted, the impugned decision is set aside and the matter
is sent back to the Minister of Human Resources Development Canada for
reconsideration in accordance with these Reasons.
“Yvon
Pinard”
Ottawa,
Ontario
January
30, 2007
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