Docket: T-2061-10
Citation: 2011 FC 799
Toronto, Ontario, June 29,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
|
|
ALLAN GEORGE GROSVENOR
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
George
Grosvenor seeks judicial review of a decision by Service Canada which found that
he had not established that he had received erroneous advice regarding his
entitlement to Old Age Security benefits.
[2]
For the
reasons that follow, Mr. Grosvenor has not persuaded me that the decision was
unreasonable or that he was treated unfairly in the processing of his
complaint. As a consequence, his application for judicial review will be dismissed.
Background
[3]
By letter
dated August 25, 2004, Mr. Grosvenor was advised by Human Resources and
Development Canada (HRDC) that he may be eligible for benefits under the Canada
Pension Plan (CPP) and/or the Old Age Security (OAS) Plan. At the same time,
Mr. Grosvenor was provided with information sheets for both CPP and OAS
benefits which explained the eligibility criteria for each type of benefit.
[4]
The letter
cautioned Mr. Grosvenor that if he were to defer applying for benefits, recent
changes to the legislation could affect the period for which benefits could be
paid retroactively.
[5]
Mr.
Grosvenor applied for CPP benefits on February 28, 2005, and began receiving
benefits after he turned 65 in August of 2005. Although Mr. Grosvenor claimed
in a May 9, 2008 letter that he applied for his OAS benefits at the same time
as he applied for his CPP benefits, I understand him to now acknowledge that he
did not actually apply for OAS benefits until 2007. His application for OAS
benefits was received by the Department on April 27, 2007.
[6]
In
accordance with the rules regarding the payment of retroactive benefits, Mr.
Grosvenor was also paid OAS benefits for the 11 months preceding the date of
receipt of his application. Mr. Grosvenor has not received any OAS benefits for
the period between September of 2005 and May of 2006.
[7]
Mr.
Grosvenor says that upon receiving the August 25, 2004 letter from HRDC, he
went to the Service Canada Centre in Newmarket, Ontario for advice regarding his
entitlement to both OAS and CPP benefits. He contends that he was told by an
agent that he was not eligible for OAS because he was still working. Relying
upon this erroneous advice, Mr. Grosvenor did not apply for OAS benefits at
that time.
[8]
Mr.
Grosvenor subsequently sought recovery of OAS benefits for the period after his
65th birthday to May of 2006 under section 32 of the Old Age
Security Act, S.C., 1985, c. O-9, which provides that:
|
32. 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 benefit, or a portion of a benefit, 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.
|
32. S’il
est convaincu qu’une personne s’est vu refuser tout ou partie d’une
prestation à laquelle elle avait droit par suite d’un avis erroné ou d’une
erreur administrative survenus dans le cadre de la présente loi, le ministre
prend les mesures qu’il juge de nature à replacer l’intéressé dans la
situation où il serait s’il n’y avait pas eu faute de l’administration.
|
[9]
The matter was
investigated by the Department, and Mr. Grosvenor
was invited to provide whatever information he felt appropriate in support of
his claim that he received erroneous advice. Mr. Grosvenor took advantage of this
opportunity and provided what he says was “five pounds” of documents in
response to this letter. Many of these documents relate to a dispute between
Mr. Grosvenor and the Canada Revenue Agency, and do not appear to have any
relevance to his claim to have received erroneous advice from Service Canada.
[10]
In a decision dated
November 1, 2010, a Minister’s Delegate found that Mr. Grosvenor had failed to provide any evidence to
support his claim that he had received erroneous advice from the Newmarket
Service Canada Centre in 2004, which led to his late application for OAS
benefits. As a result, his claim for unpaid retroactive benefits was rejected.
It is this decision that is under review by this Court.
Standard of
Review
[11]
A finding as to
whether erroneous advice has been provided is a purely factual determination.
As a consequence, I agree with the respondent that the Minister’s Delegate’s
decision is to be reviewed on the standard of reasonableness.
[12]
In reviewing
a decision against the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: see Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190, at para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59.
[13]
Where an issue of
procedural fairness arises, the task for the Court is to determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances: see Khosa, at para. 43.
Analysis
[14]
Mr.
Grosvenor provided additional information during his oral submissions regarding the circumstances surrounding
the advice allegedly provided to him in the course of his visit to the Service
Canada Centre in Newmarket in 2004.
[15]
Mr.
Grosvenor now says that when he visited the Service Canada offices, the person
working on the front desk told him that he or she did not handle OAS matters.
Mr. Grosvenor was then taken to the back office, where the person working there
called a number in Ottawa. Mr. Grosvenor says that he
then spoke to a person by the name of “Elizabeth” on the telephone, and that it was
Elizabeth who provided him with the erroneous advice.
[16]
This
information was not before the Minister’s delegate when he made his decision on
November 1, 2010. Moreover,
most of this information does not appear in the affidavit filed by Mr. Grosvenor in support of
his application for judicial review. As such, it is not evidence properly
before the Court.
[17]
As I
explained to Mr. Grosvenor during the hearing, my role in an application such
as this is not to simply substitute my own decision for that of the Minister’s
delegate. Rather, my task is to examine the record that was before the
Minister’s delegate and determine whether, based upon the information before
him, the decision was reasonable.
[18]
Having
carefully reviewed the record, I am satisfied that the decision of the
Minister’s delegate was indeed reasonable.
[19]
In coming
to this conclusion I note the following:
1. The
information sheet for CPP benefits provided to Mr. Grosvenor in August of 2004
clearly explained that in order to be eligible for CPP benefits, the applicant
had to either have stopped working, or have monthly earnings below a specified
threshold. The information sheet for OAS benefits lists the eligibility
requirements for benefits and did not mention any requirement that an applicant
had to have stopped working in order to be eligible for OAS benefits.
2.
HRDC’s
investigation of Mr. Grosvenor’s complaint of erroneous advice disclosed that the Newmarket Service Canada Centre did
not provide information regarding OAS benefits in 2004. There is nothing in the
record that was before the Minister’s
delegate to suggest that the
Minister’s
delegate was ever told that Mr. Grosvenor had actually received the advice by
telephone from an HRDC representative in Ottawa by the name of Elizabeth.
3. While
an entry would not necessarily have been created, the HRDC database did not
contain any record of Mr. Grosvenor having visited the Newmarket Service Canada Centre in 2004.
[20]
The onus
was on Mr. Grosvenor to satisfy the Minister’s delegate that he had received
erroneous information regarding his entitlement to OAS benefits, and that he
had relied upon this information to his detriment. The Minister’s delegate
concluded that Mr. Grosvenor had not established on a balance of probabilities
that erroneous advice had in fact been provided. In light of the evidence
before him, this conclusion was one that was reasonably open to the Minister’s
delegate.
[21]
Although
not squarely raised as an issue of fairness, Mr. Grosvenor suggested for the
first time in his oral submissions that the August 4, 2010 letter inviting him
to provide evidence in support of his claim to have been given erroneous advice
was misleading, as the letter did not expressly indicate that what was being
sought was information regarding the erroneous advice. Having reviewed the
letter, I am satisfied that it was clear and that Mr. Grosvenor was given a
fair opportunity to produce whatever supporting evidence he may have wanted to
provide in support of his claim to have received erroneous information.
[22]
Before
leaving this matter, I would like to note that I recognize that Mr. Grosvenor
has become very frustrated in dealing with this matter over the last seven
years. I understand that frustration, particularly given the fact that he did
not receive a response to at least one of his letters to HRDC for some 27
months. However, sympathy alone does not provide a sufficient basis for
allowing the application.
Costs
[23]
In a
matter such as this, the losing party will usually be ordered to contribute to
the legal costs of the winning party. Counsel for the respondent has advised
the Court that his client is not seeking an award of costs in this matter, and
no order of costs will be made.
Style
of Cause
[24]
Counsel
for the respondent submits that the Attorney General of Canada is the proper
respondent in this case. Mr. Grosvenor has no objection to the style of cause
being amended to reflect this and the style of cause will be amended
accordingly.
Conclusion
[25]
For these reasons,
the application for judicial review is dismissed, without costs.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1.
This application for
judicial review is dismissed, without costs; and
2.
The style of cause is
amended to substitute the Attorney General of Canada for “Minister Human
Resources and Skills Development”.
“Anne Mactavish”
Email this Content