Date: 20070129
Docket: T-200-06
Citation: 2007 FC 99
Montréal, Quebec, the 19th day of January 2007
Present: The Honourable Mr. Justice Martineau
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
LISE
VINET-PROULX
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
Attorney General of Canada asks this Court to set aside the decision dated
November 9, 2005, of the Office of the Commissioner of Review Tribunals
(hereafter the “Review Tribunal”) declaring that Ms. Vinet-Proulx is entitled
to Old Age Security benefits from July 2002.
[2]
According
to the evidence on the record of the Court, Ms. Vinet-Proulx reached the age of
65 years on June 10, 2002. She made an initial application for an old age
pension in February or March 2001, by letter. At that time, she was advised by
the Department of Human Resources Development (hereafter “the Department”) that
her application was premature, since she had not yet reached 65 years of age.
In December 2001, she received the documentation required to apply for her Old
Age Security benefits. She then gave this documentation to her accountant, who
promised to look into things, but did nothing. Ms. Vinet-Proulx changed
accountants. In March or April 2003, while he was preparing her tax returns for
2002, Ms. Vinet-Proulx’s new accountant noted that she was not receiving any
Old Age Security benefits. He called the Department, with Ms. Vinet-Proulx
present, to check on why she was not receiving any benefits. An employee
advised him that the Department had not received an application. Therefore, he
completed an application for benefits, which Ms. Vinet-Proulx hurriedly mailed
to the Department in March or April 2003. However, neither the accountant nor
Ms. Vinet-Proulx kept a copy of the application or proof of postage. In April
2004, Ms. Vinet-Proulx consulted her accountant regarding her income tax return
for 2003. He noted that his client was still not receiving Old Age Security
benefits. Ms. Vinet-Proulx filled out another application form for Old Age
Security benefits, and this time, on the advice of her accountant, she mailed
it to the Department by registered mail on April 13, 2004. The Department
received the new application the next day. On June 8, 2004,
Ms. Vinet-Proulx was advised by the Department that her application for
Old Age Security benefits was approved and that she would receive her benefits
retroactively from May 2003 (the Minister’s initial decision).
[3]
In a
letter dated July 28, 2004, Ms. Vinet-Proulx requested a reconsideration of the
Minister’s initial decision, stating that she had sent the Department an
application for benefits in March or April 2003. In support of her request for
reconsideration, she submitted a letter from her accountant confirming that an
initial application had been filled out and sent to the Department in March
2003. Searches of the Department archives were apparently made in June and
August 2004. These searches showed that there was only one application for
benefits in Ms. Vinet-Proulx’s file. This was the application signed on April
13, 2004, and received on April 14, 2004. No other computer entry concerning an
application received before April 2004 could be tracked down in the
Department’s systems. In a letter dated December 15, 2004, Ms. Vinet-Proulx was
advised that the Minister’s initial decision had been upheld (the Minister’s
revised decision). On the same day, Ms. Vinet-Proulx appealed the
Minister’s revised decision to the Review Tribunal.
[4]
On
November 9, 2005, the Review Tribunal heard the appeal and decided to allow it.
First of all, the Review Tribunal was of the opinion that the testimonies of
Ms. Vinet-Proulx and her accountant were credible and concluded that they had
completed and sent in the application for Old Age Security benefits by regular
mail in March or April 2003. Furthermore, the Review Tribunal determined that
Ms. Vinet-Proulx had done what she had to do to make an application for
benefits. Thus, a posted letter had to be presumed to have been received by its
addressee. Accordingly, the Review Tribunal concluded that Ms. Vinet-Proulx met
all the entitlement conditions for Old Age Security benefits and had thus been
entitled to receive them as of July 2002, not May 2003, as the Minister had
previously decided.
[5]
The Court
must now determine if the Review Tribunal exceeded its jurisdiction or
otherwise erred in law in declaring that Ms. Vinet-Proulx had been entitled to
Old Age Security benefits since July 2002, that is, one month after her 65th
birthday. On the one hand, it is uncontested that the standard of review applicable
to a jurisdictional error or an error of law by a review tribunal is
correctness (Canada (Minister of Human Resources Development) v. Dublin
(Estate of), 2006 FC 152, [2006] F.C.J. No. 258 (QL), at
paragraph 6, and case law cited in this decision). On the other hand, if the
error invoked by the applicant concerns a question of fact that is within the
jurisdiction of the Review Tribunal, the applicable standard is patent
unreasonableness.
[6]
In the
case at bar, the Attorney General of Canada submits that the Review Tribunal
exceeded its jurisdiction in conducting an analysis of the evidence that only
the Minister may do in a case of erroneous advice or administrative error and
in granting Old Age Security benefits to Ms. Vinet-Proulx from July 2002. The
Attorney General of Canada also submits that the Review Tribunal erred in law
in determining that a posted letter must be presumed to have been received by
the addressee and in concluding that the Department had received Ms.
Vinet-Proulx’s application for benefits in March or April 2003, the year
following her 65th birthday, thus entitling her to a pension from the month of
July 2002.
[7]
Ms.
Vinet-Proulx represented herself. At the Court hearing, she was accompanied by
her accountant, who counselled her. In brief, she submits that the contested
decision was rendered on the basis of the evidence and was well founded for the
reasons already given by the Review Tribunal, which decided to believe her
testimony and that of her accountant.
[8]
For the
reasons that follow, this application for judicial review must be allowed. My
conclusion is based solely on the Review Tribunal’s lack of jurisdiction to
render the order challenged in this case. Having said this, I hasten to add
that the issues of determining on what date an application for benefits was
sent by an applicant and of determining on what date the application in
question was received by the Department are questions of fact that are within
the jurisdiction of the Review Tribunal. It may decide the issue on the basis
of the testimonies heard and the documents filed, or even on the basis of
presumptions, on a balance of probabilities. However, the crux of the dispute
is the Minister’s initial decision and revised decision, which were rendered on
the basis of the application for benefits received by the Minister on
April 14, 2004, and on the basis of another application for benefits
completed by the applicant and which was not found, assuming it exists, by the
Minister.
[9]
Sections 8
and 27.1, subsection 28 (1) and section 32 of the Old Age Security Act,
R.S.C. 1985, c. O-9 (hereafter “Act”) are relevant to the case at bar.
They read as follows:
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8. (1) Payment of pension to any
person shall commence in the first month after the application therefore has
been approved, but where an application is approved after the last day of the
month in which it was received, the approval may be effective as of such
earlier date, not prior to the day on which the application was received,
as may be prescribed by regulation.
(2) Notwithstanding
subsection (1), where a person who has applied to receive a pension attained
the age of sixty-five years before the day on which the application was
received, the approval of the application may be effective as of such earlier
day, not before the later of
(a)
a day one year before the day on which the application was received,
and
(b)
the day on which the applicant attained the age of sixty-five years, as may
be prescribed by regulation.
27.1 (1) A person who is dissatisfied
with a decision or determination made under this Act that no benefit
may be paid to that person, or respecting the amount of any benefit
that may be paid to that person, may, within ninety days after the day on
which the person is notified in the prescribed manner of the decision or
determination, or within such longer period as 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.
(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 the person who made the request in writing of the
Minister’s decision and of the reasons for the decision.
28.(1) A person who makes a request
under subsection 27.1(1) and who is dissatisfied with the decision of the
Minister in respect of the request, or, subject to the regulations, any
person on their behalf, may appeal the decision to a Review Tribunal under
subsection 82(1) of the Canada Pension Plan.
…
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
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8. (1) Le premier versement de la
pension se fait au cours du mois qui suit l’agrément de la demande présentée
à cette fin; si celle-ci est agréée après le dernier jour du mois de sa
réception, l’effet de l’agrément peut être rétroactif au jour — non antérieur
à celui de la réception de la demande — fixé par règlement.
(2) Toutefois, si le demandeur
a déjà atteint l’âge de soixante-cinq ans au moment de la réception de la
demande, l’effet de l’agrément peut être rétroactif à la date fixée par
règlement, celle-ci ne pouvant être antérieure au soixante-cinquième
anniversaire de naissance ni précéder de plus d’un an le jour de réception
de la demande.
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 de la décision, selon les
modalités réglementaires, 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.
(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.
28.(1) L’auteur de la demande prévue
au paragraphe 27.1(1) qui se croit lésé par la décision révisée du ministre —
ou, sous réserve des règlements, quiconque pour son compte — peut appeler de
la décision devant un tribunal de révision constitué en application du
paragraphe 82(1) du Régime de pensions du Canada.
(…)
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.
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[10]
Sections 3
and 5 of the Old Age Security Regulations, C.R.C., c. 1246 (hereafter
“Regulations”), must also be considered. These provisions read as follows:
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3. (1) Where
required by the Minister, an application for a benefit shall be made on an
application form.
(2) Subject
to subsections 5(2) and 11(3) of the Act, an application is deemed to have
been made only when an application form completed by or on behalf of an
applicant is received by the Minister.
5. (2) Where
the Minister is satisfied that an applicant mentioned in subsection (1)
attained the age of 65 years before the day on which the application was received,
the Minister’s approval of the application shall be effective as of the
latest of
(a)
the day that is one year before the day on which the application was received,
(b) the day on which the
applicant attained the age of 65 years;
(c) the day on which the
applicant became qualified for a pension in accordance with sections 3 to 5
of the Act; and
(d) the month
immediately before the date specified in writing by the applicant.
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3. (1) Si
le ministre l’exige, la demande de prestation doit être présentée sur une
formule de demande.
(2) Sous réserve des paragraphes 5 (2)
et 11(3) de la Loi, une demande n’est réputée présentée que si une formule de
demande remplie par le demandeur ou en son nom est reçue par le
ministre.
5. (2) Lorsque le ministre est convaincu
que le demandeur visé au paragraphe (1) a atteint l’âge de 65 ans avant la
date de réception de sa demande, l’agrément de celle-ci prend effet à
celle des dates suivantes qui est postérieure aux autres :
a) la date qui précède d’un an celle de
la réception de la demande;
b) la date à laquelle le demandeur a
atteint l’âge de 65 ans;
c) la date à laquelle le demandeur est
devenu admissible à une pension selon les articles 3 à 5 de la Loi;
d) le mois précédant la date indiquée
par écrit au demandeur.
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[11]
Finally,
subsections 82(1) and (11) as well as subsection 84(1) of the Canada Pension
Plan, R.S.C. 1985, c. C-8 (hereafter “CPP”), are also relevant:
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82. (1) A party who is dissatisfied
with a decision of the Minister made under section 81 or subsection 84(2), or
a person who is dissatisfied with a decision of the Minister made under
subsection 27.1(2) of the Old Age Security Act, or, subject to the
regulations, any person on their behalf, may appeal the decision to a Review
Tribunal in writing within 90 days, or any longer period that the
Commissioner of Review Tribunals may, either before or after the expiration
of those 90 days, allow, after the day on which the party was notified in the
prescribed manner of the decision or the person was notified in writing of
the Minister’s decision and of the reasons for it.
…
(11) A
Review Tribunal may confirm or vary a decision of the Minister made
under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old
Age Security Act and may take any action in relation to any of those
decisions that might have been taken by the Minister under that section or
either of those subsections, and the Commissioner of Review Tribunals shall
thereupon notify the Minister and the other parties to the appeal of the
Review Tribunal’s decision and of the reasons for its decision.
84.(1) A
Review Tribunal and the Pension Appeals Board have authority to determine any
question of law or fact as to
(a) whether any benefit is payable to a
person,
(b)
the amount of any such benefit,
(c) whether any person is eligible for
a division of unadjusted pensionable earnings,
(d) the amount of that division,
(e) whether any person is eligible for
an assignment of a contributor’s retirement pension, or
(f)
the amount of that assignment,
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82.(1) La personne qui se croit lésée
par une décision du ministre rendue en application de l’article 81 ou du
paragraphe 84(2) ou celle qui se croit lésée par une décision du ministre
rendue en application du paragraphe 27.1(2) de la Loi sur la sécurité de
la vieillesse ou, sous réserve des règlements, quiconque de sa part,
peut interjeter appel par écrit auprès d’un tribunal de révision de la
décision du ministre soit dans les quatre-vingt-dix jours suivant le jour où
la première personne est, de la manière prescrite, avisée de cette décision,
ou, selon le cas, suivant le jour où le ministre notifie à la deuxième
personne sa décision et ses motifs, soit dans le délai plus long autorisé par
le commissaire des tribunaux de révision avant ou après l’expiration des
quatre-vingt-dix jours.
(…)
(11) Un
tribunal de révision peut confirmer ou modifier une décision du ministre
prise en vertu de l’article 81 ou du paragraphe 84(2) ou en vertu du
paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il
peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en
application de ces dispositions; le commissaire des tribunaux de révision
doit aussitôt donner un avis écrit de la décision du tribunal et des motifs
la justifiant au ministre ainsi qu’aux parties à l’appel.
84. (1) Un tribunal de révision et la
Commission d’appel des pensions ont autorité pour décider des questions de
droit ou de fait concernant :
a) la question
de savoir si une prestation est payable à une personne;
b) le montant
de cette prestation;
c) la question de savoir si une personne est admissible à un
partage des gains non ajustés ouvrant droit à pension;
d) le montant de ce partage;
e) la question de savoir si une personne est admissible à
bénéficier de la cession de la pension de retraite d’un cotisant;
f) le montant de cette cession.
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and the decision of a Review Tribunal,
except as provided in this Act, or the decision of the Pension Appeals Board,
except for judicial review under the Federal Courts Act, as the case
may be, is final and binding for all purposes of this Act.
(Emphasis added.)
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La décision du tribunal de révision, sauf disposition contraire de
la présente loi, ou celle de la Commission d’appel des pensions, sauf
contrôle judiciaire dont elle peut faire l’objet aux termes de la Loi sur
les Cours fédérales, est définitive et obligatoire pour l’application de
la présente loi.
(Je souligne.)
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[12]
As may be
seen, the Review Tribunal is a statutory tribunal whose jurisdiction and
authority are set out in particular in subsection 27.1(1) and in section 28 of
the Act, as well as in sections 82 and 84 of the CPP. Accordingly, the Review
Tribunal does not have any jurisdiction in equity and may not, for example,
order the Minister to make an ex gratia payment (Canada (Minister of
Human Resources Development Canada) v. Dublin (Estate of), supra).
However, it has already been decided that a review tribunal does not have
jurisdiction to set aside a decision of the Minister made under section 32 of
the Act. In such a case, it is the Federal Court that has jurisdiction (Pincombe
v. Canada (Attorney General), [1995] F.C.J. No. 1320 (F.C.A.) (QL); Canada
(Minister of Human Resources Development) v. Tucker, 2003 FCA 278, [2003]
F.C.J. No. 998 (QL); Kissoon v. Canada (Minister of Human Resources
Development Canada), 2004 FCA 384, [2004] F.C.J. No. 1949 (QL); Canada
(Minister of Human Resources Development) v. Mitchell, 2004 FC 437,
[2004] F.C.J. No. 578 (F.C.) (QL)).
[13]
The
Minister’s revised decision was rendered pursuant to subsection 27.1(2) of the
Act. Accordingly, the Review Tribunal had jurisdiction under subsection 28(1)
of the Act to hear the appeal brought by Ms. Vinet-Proulx against the revised
decision (Minister of Human Resources Development v. Dublin (Estate of),
supra). In such a case, under subsection 82(11) of the CPP, the Review
Tribunal has jurisdiction to confirm or vary the Minister’s revised decision
and may take any measure that might have been taken by the Minister under
subsection 27.1(2) of the Act. Under this subsection, the Minister may take the
following measures: he may confirm or vary the previous decision, either by
approving the payment of the benefit and determining its amount or by
determining that no benefit is payable. It should be noted that, under the Act,
the term “benefit” means “a pension, supplement or allowance”, which are
payments authorized under Parts I, II and III, respectively.
[14]
Therefore,
the question arises as to whether in the case of a request for reconsideration
of the Minister’s initial decision, the Minister was authorized under
subsection 27.1(2) of the Act, following the approval of the application
for benefits received on April 14, 2004, to allow the retroactive payment of a
pension for a period previous to May 2003. In this case, subsection 8(2) of the
Act and subsection 5(2) of the Regulations are clear and do not give the
Minister any discretion: the approval of the application for benefits cannot
take effect any earlier than one year before the date the application in
question was received. Under subsection 3(2) of the Regulations, the
application for benefits that gave rise to the Minister’s initial decision was
received by the Department on April 14, 2004, and was “deemed to have been
made” by Ms. Vinet-Proulx on that date. Accordingly, I conclude that the Review
Tribunal did not have jurisdiction to award pension benefits retroactively from
the month of July 2002, as this is contrary to the legislative and regulatory
provisions on which the Minister’s initial decision and revised decision are
based.
[15]
The
representative of the Attorney General of Canada acknowledged at the hearing
before this Court that the appeal of Ms. Vinet-Proulx was doomed to failure
right from the start, even though the issue of the Review Tribunal’s lack of
jurisdiction to award benefits prior to May 2003 was not formally raised by the
Department’s representative who appeared before the Review Tribunal. That being
said, under section 32 of the Act, the Minister may take such action as the
Minister considers appropriate to place the person in the position that the
person would be in, if the Minister is satisfied that a person, as a
result of erroneous advice or administrative error in the administration of
this Act, has been denied a benefit, or a portion of a benefit, to which that
person would have been entitled. This would obviously include the possibility of paying a retroactive
pension in a case in which it is more likely that a previous application for
benefits had been sent in by an applicant and received by the Minister on a
certain date but subsequently lost because of an administrative error.
[16]
For these
reasons, I have no other choice but to allow this application for judicial
review, which appears to me to be well founded. The decision rendered by the
Review Tribunal must be set aside, and the Minister’s revised decision must be
restored. However, this is not a case in which costs should be allowed.
[17]
In
conclusion, I note that even if this application for judicial review is allowed
by the Court, which is the case here, the representative of the Attorney
General of Canada made an undertaking to the effect that any application made
by Ms. Vinet-Proulx under section 32 of the Act would be processed rapidly by
the Department. If a new application for judicial review is filed, this Court
may eventually have to rule on the reasonableness or unreasonableness of the decision
which the Minister may later make under section 32 of the Act, should the
Minister render a negative decision in this case.
ORDER
THE COURT
ORDERS that
the application for judicial review be allowed. The decision of the Review
Tribunal is set aside, and the revised decision of the Minister is restored,
without costs.
“Luc
Martineau”
Certified true
translation
Michael Palles
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