Docket: T-771-13
Citation:
2015 FC 224
Calgary, Alberta, February 19, 2015
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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GORDON ROLAND LEWIS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
I.
INTRODUCTION
[1]
Mr. Gordon Roland Lewis (the “Applicant”) seeks
judicial review of the decision of the Honourable D. H. Medhurst, a Designated
Member (the “Member” or the “Designated Member”) of the Pension Appeals Board.
In that decision, the Member refused the Applicant’s application for leave to
appeal from a decision of the Review Tribunal upholding a re-consideration decision
by Karen Olmstead, National Information and Benefit Services, Service Canada, that
his pension benefits had been correctly calculated in accordance with the Canada
Pension Plan, R.S.C. 1985, c. C-8 (the “Plan”), and he was therefore not
entitled to an increase in his monthly benefits rate.
[2]
In his application for judicial review, the
Applicant seeks an order quashing the decision of the Designated Member,
reconsideration of his application for leave to appeal, an order for recovery
of losses, and costs in connection with this Application.
II.
BACKGROUND
[3]
The following facts and details are taken from
the Tribunal Record that was provided by the Pension Appeals Board, as well as
from the affidavit filed by the Applicant in support of this proceeding. No
affidavit was filed on behalf of the Attorney General of Canada (the
“Respondent”) who, pursuant to Rule 303(2) of the Federal Courts
Rules, SOR/98-106 (the “Rules”), represents the Minister of Employment and
Social Development.
[4]
The Applicant was born on May 12, 1945.
Following completion of his education he worked as a carpenter. In December
1982, he was seriously injured in a car accident and was unable to work as a
carpenter for many years. As a consequence of his inability to work, the
Applicant did not contribute to the Plan between 1982 and 1994. He returned to
work in 1998.
[5]
By letter dated July 27, 2009, the Applicant
made inquiries of the Alberta Regional Office of the Canada Pension Plan about
his future entitlement to retirement pension benefits. He referred to the car
accident and said that it made him “unable to work
effectively for about 17 years.”
[6]
The Applicant further advised that he was unable
to find a lawyer to act on his behalf in seeking damages.
[7]
Service Canada replied to the Applicant’s
inquiry by letter dated August 4, 2009. In part, Service Canada advised as
follows:
When we calculate your pension, we may be
able to drop certain periods from your contributory period to increase the
amount of your pension. The following periods may be left out of the pension
calculation:
• any months you were eligible for a
Canada Pension Plan or Quebec Pension Plan Disability benefit if it is your
case;
• periods when you stopped working or your earnings were lower
while you were raising a child under the age of 7;
• low earning months after the age of 65; and
• 15% of your lowest earning years in your contributory period.
(This is what we call the drop out factor.)
Your contributory
period began in January 1966 and will end the month before the start of your
pension. We estimate your pension at age 65 to be $425.11.
The information
in your file shows your pensionable earnings were as follows: …
[8]
The Applicant sent another letter dated July 9,
2010, to Service Canada responding to the information provided about “possible pension benefits.” He again referred to the
motor vehicle accident in which he was injured in December 1982 and his
difficulties in finding legal representation. The Applicant repeated his
earlier suspicion that the lawyers whom he consulted were in a conflict of
interest with the insurance underwriters and he was not able to pursue a claim
for insurance benefits.
[9]
The Applicant said that he was unable to
function for several years as a result of the accident. He further claimed that
he has “repeatedly” claimed that the 17 years
when he was not working should be deleted from the calculation of his pension
entitlement.
[10]
Further, the Applicant said that he had been
informed previously by a “CPP agent” that his
years of “great personal loss and inability to pay
could be removed.”
[11]
The Applicant also said that he recently learned
that he should have “qualified for disability”
under the Plan. He said no lawyer had ever advised him of that possibility.
[12]
Finally, in this letter, the Applicant expressed
the opinion that since he paid maximum CPP premiums in most years, he should be
entitled to the maximum benefit. He said he could not consider retirement until
the issue of his pension benefits had been resolved.
[13]
Service Canada replied to the Applicant by
letter dated July 28, 2010, from Wheatley, A / Benefit Officer.
The officer advised that since the Applicant had not applied for a retirement
pension and has not been denied a benefit. The letter further advised that:
A letter of contributions was sent to you
August 4, 2009 (copy enclosed) explaining the calculation of Canada Pension and
the dropout factor of 15% based on low or no earning years. There are no
further provisions allowed within Canada Pension for years that you were not
able to contribute to the plan.
[14]
The letter set out estimations of the
Applicant’s pension benefits as follows:
Estimates only of your Canada Pension
Retirement Pension including any new earnings up to and including 2009
contributions are as follows:
At age 65 your estimated
Retirement pension would be $450.00 monthly.
At age 70 your estimated
Retirement pension would be $580.00 monthly.
[15]
The Applicant submitted his application for
retirement pension benefits on August 6, 2010. That application was approved by
Service Canada on September 1, 2010, with an effective date of June 2010.
[16]
On May 18, 2011 the Applicant requested that Service
Canada reconsider the decision about the amount of his pension benefits. By
letter dated May 19, 2011 Karen Olmstead of Service Canada, advised the
Applicant that after reviewing and reconsidering the file, Service Canada would
be maintaining its original decision. She advised the Applicant of his right to
appeal to a Review Tribunal.
[17]
By letter dated May 31, 2011, the Applicant
indicated his intention to appeal the decision about his pension benefits. The
Applicant’s application for pension benefits was received by the Office of the
Commissioner of Review Tribunals on October 3, 2011.
[18]
The Applicant’s appeal before the Review
Tribunal was held on September 11, 2012. The decision of the Review Tribunal
was delivered on November 1, 2012. In that decision, the Review Tribunal
reviewed the facts about the Applicant’s work history and his contributions to
the Plan, as well as the relevant statutory provisions. It decided that since
the Applicant had never been found to be disabled pursuant to subsection 49(c)
of the Plan, the “dropout” provision of
subsection 49(c) did not apply. The Review Tribunal found that the Applicant’s
pension benefits were correctly calculated.
[19]
The Applicant then submitted an application for
leave to appeal to the Pension Appeals Board. The grounds of appeal were that
the Review Tribunal had failed to consider the false information that was
allegedly provided to the Applicant by CPP employees. He also alleged that CPP
agents failed to advise him that, in order to have the years in which he was
not working excluded from the pension benefits calculations, he would have had
to be in receipt of disability benefits for the years in question.
[20]
In a decision dated March 22, 2013, the
Designated Member dismissed the application for leave to appeal, on the basis
that the decision of the Review Tribunal was correct. The Member stated that
subsection 49(c) applies only when a person seeking pension benefits has been
in receipt of a disability pension and when there “has
been a specific finding of disability” under the Plan.
III.
SUBMISSIONS
[21]
The Applicant now argues that the decisions made
about his pension benefits were wrong and that he was misled into applying for
his pension benefits earlier than he had wished to do so. Further, he submits
that he was given erroneous advice by “CPP agents”.
He alleges that he was unfairly treated by employees of the Plan and that he
was subjected to “excessive distress”, including
the return of premiums by Revenue Canada.
[22]
The Respondent argues that the decision of the
Designated Member meets the applicable legal standards and that there is no
basis to interfere with the decision.
IV.
DISCUSSION AND DISPOSITION
[23]
The first matter to be addressed is the nature
of this proceeding. An application for judicial review is a means by which a
decision made by an administrative or statutory decision-maker is reviewed by
the Court. The powers of the Court are limited to a review of the process
followed by the decision-maker. The decision is to be assessed against a
standard of review.
[24]
The next matter to be addressed is the
applicable standard of review. According to the decision of the Supreme Court
of Canada in Agraira v. Canada (Minister of Safety and Emergency
Preparedness), [2013] 2 S.C.R. 559 at paragraph 48, where the jurisprudence
has satisfactorily established a standard of review, that standard can be
adopted.
[25]
The prior jurisprudence has established that
judicial review of a decision to grant or refuse an application for leave to
appeal to the Board involves a two-step inquiry. First, the Court must ask if
the tribunal applied the correct test of an arguable case, and second, whether
a reviewable error was made in determining whether the requirements of the test
were made out. In this regard, I refer to the decision in Callihoo v. Canada (Attorney General) (2000), 190 F.T.R. 114, where the Court said the following at
paragraph 15:
… the review of a decision concerning an
application for leave to appeal to the [Pension Appeals Board] involves two
issues,
1. whether the decision maker has applied the right test –
that is, whether the application raises an arguable case without otherwise
assessing the merits of the application, and
2. whether the decision maker has erred in law or in
appreciation of the facts in determining whether an arguable case is raised.
If new evidence is adduced with the application, if the application raises an
issue of law or of relevant facts not appropriately considered by the Review
Tribunal in its decision, an arguable issue is raised for consideration and it
warrants the grant of leave.
[26]
The first issue, that is whether the Designated
Member applied the correct legal test, is a question of law that is reviewed on
a standard of correctness; see the decision in Canada (Attorney General) v.
Zakaria, 2011 FC 136 at paragraph 15.
[27]
A correctness review means that the reviewing
Court can look at the matter anew and decide if the correct test was applied.
[28]
The meaning of “arguable case” was discussed in Canada (Attorney General) v. Carroll (2011), 397 F.T.R. 166 at paragraph 14,
where the Court said:
The [Pension Appeals Board] also has a duty
to apply the correct test for granting leave to appeal. The test is whether the
applicant requesting leave has raised an arguable case (Callihoo v Canada (Attorney General), [2000] FCJ No 612 (TD)). An applicant will raise an
arguable case if she puts forward new or additional evidence (not already
considered by the RT), raises an issue not considered by the RT, or can point
to an error in the RT’s decision.
[29]
The second part of the test, that is whether an
error was made in determining whether an arguable case was raised, is
reviewable on the standard of reasonableness. The standard of reasonableness
means that the decision is supported by evidence and is understandable, having
regard to the relevant statutory scheme.
[30]
Although the Designated Member did not
specifically state the first part of the test, I am satisfied that
consideration of the test is implicit in the decision, and there is no error in
that regard.
[31]
I now turn to whether the Designated Member
erred in determining that no arguable case was raised. The Designated Member
reviewed the essential elements of the Applicant’s complaint. No new evidence
was presented, the Applicant did not raise an issue that was not raised before
the Review Tribunal, nor did he identify an error in the decision of the Review
Tribunal.
[32]
The Designated Member was mandated to look at
the decision of the Review Tribunal and assess the grounds of appeal asserted
by the Applicant in his application for leave. At a minimum, he must base such
an arguable case on relevant matters. His submissions about bad legal advice
or misinformation from employees of the Plan, even if supported by evidence,
are not relevant to the issue of the calculation of his pension.
[33]
The Applicant, in his submissions before both
the Review Tribunal and in his application for leave to appeal the decision of
the Review Tribunal, challenges the manner in which his pension was calculated.
This requires consideration of the relevant statutory provisions.
[34]
The calculation of a pension is governed by
subsection 46 of the Plan which provides as follows:
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46. (1) Subject
to this section, a retirement pension payable to a contributor is a basic
monthly amount equal to twenty-five per cent of his average monthly
pensionable earnings.
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46. (1) Sous
réserve des autres dispositions du présent article, une pension de retraite
payable à un cotisant est un montant mensuel de base égal à vingt-cinq pour
cent de la moyenne mensuelle de ses gains ouvrant droit à pension.
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[35]
The Plan further allows for removal of the lowest earning years,
otherwise called the “dropout”
provision, pursuant to paragraph 48(4)(a) which provides as follows:
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48. (4) Where the number of months remaining after making any
deduction under subsection (2) or (3) from the total number of months in the
contributory period of a contributor exceeds one hundred and twenty, in
calculating his average monthly pensionable earnings in accordance with
subsection
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48. (4) Lorsque le nombre des mois restant, une fois faite toute
déduction prévue par le paragraphe (2) ou (3), du nombre total de mois
compris dans la période cotisable d’un cotisant excède cent vingt, il doit,
dans le calcul de sa moyenne mensuelle des gains ouvrant droit à pension en
conformité avec le paragraphe
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(1) there shall be deducted
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(1), être déduit :
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(a) from the number of months remaining, a number of months equal
to the lesser of
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a) du nombre de mois ainsi restant, un nombre de mois égal au
moins élevé des deux chiffres obtenus respectivement aux sous-alinéas (i) et
(ii) :
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[36]
Section 49 provides another “dropout”
provision where a person has been in receipt of a disability pension.
Subsection 49(b) and (c) are relevant to the Applicant and provide as follows:
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49. The
contributory period of a contributor is the period commencing January 1, 1966
or when he reaches eighteen years of age, whichever is the later, and ending
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49. La
période cotisable d’un cotisant est la période commençant soit le 1er janvier
1966, soit lorsqu’il atteint l’âge de dix-huit ans, selon le plus tardif de
ces deux événements, et se terminant :
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…
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…
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(b) where a benefit other than a disability pension commences
after the end of 1986, with the earliest of
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b) dans les cas où une prestation, autre qu’une pension d’invalidité,
commence après la fin de 1986, avec le premier des mois suivants à survenir :
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(i) the month preceding the month in which he reaches seventy
years of age,
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(i) le mois précédant celui au cours duquel il atteint l’âge de
soixante-dix ans,
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(ii) the month in which he dies, or
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(ii) le mois de son décès,
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(iii) the month preceding the month in which the retirement
pension commences,
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(iii) le mois précédant celui au cours duquel la pension de
retraite commence,
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but excluding
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mais cette période ne comprend pas :
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(c) any month that was excluded from the contributor’s
contributory period under this Act or under a provincial pension plan by
reason of disability, and …
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c) un mois qui, en raison d’une invalidité, est exclu de la
période cotisable de ce cotisant conformément à la présente loi ou à un
régime provincial de pensions; …
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[37]
The Review Tribunal found that the Applicant had never been found to be
disabled pursuant to subsection 49(c) of the Plan and that consequently,
subsection 49(c) did not apply to him.
[38]
The Applicant is claiming that he was disabled after the accident in
December 1982, and that the years in which he was unable to work due to his
disability should be removed from the calculation of his retirement pension
benefits under the Plan.
[39]
The determination of a “disability” pursuant to the Plan does not depend
upon self-assessment. I note that the Plan is a statutory scheme that allows
for the payment of benefits in defined situations as set out in the
legislation.
[40]
As discussed in Granovsky v. Canada (Minister of Employment and
Immigration), [2000] 1 S.C.R. 703, the Plan is not a social welfare scheme,
but a program to provide social insurance to eligible Canadians who lose
earnings due to disability, among other things
[41]
Whether or not a person is eligible for CPP
Disability Benefits depends on whether the individual meets the definition of
disability set out in paragraph 42(2)(a) of the Plan, which provides as
follows:
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42. (2) For the purposes of this Act,
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42. (2) Pour l’application de la présente loi :
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(a) a person shall be considered to be disabled only if he is
determined in prescribed manner to have a severe and prolonged mental or
physical disability, and for the purposes of this paragraph,
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a) une personne n’est considérée comme invalide que si elle est
déclarée, de la manière prescrite, atteinte d’une invalidité physique ou
mentale grave et prolongée, et pour l’application du présent alinéa :
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[42]
Under the Plan, “disability” is determined by a
Disability Adjudicator for the Plan. It is not a self-assessment process. The
decision to grant a disability benefit requires compliance with the statutory
terms.
[43]
Under the statutory test for disability, the
question is not whether an applicant has health problems, but rather, whether
an applicant has a disability that is both severe and prolonged, so as to
render the claimant disabled within the meaning of the Plan.
[44]
The Applicant was never found to be disabled within the meaning of the
Plan. He was consistently advised of this fact by the officers and administrators
of the Plan.
[45]
The statutory scheme does not provide discretion to dispense with
compliance with the statutory conditions for obtaining a pension.
[46]
Further, the statute confers no discretion upon the Designated Member to
exercise any equitable powers to grant leave to appeal. The decision of the
Designated Member was in accordance with the applicable legal principles and is
reasonable. There is no basis for judicial intervention. Accordingly, this
application for judicial review is dismissed, with no order as to costs, since
the Respondent does not seek costs.
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