Date: 20150831
Docket:
T-2311-14
Citation:
2015 FC 1032
Ottawa, Ontario, August 31, 2015
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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FAZIER MOHAMED MACKEEN
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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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JUDGMENT AND REASONS
[1]
This is an Application for judicial review pursuant
to subsection 18.1(1) of the Federal Courts Act, RSC 1985, c F-7 of a
decision dated October 10, 2014 made by a delegate of the Minister of Human
Resources and Skills Development Canada, (Minister’s delegate/Department) as it
was then called.
[2]
For the reasons that follow, this application
for judicial review is dismissed.
I.
THE DECISION UNDER REVIEW
[3]
In 2012, the Applicant was granted a CPP
disability pension retroactive to April, 2010, which was the maximum period permitted
under the legislation. However the Applicant claims he was entitled to have the
pension retroactive to either September or October 2004 as he alleges he
received erroneous advice in 2004 with respect to whether he could apply for
the pension. It is the decision of the Minister’s delegate denying him this
retroactivity to 2004 which is under review in this case.
[4]
The decision was rendered pursuant to subsection
66 (4) of the Canada Pension Plan, R.S.C. 1985, c. C – 8 (CPP) which
states that:
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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.
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66. (4) Dans le cas
où le ministre est convaincu qu’un avis erroné ou une erreur administrative
survenus 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.
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[5]
The Minister’s delegate concluded that the Applicant
was not denied a benefit as a result of erroneous advice or administrative
error committed by the Department. As a result, the Applicant’s request
pursuant to subsection 66 (4) for remedial action to place the Applicant in the
position he would have been had the erroneous advice not been given or the
administrative error not been made was refused.
[6]
After reviewing the materials on file (as
detailed below) the Minister’s delegate concluded that it could not be
confirmed that the Applicant had the conversations in question and, in the case
of an allegation that the decision-maker used wrong information, the Minister’s
delegate was satisfied that the information did not result in denial of a
benefit.
[7]
Put differently, the Minister’s delegate’s findings
were that the Applicant did not meet the onus of proving his allegations on a
balance of probabilities.
II.
PROCEDURAL & INVESTIGATIVE HISTORY
[8]
On July 25, 2011 the Applicant applied for CPP
disability benefits.
[9]
His application was approved by the Department
on February 23, 2012. He received payments retroactive to April 2010 which was
15 months before the receipt of his application. That is the maximum amount
permitted under the Plan.
[10]
The Department telephoned the Applicant on
February 23, 2012 to advise him of the decision. In that conversation the Applicant
indicated he had contacted the Department in 2004 about making an application
for CPP disability benefits but was told he would not qualify as, at that time,
he was receiving Worker’s Compensation Benefits.
[11]
On March 13, 2012 the Applicant sent a letter to
Service Canada stating that in 2004 his psychiatrist advised him to apply for
CPP disability benefits and between September and October 2004 he called O
Canada to obtain the contact information for CPP disability.
[12]
He stated that he called the number provided to
him and a female employee spoke with him. He says she asked if he was receiving
any other benefits and, upon learning that he was receiving WSIB payments, she
said he would not be entitled to CPP disability benefits.
[13]
His letter also stated that in 2005 his
psychiatrist asked him if he had applied for CPP disability benefits. The Applicant
said he was already getting WSIB benefits. Finally, the letter says that in
2011 when visiting his family doctor he asked her if he would be eligible for
CPP disability benefits and she told him to bring in the forms which she would
sign. This was done and he mailed the forms.
[14]
As a result of the Applicant’s letter the
Department conducted an investigation and on May 8, 2013 sent the Applicant a
short letter saying after careful review of the information it had been determined
that he had not been denied the benefit as a result of erroneous advice.
[15]
After receiving the denial letter the Applicant
commenced, on June 3, 2013, an application for judicial review of the
decision. When he filed his affidavit material an additional allegation was
made saying that on May 8, 2012 the Applicant called the Department and “spoke with a person named Debra” who said he would
not qualify for a “retro payment” because he had
not contributed enough to CPP.
[16]
The Department filed submissions with the Court
on September 17, 2013 requesting an Order issue remitting the matter back to a
new Minister’s delegate for redetermination.
[17]
Although the Applicant objected to the
Department’s request, the matter was referred back to a different Minister’s
delegate on October 17, 2013.
[18]
On November 19, 2013 the new delegate wrote to
the Applicant inviting him to send to her any additional information, evidence,
or submissions that he believed would support his claim. No such submissions
were filed so the investigation was conducted using the documents and evidence
already on file.
[19]
In the decision dated October 10, 2014 the Minister
indicated she had taken the following steps as part of her investigation:
(1)
reviewed the chronological background beginning
with receipt of the application July 25, 2011;
(2)
considered the legislative provisions in
subsection 66(4);
(3)
identified there were three separate instances
of alleged erroneous advice or administrative error raised by the Applicant
being (i) erroneous advice in 2004 (telephone call), and (ii) 2012 (telephone
call) and (iii) administrative error by the investigator relying upon wrong
information by assuming the Applicant had spoken to an agent from O Canada and
not an agent from the CPP disability program;
(4)
spoke with a senior manager of CPP and OAS
program delivery in the Call Centre Directorate at Service Canada;
(5)
corresponded with “Debra”
with whom the Applicant spoke on May 8, 2012 and,
(6)
verified the operations manuals and procedures
which were in use during the time of the Applicant’s alleged phone call in
2004.
[20]
As set out in the decision letter the reasons
for denying the subsection 66(4) claim were:
Based on the evidence I reviewed, I am
satisfied that you have not met the burden of proof to show that on a balance
of probabilities you were denied a benefit or a portion of a benefit as a
result of erroneous advice provided by the Department, or an administrative error
committed by the Department.
III.
STANDARD OF REVIEW
[21]
Counsel were in agreement that the appropriate
standard of review in this matter is reasonableness.
[22]
I agree that applicable standard of review of
the decision is reasonableness and, if there is an error, the question of
whether the error resulted in a deprivation of benefits which would otherwise
have been payable is also reviewable on the standard of reasonableness. Canada
(Attorney General) v Torrance, 2013 FCA 227.
IV.
THE ISSUES
[23]
There is no issue as to whether or not the Applicant
is disabled. The general issue from the Applicant’s point of view is whether
the disability benefit should be retroactive to 2004.
[24]
The parties agree that the issue before the
Court is not whether erroneous advice was given but rather upon a review of the
Minister’s delegate’s decision whether there was an error which would trigger
the provisions of subsection 66(4).
[25]
Subsection 66(4) of the Canada Pension Plan enables
the Minister to take remedial action that would place a person in the position
that the person would be in had the erroneous advice not been given or
administrative error not been made.
[26]
The Minister must be satisfied that the person
was denied a benefit due to the administrative error or as a result of the
erroneous advice.
[27]
The role of the Court in these circumstances is
not to reweigh the evidence, but rather to assess whether the proper factors
and appropriate procedures were followed by the Minister. Lee v. Canada
(Attorney General), 2011 FC 689.
V.
THE APPLICANT’S POSITION
[28]
Counsel for the Applicant framed this as a
simple, straightforward case which is very fact specific.
[29]
Counsel urged that the Applicant was an innocent
person who in 2004 made a telephone call and, in his innocence, had no idea
that he was walking into what was characterized by counsel as a potential legal
quagmire.
[30]
It was conceded that the only evidence before
the Court were two letters. One was written by the Applicant on March 13, 2012.
It is one typed-page long. The other letter, which appears to have been
dictated on February 10, 2012 by the Applicant’s psychiatrist, confirms he first
saw the Applicant on September 28, 2004.
[31]
I am urged by the Applicant’s counsel to find
the psychiatrist’s letter is corroborative of the fact that he saw the Applicant
in 2004 and also corroborative of the general condition of disability of the Applicant.
Neither of those facts were disputed and I find the letter to be corroborative
of them. My finding does not extend as far as to say the letter corroborates
the Applicant’s claim. It is a medical report and does not address in any way
though matters in the issue here.
[32]
The other evidence before the Court is the
decision of the Minister’s delegate. Counsel for the Applicant urges me to find
that is the only other evidence before the Court.
[33]
Prior to now the Applicant has represented
himself throughout the proceedings. As a result, there is no sworn evidence by
way of statutory declarations or affidavits and also no confirmatory letters
from the psychiatrist or others. We simply have the letter written by the
Applicant outlining his plight and a letter confirming he was under psychiatric
care in 2004.
[34]
The Applicant points to the inability of the Minister’s
delegate, as expressed in the decision, to verify that the Applicant had any
interactions in 2004 with the Department. He alleges this shows there was no
evidence before the Minister’s delegate other than the evidence of the Applicant.
Counsel submitted that the Minister’s delegate then speculated what would have
happened given the Call Centre protocols in place at the time and disregarded the
evidence of the Applicant.
[35]
The Applicant’s submission was there was some
evidence from the Applicant before the court but there was no evidence
from the Respondent - there was just an investigation.
VI.
THE RESPONDENT’S POSITION
[36]
Counsel for the Respondent made the following unchallenged
submissions with respect to the applicable law when reviewing a decision made
under subsection 66(4) and I agree they apply in this case:
(1)
there are no procedures prescribed for an
investigation under subsection 66(4); Leskiw v Canada (AG), 2003 FCT 582
aff’d at 2004 FCA177
(2)
the duty to take remedial action arises only if
the Minister is satisfied erroneous advice was given; Kissoon v Canada, 2004
FC 24 aff’d by 2004 FCA 384
(3)
the Minister has wide discretion under subsection
66 (4) as to remedial action and to an informal determination of the facts; Graceffa
v Canada (Minister of Social Development), 2006 FC 1513
(4)
on judicial review of a decision of the Minister
the finding should not be disturbed on the basis that the court would have come
to a different conclusion; Kissoon v Canada, 2004 FC 24 at par. 5 aff’d
by 2004 FCA 384
(5)
the issue is not whether it was possible
that erroneous advice had been given but rather, did the facts satisfy the
Minister that erroneous advice had been given; (My emphasis) Manning
v Canada (Human Resources Development, 2009 FC 523
(6)
the burden of proof is on the Applicant to show
on a balance of probabilities that erroneous advice was received and that such
erroneous advice denied the Applicant a benefit under the Plan. Manning
v Canada (Human Resources Development), 2009 FC 523
[37]
The Respondent submits the decision by the
Minister fell within the range of possible, acceptable outcomes. Counsel relies
on the decision in Lee, above, at paragraph 99 which states:
The law governing CPP benefits says that, if
the applicants are to receive benefits back to 1998, they must prove
– with witnesses or documents – that they were given incorrect advice or that
there was an administrative error with respect to their application. The
applicants must convince the decision-maker that such an error has occurred. …The
Applicants must show that their version of events is the more likely one. (Emphasis
in original)
[38]
The Respondent points to the thorough analysis
done by the investigator which included a review and consideration of all of
the documentation in the physical and electronic files of the Applicant as well
as a review of the computer system used by the department in 2004 to manage CPP
benefits and the computer system which replaced in May 2009. The searches proved
futile and uncovered no notes in either system or any handwritten notes from
2004 on file. As result of the lack of physical evidence, the investigator
also spoke with the Senior Manager of CPP and OAS program delivery within the
Call Centre Directorate at Service Canada and received from her a summary of
the procedures in place in 2004 with respect to the Canada Pension Plan Act
and Regulations. This evidence indicated if a client declared they were in
receipt of a private or provincial disability benefit, the call centre agent
would have been expected to advise that this would not automatically render an Applicant
inadmissible for the CPP disability benefit.
VII.
ANALYSIS
[39]
The essential facts, basic arguments and
submissions in this case are virtually indistinguishable from those in Manning,
above, in all important aspects.
[40]
Manning involved
the case of a doctor who applied for CPP disability benefits, was approved and
received the maximum amount of retroactivity of 15 months in 2005. In that
case Dr. Manning was also seeking greater retroactivity to the date of his
disablement in 1993 because in April 1995 his spouse (Dr. Malaguti-Manning) telephoned
the CPP information line and spoke to ‘a mature woman’ who was said to have
told her there was no point applying for the CPP disability since any amounts
received would have to be repaid to the Applicant’s private insurance company.
[41]
The Minister’s delegate was unable to find any
record of the phone call but did review the materials and training in place at
that time and concluded it was highly unlikely the advice would have been
given.
[42]
In dismissing the application for judicial
review Mandamin, J. found the following, which, with necessary changes for the
facts of this case, I adopt as my own:
[39] Dr. Malaguti-Manning has provided
affidavit evidence that is very general evidence. There was no evidence of the
telephone call; no receiving agent identified; no date of the call; no phone
number called; and no specific details of the advice she received. The evidence,
the telephone agent’s advice, as to why the Applicant did not apply in 1995 for
the disability benefits is not the most definitive although there is some
support in that the information was relied upon since the Applicant’s wife did
not apply for the benefit.
[40] The investigation revealed that
there were no records of calls that long ago. The Minister’s delegate provided
evidence including: the tip sheets; counselling checklist; procedures in place
at that time; and manuals that telephone agents were provided with.
[41] All the evidence the investigator
produced was balanced against the evidence provided by Dr. Malaguti-Manning;
then the Minister must determine on a balance of probabilities whether
erroneous advice was given. The Minister concluded that balance weighed in the
respondent’s favour. The Minister found that it was more likely that no
erroneous advice was given.
[42] I find that the Minister’s
decision is reasonable given that it is one of the justifiable findings based
on the evidence.
[43]
In this case the Applicant asks the Court to
find that the letter created eight years after the events in question, the
allegations therein which are not corroborated in any way, is not only “evidence” it is the only evidence the Court
may consider because the Respondent could not disprove the negative of no
erroneous advice having been given. This is because the Respondent did not have
written records of a conversation with, as counsel for the Applicant put it, “a person who was never asked to identify himself”.
[44]
With respect, I do not accept that the Minister
provided no evidence. In fact the nature and quality of the evidence produced
by the Minister was more thorough, detailed and reliable than that produced by
the Applicant. The Minister’s delegate provided the Applicant with an
opportunity to make further submissions but none were made by him. She reviewed
in detail each of three allegations made by the Applicant. She interviewed two
people with expertise and knowledge of the salient particulars put forward by
the Applicant. She reviewed and considered the relevant written material.
[45]
I find the investigative process engaged in by
the Minister’s delegate was thorough, transparent and complete.
[46]
In coming to her decision, it would not have
been reasonable for the Minister’s delegate to ignore the extensively
documented procedures, the call centre protocols and policies and evidence of
the people with whom she spoke. It would also not be reasonable for her to
ignore the balance of probabilities test which she would have had to do in
order to come to the conclusion that the Applicant’s letter established his
case and there was no evidence from the Minister.
[47]
Applying the test in Lee, above, it was
reasonable for the Minister to conclude that the Applicant did not prove his
version of events was more likely than the Minister’s.
[48]
I find the decision of the Minister’s delegate
was well within the range of possible, acceptable outcomes defensible on the
facts and the law. Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1
S.C.R. 190. Therefore, this application is dismissed.
[49]
The Respondent is not seeking costs. The
Applicant was seeking to recover some of his costs but was not successful in
the application.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The application is dismissed.
2.
No costs are awarded.
“E. Susan Elliott”
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