Docket: T-293-16
Citation:
2016 FC 1123
Ottawa, Ontario, October 7, 2016
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
SALVATORE
CONSIGLIO
|
|
Applicant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Salvatore Consiglio applied for Canada
Pension Plan disability benefits in 1991. At that time, he had three small
children. His application for disability benefits was subsequently approved,
and Disabled Contributor’s Child Benefits (DCCB) were also approved for Mr. Consiglio’s
children.
[2]
Mr. Consiglio’s wife gave birth to a fourth
child, Niki, on November 22, 1993. Mr. Consiglio did not apply for
benefits for Niki until 2011, explaining in his application that he was unaware
that he needed to make a further application for DCCB benefits, should he have
another child. Mr. Consiglio also sought the retroactive payment of
benefits for Niki in his application.
[3]
Mr. Consiglio’s application for DCCB
benefits for Niki was approved, and he was provided with 11 months of retroactive
DCCB benefits for her, which was the maximum permitted under the legislation. Mr. Consiglio’s
subsequent attempts to challenge this decision before a Review Tribunal, the
Pension Appeal Board and this Court were all unsuccessful.
[4]
Mr. Consiglio also requested that the
Minister of Employment and Social Development Canada undertake an investigation
in order to determine whether the denial of DCCB benefits for Niki was due to an
administrative error or erroneous advice on the part of Employment and Social
Development Canada. A Minister’s delegate subsequently determined that no
erroneous advice or administrative error had been made that resulted in Mr. Consiglio
being denied the additional DCCB benefits for Niki.
[5]
Mr. Consiglio sought judicial review of the
Minister’s delegate’s decision. His application was granted on consent. The
matter was then remitted to a different Minister’s delegate to reassess Mr. Consiglio’s
allegations of erroneous advice or administrative error.
[6]
A second Minister’s delegate also found that Mr. Consiglio
had failed to establish that he had suffered a loss of benefits by reason of
erroneous advice or an administrative error on the part of Employment and
Social Development Canada. By this application for judicial review, Mr. Consiglio
seeks to challenge the second Minister’s delegate’s decision.
[7]
While I am very sympathetic to the position in
which Mr. Consiglio finds himself, as will be explained below, he has not
persuaded me that the decision of the Minister’s delegate was unreasonable.
Consequently, there is no basis on which I can intervene in the decision, and Mr. Consiglio’s
application for judicial review will accordingly be dismissed.
I.
The Legislative Regime
[8]
Mr. Consiglio’s application for disability
benefits is governed by the provisions of the Canada Pension Plan,
R.S.C. 1985, c. C-8. Subsection 74(2) of the Plan says that when an application
for benefits is approved, retroactive benefits cannot be approved for a period
that is “earlier than the twelfth month preceding the month
following the month in which the application was received”. This is why Mr. Consiglio
only received retroactive benefits for Niki going back 11 months before the
date of his 2011 application for benefits.
[9]
However, in accordance with the provisions of
subsection 66(4) of the Plan, the Minister or her delegate had the power to
award additional retroactive benefits for the full period requested by Mr. Consiglio,
if he could establish that he was denied a benefit to which he would otherwise have
been entitled because of erroneous advice or an administrative error in the
administration of the Plan. However, as noted, the second Minister’s delegate
determined that Mr. Consiglio had failed to establish that there had been
any such erroneous advice or administrative error made by Employment and Social
Development Canada in relation to his application for benefits for Niki.
II.
The Standard of Review
[10]
In a case such as this, it is not my role to
decide whether I agree with the decision of the Minister’s delegate, or whether
I would have come to the same decision as did the Minister’s delegate. My role
is to determine whether the Minister’s delegate’s decision was reasonable in
light of the evidence that was in the record: Canada (Attorney General) v.
Torrance, 2013 FCA 227 at para. 34, [2013] F.C.J. No. 1049.
III.
Why the Minister’s Delegate’s Decision was
Reasonable
[11]
Mr. Consiglio says that when he was first
approved for Canada Pension Plan disability benefits in 1991, he
received a notice advising him of the total monthly amount of the benefits that
he would be receiving. He did not, however, receive a breakdown indicating what
proportion of the monthly amount he was receiving represented disability
benefits for him, and what amounts were DCCB benefits for his children. Nor did
Mr. Consiglio receive a call from Employment and Social Development Canada
explaining how his monthly benefits had been calculated.
[12]
Mr. Consiglio submits that his evidence on
this point is confirmed by an internal email from Employment and Social Development
Canada indicating that breakdowns of monthly benefits were not being provided to
recipients in 1991. The Minister submits that the information in the emails in
question pre-dated the investigation into Mr. Consiglio’s subsection 66(4)
application, and is not correct. According to the Minister, the Notice of
Entitlement that was provided to recipients in 1991 did contain a breakdown of
benefits, and would have identified each of Mr. Consiglio’s recipient
children by name.
[13]
Regardless of which version of events is
accurate, Mr. Consiglio does not deny that he received an application kit
when he first applied for disability benefits. The Minister has produced the
kit that was in use at the time of Mr. Consiglio’s original application
for benefits. This document clearly explains that the dependent children of a
disabled individual are entitled to benefits provided that the children are
under the age of 18, or are between 18 and 25, as long as they are in full-time
attendance at a school or university. The document further makes it clear that
it is necessary to make a written application for such benefits.
[14]
While not disputing that he received such a kit,
Mr. Consiglio says that by the time his application for benefits was
approved a year later, he had forgotten what it said. He further insists that
he did not understand that part of the monthly payment he started receiving in
1991 was made up of DCCB benefits for his children.
[15]
Mr. Consiglio’s evidence as to his
understanding of the make-up of his benefits for his children has not, however,
been consistent. When the problem with Niki’s benefits surfaced in 2011, Mr. Consiglio
initially stated that he had understood that all four of his children
had been receiving benefits. More recently, Mr. Consiglio has submitted
that he did not understand that the monthly benefit payment that he had
received included a component representing DCCB benefits for any of his
children.
[16]
Mr. Consiglio acknowledges that his
benefits were reduced in 2004, when his oldest child turned 18, and that his
benefits were reduced again in 2006 and in 2009 as his second and third
children each reached the age of majority. The first time that this happened, Mr. Consiglio
says that he contacted Employment and Social Development Canada seeking an
explanation as to why his benefits had been reduced. He says that he was told
that because his oldest child had turned 18, DCCB benefits would henceforth be
paid directly to the child.
[17]
Despite receiving this explanation, Mr. Consiglio
says that he “just didn’t get it” that he had
been receiving DCCB benefits for his children. In each of these cases,
moreover, Mr. Consiglio was able to have benefits continue, payable
directly to his children, by providing evidence from a scholastic institution
confirming that the children were still in school.
[18]
In 2011, just before Niki turned 18, Mr. Consiglio
contacted Service Canada in order to obtain a school registration form for her
so that she could continue to receive DCCB benefits. It was only then that he
was told that no application for DCCB benefits had ever been made for Niki.
[19]
Mr. Consiglio acknowledges that the
Minister could have had no way of knowing that he had had a fourth child if he
did not advise the Minister accordingly. Mr. Consiglio submits, however, that
he did not understand that he was receiving DCCB benefits for his children, nor
was he told that he had to update the Minister if his family circumstances
changed.
[20]
To be entitled to relief under subsection 66(4)
of the Plan, the burden was on Mr. Consiglio to establish on a balance of
probabilities that he had been given erroneous advice, or that there had been
an error in the administration of the Plan: Manning v. Canada (Human
Resources Development), 2009 FC 523 at para. 37, [2009] F.C.J. No. 646, citing
Graceffa v. Canada (Minister of Social Development), 2006 FC 1513,
[2006] 306 F.T.R. 193.
[21]
The Federal Court of Appeal discussed the
meaning of the term “erroneous advice” in King
v. Canada (Attorney General), 2009 FCA 105 at para. 31, [2009] F.C.J. No.
384. There, the Court stated that the term “refers to
advice given by the Department of Human Resources and Skills Development to a
member of the public”. The Court went on to observe that where an
official gives a member of the public incorrect information which results in
the denial of a benefit, the Minister may decide to provide a remedy.
[22]
Mr. Consiglio does not suggest that there
was an error in the administration of the Plan. Nor does he suggest that he was
ever provided with erroneous advice. What he complains about is not receiving sufficient
advice. That is not, however, a basis for relief under subsection 66(4) of the
Plan. Consequently, it cannot be said that the decision of the Minister’s
delegate denying relief to Mr. Consiglio was unreasonable.
[23]
Mr. Consiglio is emphatic that he did not
know that he had to apply for benefits for Niki. He points out that, as a
disabled man raising four children, he would have every reason to do so, had he
known that he was entitled to additional benefits for Niki. As he put it, every
bit of money would have helped.
[24]
I accept that Mr. Consiglio honestly did
not realize when Niki was born that he had to apply for DCCB benefits for her.
Unfortunately, as was noted earlier, his honest but mistaken understanding of the
benefits process does not entitle him to relief under subsection 66(4) of the
Plan.
[25]
The case law has established that there is no
legal obligation on the part of Employment and Social Development Canada to
inform individuals of their entitlement to a benefit. Rather, the Plan puts the
onus on applicants to apply for benefits. There is, moreover, no obligation on Employment
and Social Development Canada to remind benefit recipients of their obligation
to inform the Department of any changes to their status, such as the birth of a
child: see, for example, Lee v. Canada (Attorney General), 2011 FC 689
at paras. 72-73, [2011] F.C.J. No. 889.
IV.
Conclusion
[26]
As was noted earlier, I am very sympathetic to Mr. Consiglio’s
situation. It could not have been easy raising four children on a disability
pension, and the lives of Mr. Consiglio and his family could, no doubt,
have been made a little easier, had Mr. Consiglio applied for DCCB
benefits for Niki in a timely fashion. I also accept that Mr. Consiglio
honestly did not understand that he was required to apply for DCCB benefits for
Niki following her birth in 1993.
[27]
That said, Mr. Consiglio has not
established that he was provided with erroneous advice by anyone at Employment
and Social Development Canada or Service Canada. Consequently, he has not
demonstrated that the decision of the Minister’s delegate refusing him relief
under subsection 66(4) of the Canada Pension Plan was unreasonable.
[28]
Consequently, Mr. Consiglio’s application
for judicial review is dismissed. The respondent does not seek her costs, and
none are awarded.
Email this Content