Date: 20100513
Docket: A-327-09
Citation: 2010 FCA 122
CORAM: SHARLOW
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
DANIEL KING
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] By order dated August 4,
2009, a judge of the Federal Court dismissed the appellant's motion for an
order that the underlying application for judicial review be certified as a
class proceeding. The motion was dismissed on the ground the pleadings did not
disclose a reasonable cause of action. The reasons for the Court's order are
reported as King v. Canada, 2009 FC 796, [2009] F.C.J. No. 953.
[2] The issue on this appeal is whether the
Judge erred in finding the appellant's pleading did not disclose a reasonable
cause of action. For the reasons that follow, I would dismiss the appeal.
Facts and
Procedural History
[3] The facts and procedural history are
undisputed and fully described in the reasons for the order under appeal. The
following brief summary is sufficient for the purpose of this appeal:
1.
After suffering a workplace injury in May, 1996,
the appellant applied for a disability pension under the Canada Pension Plan,
R.S.C. 1985, c. C-8 (Plan).
2.
The application was denied at all levels,
including the Review Tribunal level, until in November, 2002, the Pension
Appeals Board ordered that the appellant be paid a disability pension retroactive
to February, 1995.
3.
The appellant received $109,869.49, which was
the total of each of the monthly benefit payments he would have received had
the disability benefits been paid from February, 1995. No allowance was
included for interest.
4.
The appellant requested that he be paid
interest, but was advised that it was not departmental policy to pay interest.
5.
The appellant then sought relief under
subsection 66(4) of the Plan. Subsection 66(4) provides:
|
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,
[…]
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.
|
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,
[…]
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.
|
6. This
request for remedial action was denied in July, 2009, on the ground the
Minister of Human Resources and Social Development Canada (Minister) found no
evidence of any administrative error or erroneous advice.
7. The
appellant then commenced, in the Federal Court, an application for judicial
review of the decision denying him a remedy under subsection 66(4) of the Plan.
8.
A
certified tribunal record was filed in that proceeding. The appellant says
that such record disclosed that at both the initial and reconsideration stages
the Minister considered medical information obtained from the Workers’
Compensation Board, without allowing the appellant to review and comment on the
medical information.
9.
During
the judicial review proceeding, the Court stated the following legal question
for determination on a preliminary basis:
Does the decision of the
Pension Appeals Board that the applicant is entitled to a disability pension mean
the initial decision of the minister of Human Resources and Social Development
denying him a disability pension was based on “erroneous advice” within the
meaning of subsection 66(4) of the Canada Pension Plan?
10. While
the stated question was originally answered in the affirmative by the Federal
Court, that decision was reversed by this Court in reasons reported as King
v. Canada (Minister of Human Resources and Social Development), 2009 FCA
105, (2009), 392 N.R. 227. At paragraph 31 of its reasons, this Court
wrote:
I am of the view that "erroneous advice",
as it appears in subsection 66(4) of the CPP, refers to advice given by the
Department of Human Resources and Skills Development to a member of the public,
and not to any advice which, on occasion, may be given to the Minister of her
officials in the course of deciding whether a pension should be awarded.
The CPP is one of the largest social benefit schemes in the country. The
statute and its regulations are complex, and many applicants are not
represented by counsel. As such, department officials sometimes provide summary
information over the phone or in person at local offices concerning eligibility
for benefits, deadlines for filing, and so forth. Where an official gives a
member of the public incorrect information, resulting in the denial of a
benefit, the Minister may decide to provide a remedy. This has been the
situation in all of the previous decisions of this court and the Federal Court
relating to subsection 66(4) (see Pincombe v. Canada (Attorney General) (1995),
189 N.R. 197 (F.C.A.); Leskiw
v. Canada (Attorney General), 233 F.T.R. 182, 2003 FCT 582, aff'd
320 N.R. 175, 2004 FCA 177, leave to appeal denied [2004] S.C.C.A. No. 317;
Cowton v.
Canada (Human Resources Development), 2004 FC 530; Graceffa v. Canada
(Minister of Social Development), 306 F.T.R. 193, 2006 FC
1513). [Emphasis added.]
11. On
the motion to have the application for judicial review certified as a class
proceeding, three causes of action were asserted by the appellant:
(i)
The
cause of action dealt with in the primary question of law.
(ii)
An
alleged misinterpretation by the Minister of the statutory definition of
"disability" found in the Plan.
(iii)
An
alleged breach of procedural fairness. The Minister did not provide the
appellant with all the medical or other information received from the Workers’ Compensation
Board that was before the Minister at both the initial application and
reconsideration stages of the disability claim process.
[4] The
appellant states the latter two "objectionable practices and procedures
constitute both erroneous advice and administrative errors" within the
meaning of subsection 66(4) of the Plan, and so disclose a reasonable cause of
action.
Standard of Review
[5] The
parties agree the alleged errors involve questions of law that are reviewable
on the standard of correctness. I agree.
Application of the
Standard of Review
[6] For
the following reasons, the Judge did not err in deciding the pleading did not
disclose a reasonable cause of action.
[7] Sub-rule
334.16(1)(a) of the Federal Courts Rules, SOR/98-106, requires an
applicant who seeks certification of a class proceeding to demonstrate that the
pleadings disclose a reasonable cause of action. To determine whether the
pleadings demonstrated a reasonable cause of action, the Federal Court applied
the test used when striking out applications for judicial review: is the
alleged cause of action so clearly improper as to be bereft of any possibility
of success?
[8] Turning
to the three asserted causes of action, the Federal Court Judge noted that the
parties had conceded that no valid cause of action existed alleging the
Minister’s decision refusing a disability pension was based on erroneous
advice. This was because this Court's decision on the preliminary question of
law was dispositive of this cause of action. On this appeal no challenge was
made to the correctness of this finding.
[9] The
second asserted cause of action is the alleged error of law touching on the
definition of disability. During the oral argument of this appeal, counsel for
the appellant conceded that such an error of law on the part of the Minister
would not constitute either “erroneous advice” or “administrative error” within
the scope of subsection 66(4) of the Plan. This is dispositive of the second
cause of action.
[10] The
third cause of action is the alleged breach of procedural fairness arising out
of the Minister’s failure to provide the appellant with medical information
obtained from the Workers’ Compensation Board. This is said to be an
administrative error. However, it is not obvious that any such duty to
disclose arose at what appears to be an administrative stage of the
proceeding. Notwithstanding, for the purpose of this appeal I assume, without
deciding, that such a duty existed.
[11] That
said, for subsection 66(4) of the Plan to have any application, the alleged
administrative error must have resulted in the denial of a benefit the
appellant was entitled to. This requires the pleadings to assert a factual
foundation for the allegation the administrative error is what led the Minister
to reach the wrong conclusion about the appellant’s entitlement to remedial
action. However, there is no allegation the failure by the Minister to
disclose documents led to an erroneous conclusion by the Minister. The
appellant does not point to any document or thing in the previously
non-disclosed Workers’ Compensation Board material that is said to be material
to the Minister’s decision under subsection 66(4) of the Plan. The failure to
properly plead a causal connection is fatal to the third cause of action.
Conclusion
[12] For these
reasons, I would dismiss the appeal. Costs were not sought by the respondent.
Therefore, I would not award costs.
“Eleanor
R. Dawson”
“I
agree.
K. Sharlow J.A.”
“I
agree.
Johanne
Trudel J.A.”
Email this Content