Docket: T-461-18
Citation: 2018 FC 959
Ottawa, Ontario, September 27, 2018
PRESENT: The Honourable Mr. Justice O'Reilly
| BETWEEN:
|
| THERESA C NANKA
|
| Applicant
|
| and
|
| THE ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
Ms Theresa Nanka began receiving a Guaranteed Income Supplement in 2012. Service Canada originally calculated her GIS on the basis that she was single. On her tax returns for 2012, 2013, and 2014, she disclosed to the Canada Revenue Agency that she was in a common-law relationship. She assumed, based on information on the Service Canada website, that the CRA would inform Service Canada of her change of status.
[2]
In fact, Service Canada did not find out about the change until 2015. It reviewed Ms Nanka’s circumstances and determined that she had been in a common-law relationship since July 2012 and had received a GIS overpayment of $13,189.02.
[3]
After Service Canada notified Ms Nanka of the overpayment, she requested a reconsideration. Service Canada maintained its original decision.
[4]
Ms Nanka then appealed to the General Division of the Social Security Tribunal. The General Division summarily dismissed her appeal on the basis that it lacked jurisdiction. It found that it could entertain appeals only in respect of decisions to deny or limit benefits, not decisions to forgive or reduce an overpayment of benefits. Only the Minister of Employment and Social Development can forgive or reduce an overpayment, and the Minister’s decision cannot be appealed to the Tribunal.
[5]
Ms Nanka appealed again to the Appeal Division, which upheld the General Division’s decision.
[6]
Ms Nanka now seeks judicial review of the Appeal Division’s decision. She argues that the overpayment she received was entirely the product of an error by Service Canada, that she is completely blameless for it, and that a requirement to repay the surplus would cause her financial hardship.
[7]
While I agree that Ms Nanka reasonably believed that Service Canada would be notified of her change of marital status through her income tax returns, I cannot conclude that the Appeal Division committed any reviewable error when it found that neither the General Division nor the Appeal Division had jurisdiction to deal with Ms Nanka’s appeal. It reasonably dismissed the appeal summarily. I must, therefore, dismiss this application for judicial review.
[8]
The sole issue is whether the Appeal Division reasonably found that the Tribunal lacked jurisdiction and that Ms Nanka’s appeal should be dismissed summarily.
II.
The Statutory Framework
[9]
If a person disputes the Minister’s decision to deny a benefit, or the Minister’s decision about the amount of a benefit, he or she can ask the Minister to reconsider (Old Age Security Act, RSC 1985, c O-9, s 27.1 [OASA]; see Annex for all provisions cited). If the reconsideration is denied, the person can appeal to the Social Security Tribunal (OASA, s 28(1)). The General Division of the SST must summarily dismiss the appeal if it has no reasonable chance of success (Department of Employment and Social Development Act, SC 2005, c 34, s 53(1) [DESDA]). A summary dismissal can be appealed, without leave, to the Appeal Division of the SST (DESDA, ss 53(3), 56(2)). The grounds for appeal include a breach of natural justice, an error of law, and serious errors of fact (DESDA, s 58(1)).
[10]
If a person has received an overpayment of a benefit, the surplus is recoverable as a debt to the Crown (OASA, s 37(2)). However, the Minister may forgive all or any portion of an overpayment if it resulted from an administrative error, or if repayment would cause the person undue hardship (OASA, s 37(4)(c),(d)). The Minister’s decision can be judicially reviewed in this Court (Canada (Minister of Human Resources Development) v Tucker, 2003 FCA 278 at paras 11, 14).
III.
Was the Appeal Division’s Decision Unreasonable?
[11]
Ms Nanka argues that it would be unfair to require her to repay the GIS overpayment because she relied on Service Canada to calculate her benefit based on the information she disclosed to the CRA. According to Service Canada’s website, it reviews claimants’ income tax information to calculate the amount of GIS to which they are entitled.
[12]
It is clear that Ms Nanka is blameless for the overpayment.
[13]
However, the question before me is whether the Appeal Division erred in dismissing Ms Nanka’s appeal. I find that the Appeal Division’s decision was not unreasonable in the circumstances.
[14]
As mentioned, a person can seek a reconsideration of a decision to deny or limit the amount of a benefit. From there, the person can appeal to the General Division and then the Appeal Division of the SST. But Ms Nanka was not contesting a denial of benefits or the amount she was awarded. Her concern related to the requirement to repay the amount she was overpaid. Her only remedy in respect of that issue was to ask the Minister to forgive all or part of the overpayment.
[15]
It follows that there was nothing unreasonable about the Appeal Division’s conclusion that neither the General Division nor the Appeal Division had jurisdiction to deal with Ms Nanka’s appeal and that her appeal should be summarily dismissed. Its decision was the product of a reasonable interpretation of the applicable legislation.
[16]
I note that the Minister can forgive an overpayment even without a specific request from the person who received it. It appears that in Ms Nanka’s case, a decision on whether the Minister will reduce or erase the overpayment remains outstanding.
IV.
Conclusion and Disposition
[17]
The Appeal Division’s conclusion that the Tribunal had no jurisdiction in the circumstances, and that Ms Nanka’s appeal should be summarily dismissed, was not unreasonable in light of the applicable legislation. I must, therefore, dismiss the application for judicial review. There is no order as to costs.
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