Docket: T-726-18
Citation: 2019 FC 527
Ottawa, Ontario, April 25, 2019
PRESENT: The Honourable Madam Justice McVeigh
| BETWEEN:
|
| SHUFEN FU
|
| Applicant
|
| and
|
| ATTORNEY GENERAL OF CANADA
|
| Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review by Shufen Fu [the “Applicant”] in respect of a March 16, 2018 decision [“Decision”] of the Social Security Tribunal [“SST”] of Canada Appeal Division [“Appeal Division”]. The Appeal Division dismissed the Applicant’s appeal from the SST-General Division [“General Division”] decision, the latter of which was released on September 25, 2017.
II.
Background
[2]
In matters related to this application, the Applicant has represented herself at all levels including at the Tax Court of Canada [“TCC”]. The Applicant had a translator as well as her husband at the hearing before me to assist her if necessary. However, during the course of the hearing, it was determined that she was able to express herself in English and if she had difficulty, then the translator assisted her.
[3]
The Applicant, now almost 81 year old, was born on August 19, 1937, in China. On November 5, 1962, the Applicant married Honglie Fang [“Fang”] in China.
[4]
The Applicant told the Court that she is a retired professor of physics who worked at universities in New Mexico, USA, Italy and China.
[5]
The Applicant emigrated and was landed in Canada from Italy in 2002. The Applicant indicated that she flew back and forth from Canada to Italy on a fairly consistent basis. She was in Italy from April 14, 2010 to September 15, 2010; March 27, 2011 to June 1, 2011; and February 18, 2012 to April 15, 2012.
[6]
Fang started receiving Old Age Security payments in 2005 after he met residency requirements and qualified under the terms of Social Security Agreement between Canada and Italy.
[7]
The Applicant received payments from the Italian government from 2003 to 2012. She indicated that the money was a social services income that was based on residency and that she received her last payment in November 2012. The Applicant and her husband applied for Guaranteed Income Support [“GIS”] on December 19, 2011, which was calculated on their 2010 income. The July 31, 2012 GIS application is with regards to the 2011 income.
[8]
In a letter dated May 7, 2013, Service Canada indicated that “… we have approved your application dated December 19, 2011 and July 31, 2012, for the Guaranteed Income Supplement”
for the period effective April 2012. The letter walked the Applicant through what to do if she needed more information on how they made the calculations and what to do if she disagreed.
[9]
On July 2, 2013, the Applicant wrote to Service Canada after speaking to a Service Canada agent on the phone. She confirmed that they had told her that her husband would receive a letter in a few days. In the letter, the Applicant wrote that she would like to know how Service Canada calculated her GIS amount as it was different from what she had calculated. The Applicant noted that she had received her first payment and her husband had not, so she wondered if the explanation of what occurred was in the pending letter. She also went to a Service Canada office in person and they were unable to answer her question and when she then followed up with a call, they could not answer the question either. Therefore, in the July 2, 2013 letter, the Applicant explicitly stated, “Will you be so kind as to let me know how to calculate my GIS amounts for the period from April 2012 to June 2013?”
[10]
On July 9, 2013, the Applicant made a renewal application for her July 2013 to June 2014 benefits, and provided her 2012 income. The Respondent indicated that this renewal application was for the period July 2013 to June 2014. The decision letter on the renewal application was dated July30, 2013 and indicates that Service Canada was writing about her GIS for the current period of July 2012 to June 2014, which was suspended in July 2013. In that decision letter, Service Canada made it clear that they would be reinstating payment of the benefit starting for the period of July 2013. Again Service Canada offered in the letter that if the Applicant had questions, she should contact them.
[11]
On August 22, 2013, the Applicant responded to the July 30, 2013 decision and asked once more how it was calculated. She included information that she had sent an earlier letter on July 2, 2013. That letter included a request for the calculation of the GIS amounts of April 2012 to June 2013, for which she did not yet have an answer. She went on in the letter to say she received social allowance (Assegna Sociale) from the Italian government for the years 2010, 2011 and 2012, and indicates that she does not believe they should be considered pension and included as income in her calculation of GIS allowance. She stated, “For the above reason, we request to reconsider our GIS rates.”
[12]
At issue was the treatment of her Italian government payments. Those funds from the Italian government were characterized by Service Canada as “pension”
when she applied for GIS. The Applicant disagreed as she said they were social service payments. The Applicant indicated that those payments were based on means and needs/income test and not like her husband’s Italian pension (which was from his work).
[13]
Her husband’s Italian pension income is reported as income on his Income tax Returns at line 115. In contrast she said her payments were a social allowance reported on line 145 of her Income Tax Return and is not a pension. Because it is a social allowance her position was the Italian money should not be used to determine her GIS. The determination of GIS is made by both her and her spouse’s income.
[14]
In a November 15, 2013 letter to the Director of Service Canada, the Applicant stated that she was approved for benefits on May 7, 2013 but the amounts from April 2012 to June 2014 are different than what her and her husband had calculated. She then informed Service Canada that they had asked for a reconsideration of that calculation for that time period. The Applicant drew attention to all of the telephone follow ups that she and her husband had made regarding their displeasure with the way the GIS was calculated. She confirmed that after a Service Canada personal told her to contact Italy herself, she asked her daughter in Rome to go to INPS. In the letter to the Director, she also included what occurred at that meeting in Rome.
[15]
On December 19, 2013, the Respondent gave the reconsideration decision. The letter references the Applicant’s August 22, 2013 letter but not the other letters asking for the reconsideration of the Italian pension not to be included as income. In the lengthy letter, Service Canada explains their decision and how it works and erroneously says that “Canada and Italy do not currently have a tax treaty. Therefore, this would not apply to you.”
Service Canada indicated what they calculated her supplement for July 2013 to June 2014 based on her 2012 combined income, and included what they then characterized as an Italian pension. The letter also indicated that the Applicant had a right of appeal to the General Division.
[16]
The General Division referred her matter to the TCC on September 16, 2016, because the a ground of the appeal was related to a source of income and the Old Age Security Act, RSC, 1985, c O-9 [“OAG”] which is the jurisdiction of the TCC The referral to the TCC had no specific time period that the TCC was asked by the General Division to determine how for GIS calculations the General Division was to treat the Italian money.
[17]
A Service Canada officer [“Officer”] wrote a File Summary Notes [“notes”] that made it clear that the Applicant was calling and asking about her reconsideration. The notes indicate that the Applicant took issue concerning the interpretation that her Italian money for 2010, 2011 and 2012 was income that should be considered for her GIS calculation. The Officer noted that the Applicant continued to press for answers, updates and frequently contacted Service Canada.
[18]
The Italian government after it appears several requests under the Agreement on “Social Security between Canada and Italy”
and prodding by the Applicant and her daughter provided Service Canada a print out of the “Assegno Sociale”
funds (2003 to 2012) that she received.
[19]
The Officer’s notes indicate that on December 5, 2013, the Applicant called to ask about her GIS calculation and she was told that they were waiting for confirmation from Italy and that may take months. Then on June 3, 2014, there is a note confirming that Service Canada is waiting from Italy and could be months to confirm that she was no longer receiving Italian pension but would not be included in the 2013 GIS income calculations.
[20]
But contrary to what the notes say Service Canada told the Applicant they then issued a decision dated December 2013 before they had received the information from Italy.
[21]
On February 25, 2014, the Applicant wrote to Service Canada regarding the December 19, 2013 decision she had received from Service Canada. The Applicant set out all of her concerns related to her GIS calculation and tribulations regarding her asking for answers and the inconsistent answers received from Service Canada. Included in the letter was evidence that there was a tax treaty between Canada and Italy, and a chart of telephone conversations she had with Service Canada to document her frustration and the long delays she experienced. The Applicant appealed the December 19, 2013 decision on May 9, 2014.
[22]
The General Division had referred her husband’s file regarding the same issue to the TCC and that hearing was June 22, 2016. Her husband’s TCC decision is important as calculations relating to both husband and wife involve a combined income so the issue regarding her Italian money was applicable to both of them.
[23]
On July 5, 2016, Justice Campbell of the TCC determined that in Mr. Fang’s appeal that the Applicant’s Italian income was in fact social assistance. Justice Campbell them went on to determine how the foreign social assistance is applied in GIS calculations.
[24]
In the meantime the General Division determined that the Applicant’s appeal was out of time but on consent, the matter was allowed to proceed on August 25, 2016.
[25]
On September 13, 2016, the General Division determined that the issue of determining what should be considered as income under the OAG could only be decided by the TCC. The Applicant’s file was referred to the TCC on September 16, 2016 and her appeal was heard on March 15, 2017.
[26]
The Applicant’s materials on April 26, 2017 were submitted to the General Division, the General Division indicated they were not proceeding until they received a decision from the TCC. Included were submissions that dealt with her husband’s TCC decision for the years 2010, 2011 and 2012, which related to their GIS calculations for 2012, 2013, 2013 and 2014. Included were detailed notes of what had occurred after her husband’s TCC hearing, including a letter to her Member of Parliament regarding her dealings with Service Canada. As well, she included correspondence dated February 1, 2017 concerning her Statement of estimated income for the 2012 and 2013 years and her responses dated March 27, 2017 and April 19, 2017.
[27]
In the Applicant’s TCC appeal on March 15, 2017, Justice Boyle agreed with Justice Campbell’s decision and in an Order dated April 24, 2017, Justice Boyle held that the Applicant’s Italian payments were social assistance. This confirmed that the income for the Applicant’s GIS eligibility is $15,950.29 for the 2012 and that there would be no change for the 2010 and 2011 taxation years from the Minister’s calculation.
[28]
On May 2, 2017, the Department of Employment and Social Development Canada [“DESDC”] wrote to the General Division and indicated that after the TCC decisions, the only issues under appeal were resolved, other than the Applicant does not agree how the GIS is being calculated. The SST made an adjustment of the 2012 income as directed by the TCC and DESDC otherwise indicated “…there are no further issues for the SST to resolve.”
[29]
On May 22, 2017, the Applicant wrote to the General Division and clarified her position. She presented her interpretation of the TCC decision regarding her 2010-2012 income that should be used for calculation of her GIS. On July 18, 2017, the Applicant submitted material again regarding the GIS for the periods of April 2012 to June 2013.
[30]
On September 25, 2017, the General Division summarily dismissed the appeal because:
- Under section 53(1) of Department of Employment and Social Development Act, SC 2005, c 34 [“DESDA”], the General Division must summarily dismiss an appeal if satisfied that it has no reasonable chance of success;
- The General Division was without jurisdiction to have the Applicant’s GIS recalculated for the period from April 2012 to June 2013, and is rather limited to the payment period of July 2013 to June 2014. This is because what was under appeal was limited to that period;
- Further, the Applicant’s income issue was resolved by the TCC decisions. If the Applicant decided that she was dissatisfied with this decision, she could appeal that decision to the Federal Court of Appeal; however, the General Division had no jurisdiction to
“make findings as to what constitutes income from a particular source or sources”
;
- The General Division further held that the delay of the Respondent was not reviewable, as the General Division has no jurisdiction to investigate alleged administrative error.
- Finally, the General Division held that an article published on a third-party website, which the Applicant claimed was damaging to their reputation, was not reviewable by the General Division.
[31]
On December 19, 2017, the Applicant appealed as of statutory right to the Appeal Division, arguing that her Italian social allowance should not be included in her income for GIS purposes, that the General Division erroneously considered only her GIS eligibility for July 2013 to June 2014, and that the General Division ignored her submissions of July 18, 2017 in response to the notice of intention to summarily dismiss.
[32]
On March 16, 2018, the Appeal Division dismissed the appeal. The Appeal Division found that:
- No leave to appeal was necessary in this case, as appeal brought under section 53(3) of DESDA have an appeal of right when dealing with a summary dismissal from the General Division;
- An oral hearing was unnecessary given that there are no gaps in the file, no need for clarification, and that the form of the hearing respects the legislative intent to proceed expeditiously;
- the General Division had not erred in limiting the scope of its inquiry to the period of July 2013 to June 2014;
- the General Division had made no error when it determined that the TCC had definitively resolved the issue of whether the Italian social allowance should be included in her income for GIS purposes. The Applicant essentially re-argued her case around income in front of the Appeal Division, despite the clear ruling put forward by the TCC;
- The General Division had not ignored her submissions; and
- The General Division had applied the proper test when it summarily dismissed the appeal.
[33]
On April 19, 2018, the Applicant applied for judicial review of the Appeal Division Decision.
[34]
The Applicant does not accept the lower board’s findings, or any other limits, and with blind passion and is dedicated to advancing her position regarding the calculation of her GIS for the time period of April 2012 to June 2014.
[35]
For the reasons below, I will grant this application.
A.
Style of Cause
[36]
The Style of Cause should be amended by replacing the Minister of Employment and Social Development as the responding party with the Attorney General of Canada. Pursuant to Rule 303(1) of the Federal Court Rules, SOR/98-106 [“FCR”], the only properly responding party named should be the Attorney General of Canada.
III.
Issue
[37]
The issue is:
- Did the Appeal Division made a reasonable finding?
IV.
IV Relevant Provisions
[38]
Relevant provision attached as Annex A.
V.
Standard of Review
[39]
In Garvey v Canada (Attorney General), 2018 FCA 118, Justice Gleason wrote for the Court in examining the case of an applicant seeking to set aside the decision of the Appeal Division. Justice Gleason affirmed that the Appeal Division’s Decision may be set aside only if it is unreasonable, “that being the applicable standard of review to be applied by this Court as was held in Atkinson v. Canada (Attorney General), 2014 FCA 187 (CanLII) at paras. 24-32”
. The decision before the Court is whether the Appeal Division was reasonable in their determination. This is not a de novo appeal.
VI.
Analysis
A.
Did the Appeal Division made a reasonable finding?
(1)
Applicant’s Position
[40]
The Applicant has two main arguments. This first argument is related to the fact that she had always sought to have from April 2012 to June 2013 GIS calculations reviewed. These time periods were in the first application and decision dated May 7, 2013 (April 2012 to June 2013) as well as the second application and decision dated July 30, 2013 (July 2013 to June 2014). The Applicant contends that the General Division and Appeal Division were in error when they considered their jurisdiction limited to reviewing the time period of July 2013 to June 2014 that the General Division stated that this was the only time period that was asked to be reconsidered.
[41]
The Applicant submits that the TCC made the determination for April 2012 to June 2014 (years income 2010, 2011 and 2012) and that is the time period that she has always sought to be reviewed.
[42]
Her second argument is that she agrees with the TCC ruling. She does not disagree with the TCC regarding the characterization of her Italian money being a social allowance so she had no reason to appeal it to the FCA. What she does not agree with is Service Canada’s interpretation of that Judgment. This, for the Applicant, is the heart of her dispute with Service Canada over their calculation of her GIS.
[43]
I am granting the application on the first ground that the General Division should have reviewed the whole time period. I find that the applicant had asked repeatedly for the entire time period to be reviewed so the General Division did have the jurisdiction to do so. The Certified Tribunal Record [“CTR”] provides evidence to support that the Applicant had always sought a review of all the time periods.
[44]
I find the General Division was unreasonable limiting their review to one time period given that the Applicant had the exact same issue with all the time periods and sought a review of all the time periods.
[45]
Therefore, because the General Division had jurisdiction to do so, the Appeal Division decision is unreasonable. The Appeal Division was unreasonable when they upheld the General Division decision that the General Division only had jurisdiction to review the time period of July 2013 to June 2014.
[46]
The TCC’s reasons from Justice Campbell allude to the some of the difficulties that incurred .These same difficulties are born out in the recitation of the facts in this decision. In paragraph 8 of the decision, Justice Campbell noted:
…..Ms. Fu and Mr. Fang were forthright, open a, honest witnesses, who have had to deal with complex legislation and some considerable delays from the Government, as well as incorrect information from the Government. For example, the Government in one correspondence suggested Mr. Fang could receive no help from a tax treaty as there was no tax treaty between Canada and Italy. There is in fact such a tax treaty. I can certainly appreciate Mr. Fang and Ms. Fu’s frustration, yet they remained respectful and courteous in their dealings with the Government, and certainly were with this Court. They are to be commended for their behaviour in light of the runaround from the government.
[47]
As is the case with most issues of hindsight, after the passage of time and all of the documents being in the same place at the same time, it is clear that the Applicant had wanted the entire time period to be reconsidered. Indeed, she repeatedly asked of Service Canada to explain their position to her in regards to the entire time period.
[48]
Support for this finding is found when the General Division referred the matter to the TCC. In their letter, the General Division asked the Court to make the determination for the Income Tax years related to the 2010, 2011 and 2012. The TCC made the determination for all those years, and not just the 2012 tax year which would relate to the calculation of the GIS for the period of July 2013 to June 2014. The tax years that the TCC referred to would have covered the period in the first application and the second application, (which were both granted in the May 7, 2013 letter) for the time period April 2012 to June 2013. Thus, it is clear that the TCC’s determination of the relevant time period is, by itself, enough to make clear that the time period was not limited as suggested in the Appeal Division Decision
[49]
Further, in a July 2, 2013 letter, the Applicant asked Service Canada in writing after attending the office to take issue with how they calculated her GIS from April 2012 to June 2013, and with the May 7, 2013 letter. Once she received the July 30, 2013 letter regarding her GIS period of July 2013 to June 2014, the Applicant wrote again asking for a reconsideration of her GIS calculations. In that letter she makes note only of the July 30, 2012 letter initially, but then goes on to mention the July 2, 2013 letter which asked about the time period of April 2012 to June 2013.
[50]
On November 15, 2013, the Applicant in a letter to the Director of Service Canada specifically mentioned the calculations found in the May 7, 2013 letter and then spells out the time period of April 2012 to June 2014 as is what is under reconsideration:
But the amounts of our supplement, from the effective date of April 2012 to June 2014 are quite different from the amounts we estimated. We sent a letter to Mr[s]. Melanie Hodgson and a letter to Mr. S. Mohit requisition for reconsideration. We explained the causes of the difference in detail in our letter to Mr. S Mohit (see Appendix I). We did not receive any response up to date. We called the office several times and the agents who answered the phone always asked us to call back alter a couple weeks. We could not reach the officer in charge of our case at all.
On October 31, we called the office for the fourth time. The information we got from the agent who answered the phone is completely unexpected: the office is waiting for an answer from Italy that whether the money Shufen received from Italy is allowance (…)
[51]
When the reconsideration decision was given on December 19, 2013, after already receiving the November 15, 2013 correspondence (above at para 14), Service Canada only refers to an August 22, 2013 correspondence, and not the May 7, 2013 letter that the Applicant mentions. The reconsideration decision then proceeds to discuss how there is no tax treaty with Italy and how they calculated the GIS from July 2013 to June 2014. The reconsideration decision is general enough that it could be mistaken that they only used that particular time period as an example. Alternatively, they just missed they had been asked to reconsider the entire time period at issue as the exact same mechanics of the calculation were at issue, as it all related to the Italian social allowance.
[52]
Then in follow up correspondence dated February 25, 2014, the Applicant was clear that she was seeking an explanation for the entire period.
[53]
The General Division is of course correct that the claimant must file an appeal under section 52 of the DESDA after reconsideration. But the General Division erred in not assessing the reconsideration error of only reviewing one time period. Curiously, the General Division correctly asked the TCC to do all the tax years for the entire time period.
[54]
After having the TCC decision for the entire time period it was unreasonable for the General Division to revert to just one time period. The Applicant after appearing in the TCC continued on throughout the remaining process believing she was having the entire period reviewed and her correspondence and subsequent applications confirm this.
[55]
In a perfect world of course the Applicant should have at the reconsideration stage specifically brought the error to the General Division and Appeal Division’s attention. However, given that she soldiered on respectfully thinking the entire period was being dealt with because that is what she had requested in writing and orally as well as before the TCC, I have no reason not to believe that she was diligent as can be expected. As I have said before, this is a confusing file, and what is now obvious with a CTR may not have been at the time. At no time do I find any malice on the part of any of the respondent’s officials.
[56]
I think that the transparency of the process is essential, especially when it is entirely possible that the majority of people that they deal with are self-represented. Reasonableness requires that the decision must exhibit justification, transparency and intelligibility within the decision making process and also the decision must be within the range of possible, acceptable outcomes, defensible in fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 [“Dunsmuir”]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12). This decision did not meet the Dunsmuir test.
[57]
I am sending this matter back to be redetermined by a different decision maker on that issue alone. Further or updated submissions, if necessary, will be allowed according to the tribunal’s instructions.
[58]
Thus, I will not be dealing with any of the Applicant’s other arguments regarding the interpretation of the TCC decision and the calculation of her GIS payments.
VII.
Costs
[59]
The Applicant represented herself and though that does not preclude an order of costs in this situation I will not award costs to her. Although I have granted the application, I do not find that the Respondent was anything other than gracious and patient in advancing their legal arguments. The tribunals as well were dealing with a self-represented person with language barriers that filed copious amounts of documents over the years making it difficult for the tribunal not to miss what now in hindsight seems obvious. As such, no costs will be awarded.
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