Burke – Federal Court of Appeal reverses an administrative tribunal decision rather than referring it back for reconsideration

In 2017, the Minister of Employment and Social Development determined that Ms. Burke had been receiving old age security benefits since 1998 on the basis of a false representation that she had been a resident of Canada for more than 10 years, and asked her to repay over $115,000 in benefits.

After finding that, having regard to the text, context and purpose of the Old Age Security Act, the Appeals Division had unreasonably found that the Minister lacked the statutory authority to require the repayment of the benefits, Mactavish JA took the unusual step of making a final determination (i.e., effectively declaring the benefits to be repayable) rather than remitting the matter for redetermination by the administrative tribunal. In this regard, she referred to the statement in Vavilov as to the desirability of avoiding an “endless merry-go-round of judicial reviews and subsequent reconsiderations,” noted that the facts were not in dispute and also stated that “other factors identified … [in] Vavilov such as concerns about delay, fairness to the parties, costs to the parties and the efficient use of public resources, support a finding that the matter should not be remitted to the Appeal Division for redetermination.”

Neal Armstrong. Summary of Canada (Attorney General) v. Burke, 2022 FCA 44 under Federal Courts Act, s. 52(c)(i) and Statutory Interpretation – Absurdities.