Leskiw v. Canada (Attorney General), 2003 FCT 582

Date: 20030509

Docket: T-211-01

Citation: 2003 FCT 582

Ottawa, Ontario, this 9^th day of May, 2003

Present:           THE HONOURABLE MADAM JUSTICE SNIDER                                  

BETWEEN:

                                                                    DANNY LESKIW

                                                                                                                                                       Applicant

                                                                              - and -

                                                ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of Ms. T.L. Cameron, made on behalf of the Minister of Human Resources Development Canada ("HRDC"), dated January 9, 2001, in which Ms. Cameron determined that Danny Leskiw (the "Applicant") did not receive erroneous advice from HRDC officials.

Background

[2]                 On May 26, 2000, the Applicant applied for Canada Pension Plan, R.S.C. 1985, c.C-8 ("CPP") retirement benefits. On June 2, 2000, he wrote to HRDC requesting a retroactive payment of benefits to May 1999, a period of one year prior to the date of his application.    In this letter, the Applicant explained that he understood that all applicants could "apply for retroactive benefit of up to a year."

[3]                 The Applicant's application for CPP retirement benefits was approved, with an effective benefits payment date of June 2000. His first payment did not include a retroactive payment.

[4]                 On June 22, 2000, the Applicant wrote to HRDC requesting a reconsideration of his Entitlement with respect to the retroactive payment to May 1999 and commenting on the lack of response to his June 2, 2000 letter. In this letter, the Applicant stated that the HRDC office had informed him that CPP permitted retroactive payments of up to one year prior to the date of application.

[5]                 HRDC reviewed the Applicant's request for a retroactive payment and concluded that the CPP did not permit such a payment to be made to him. On September 15, 2000, Edward J. Scott of the Income Security Programs Branch of HRDC advised the Applicant of the decision denying the retroactive payments and informed him that he could appeal the decision by writing to the Office of the Commissioner of CPP Review Tribunals (the "Review Tribunal").

[6]                 By letter dated December 10, 2000, the Applicant appealed the decision denying the retroactive payments to the Review Tribunal (the "appeal letter"). In this letter, the Applicant claimed, for the first time, that officials from the Mid-Ontario Area Office had advised him that he was entitled to receive benefits retroactive to July 1997, the month after his 60^th birthday. The Applicant did not mention his previous claim of retroactive payments to May 1999 in this letter. On December 14, 2000, that letter was accepted as an appeal to the Review Tribunal under the CPP.

[7]                 The Review Tribunal also forwarded a copy of the appeal letter to HRDC. Ms. Cameron, an Account Analyst with the Income Security Programs Branch of HRDC, reviewed the entire file in order to determine whether it contained any evidence to support the Applicant's claim that he had received incorrect information from HRDC. Based on a number of factors, including the quality and quantity of HRDC staff training and the contradictions in the Applicant's recollection of the advice that he allegedly received from that staff, Ms. Cameron concluded that the Applicant had not received erroneous advice. She advised the Applicant of this decision in a letter dated January 9, 2001.

[8]                 The Applicant makes application for an Order setting aside the decision of Ms. Cameron and directing the Income Security Programs under the CPP to retroactively restore the Applicant's CPP to July 1997.

Issues

[9]                 The issues can be stated as follows:

          1.         Did Ms. Cameron have jurisdiction to consider the request made to the Review Tribunal as a request to consider whether erroneous advice had been given to the Applicant pursuant to section 66?

            2.         Did Ms. Cameron breach the principles of natural justice by not advising the Applicant that she was undertaking a review pursuant to subsection 66(4) of the CPP and not allowing him an opportunity to respond to her concerns?

            3.         Was Ms. Cameron's decision patently unreasonable?

Analysis

[10]            For the reasons that follow, I would dismiss this application.

Issue #1: Did Ms. Cameron have jurisdiction to consider the request made to the Review Tribunal as a request to consider whether erroneous advice had been given to the Applicant pursuant to section 66?

[11]            In the Applicant's submission, since the appeal letter was not a claim of erroneous advice, but was accepted by the Review Tribunal under subsection 82(1) of the CPP, Ms. Cameron's decision had no basis in law under sections 18 and 28 of the Federal Court Act, R.S.C. 1985, c. F-7. As a result, Ms. Cameron acted without jurisdiction and beyond her jurisdiction when she determined that the Applicant had not received erroneous advice

[12]            The Applicant's request for a review of the decision denying him retroactive Canada Pensions benefits was made by letter dated December 10, 2000. That letter was addressed to "The Office of the Commissioner of CPP Review Tribunals". In that letter, he outlines his reasons. One of those reasons is as follows:

On at least two occasions since 1997, I have telephoned the Mid-Ontario Area Office for information as to what retroactive date my Canada Pension benefits would be paid according to my entitlement. On both occasions the official from the Canada Pensions office told me unequivocally that I merely had to indicate as to what date I wanted retroactive payment based on my 60th birthday and to indicate such on my request application

[13]            If the Applicant received this information, as alleged, it was incorrect. The relevant provisions of the CPP are set out in subsection 67(2):

[14]          Subsection 66(4) of the CPP addresses erroneous advice and administrative errors:

[15]            Upon reviewing the record in its entirety, I am satisfied that the following events unfolded. The Applicant's allegation of erroneous advice received from HRDC officials in the appeal was noted by HRDC. Without affecting the rights of the Applicant to his appeal to the Review Tribunal, HRDC, on its own initiative, commenced an internal review under subsection 66(4). The basis of that review was the material filed in respect of the Applicant's claim.

[16]            In my view, Ms. Cameron had the jurisdiction to decide whether the Applicant was denied a benefit under the CPP by reason of erroneous advice. Subsection 66(4) of the CPP does not require that the Applicant request that the Minister investigate his claim of erroneous advice. The advice that the Applicant claimed to have received in the appeal letter was incorrect. As a result, I am of the view that Ms. Cameron was entitled to assess the Applicant's claim in order to determine whether he actually received that advice, even though the Applicant did not request such an assessment or mention "erroneous advice" or subsection 66(4) of the CPP in his letters to HRDC.

Issue #2: Did Ms. Cameron breach the principles of natural justice by not advising the Applicant that she was undertaking a review pursuant to subsection 66(4) of the CPP and not allowing him an opportunity to respond to her concerns?

[17]            The Applicant submits that Ms. Cameron erred by not advising him that she was undertaking this review and by not providing him with an opportunity to make submissions. I do not agree.

[18]            Firstly, the procedure undertaken by Ms. Cameron was not determinative of the Applicant's appeal. Indeed, in her letter to the Applicant, Ms. Cameron advised that

Your formal appeal to the Office of the Commissioner of CPP Review Tribunals is still under review and you will be hearing from them shortly.

[19]            Secondly, if any duty was owed to the Applicant, given the administrative nature of the process undertaken by Ms. Cameron, it would not require a judicial process to be satisfied. The transcript of cross-examination undertaken by the Applicant of Ms. Cameron on this point reveals that the Applicant was advised on the telephone that he could submit more information. The Applicant did not deny that such a telephone call took place. Accordingly, I am satisfied that the Applicant was aware that he could submit further information and that, accordingly, he was afforded procedural fairness.

[20]            Finally, I am of the view that further submissions would not have changed the conclusion that he was not given erroneous advice. This is apparent from the record before me. The Applicant, during the course of this proceeding, did not present any evidence that would lead me to conclude otherwise. Thus, even if there had been a breach of the rules of natural justice, which I do not accept, the result would have been the same.

Issue #3: Was Ms. Cameron's decision patently unreasonable?

[21]            No appeal lies from the decision of the Minister pursuant to subsection 66(4). However, an application for judicial review of that decision may be brought before the Federal Court, Trial Division (Pincombe v. Canada (A.G.), [1995] F.C.J. No. 1320 (C.A.) (QL)). The question before Ms. Cameron, whether there was erroneous advice or an administrative error in the administration of the CPP, was a question of fact within her expertise.

[22]            The standard of review to be applied to the decision of Ms. Cameron in her application of subsection 66(4) of the CPP to the facts before her is one of patent unreasonableness (Villani v. Canada (A.G.), [2001] 1 F.C. 130 (C.A.) (QL); Powell v. Canada (Minister of Human Resources Development), [2000] F.C.J. No. 1008 (C.A.) (QL); Wirachowsky v. Canada, [2000] F.C.J. No. 2094 (C.A.) (QL)).

[23]            Ms. Cameron's conclusion that the Applicant did not receive the erroneous advice was not patently unreasonable. The Applicant did not identify who gave him the allegedly erroneous advice, other than to say that it was two different female client services agents of the HDRC office. In addition, as pointed out by Ms. Cameron in her affidavit, there were contradictions in the Applicant's recollections of the advice that he allegedly received from HDRC. In his letters of June 2, 2000 and June 22, 2000, the Applicant requested retroactive payment from May 1999 onward. In the appeal letter, dated December 10, 2000, the Applicant indicated that he had been told on at least two occasions that he was entitled to a payment retroactive to the month after his 60^th birthday. This was the first time that the Applicant mentioned payment retroactive to July 1997. In his Affidavit, which was not before Ms. Cameron, the Applicant states that he was told he could indicate what date he wanted his retroactive payments to begin and that he could apply for retroactive payments one year back in time. Based on the inconsistencies in his story, it was not patently unreasonable or even unreasonable for Ms. Cameron to conclude that he did not receive erroneous advice from a HDRC official. Moreover, the Applicant appears to be disagreeing with the manner in which Ms. Cameron weighed the evidence before her, which is not sufficient to allow this application for judicial review (Caplan vs. Canada (Minister of Human Resources Development), [1997] F.C.J. No. 1373 (C.A.) (QL).

[24]            Furthermore, it is important to note that paragraph 66(4)(a) of the CPP requires that, as a result of the erroneous advice, the Applicant was denied a benefit which he would have been entitled to under the CPP. In this case, the Applicant was not entitled to retroactive retirement benefits. The Applicant was 62 years old at the time that he applied for CPP retirement benefits. According to subsection 67(2) of the CPP, his benefits are payable from the latest of:

·            the month that he turned 60, in this case, June 1997;

·            the month after he wholly or substantially ceased employment, in this case, June 1992;

·            the month after the application is received, in this case June 2002; and

·            the month chosen by the Applicant in his application, in this case May 1999.

[5]                 As a result, any erroneous advice did not result in the Applicant's loss of the benefit of retroactive payments because he was not entitled to those benefits. Therefore, even if Ms. Cameron did err in her conclusion that no erroneous advice was given, that error would be immaterial because the Applicant is unable to satisfy the requirement of paragraph 66(4)(a) and the Minister would not be obligated to take remedial action in the form of granting him the retroactive payments.

ORDER

THIS COURT ORDERS that:

            1.         This application for judicial review is dismissed.             

   "Judith Snider"                    

JUDGE