Docket: T-1132-03
Citation: 2004 FC 437
BETWEEN:
MINISTER OF HUMAN RESOURCES
DEVELOPMENT
Applicant
- and -
ANN MITCHELL
Respondent
Let the attached certified transcript of my Reasons for Order delivered orally from the Bench at Vancouver, British Columbia, on the 23rd day of March 2004, be filed to comply with section 51 of the Federal Court Act.
(Sgd.) "Eleanor R. Dawson"
Judge
Vancouver, B.C.
March 23, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
(Before the Honourable Madam Justice Dawson)
VANCOUVER, B.C.
March 23, 2004
T-1132-03
BETWEEN:
MINISTER OF HUMAN RESOURCES,
APPLICANT;
AND:
ANNE MITCHELL,
RESPONDENT.
MR. P. DIAR, Appearing for the Applicant;
MS. A. MITCHELL, Appearing on Her Own Behalf.
ALLWEST REPORTING LTD
VANCOUVER B.C. - -
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REASONS FOR JUDGMENT
DAWSON, J.:(Orally)
On June 4th, 2003, the Old Age Security Review Tribunal, which I will refer to as the Review Tribunal, found that Anne Mitchell had received erroneous advice in April of 1997 from an employee of Human Resources Development Canada, which I will refer to as HRDC. That employee was found by the Review Tribunal to have told Miss Mitchell that a Guaranteed Income Supplement, which I will refer to as GIS benefit, could not be paid to any applicant who owned her own home. The Review Tribunal also found that the effect of this erroneous advice was to prevent Miss Mitchell from applying for the GIS benefit until 2002 when she was invited to do so by HRDC as part of a national campaign to identify pensioners who might be entitled to, but were not receiving the benefit.
When Miss Mitchell then applied in 2002 for the benefit her application was successful and she was awarded GIS benefits based upon her 1999 and 2000 incomes. The supplement was awarded effective March 2001 because payment of retroactive GIS benefits could only be made under the legislation for a period of up to eleven months from the date they were applied for.
The Review Tribunal therefore concluded that the consequence of the erroneous advice was to deny Miss Mitchell the GIS benefit she was entitled to for the period from April 1998 to February 2001. April of 1998 was the point in time when Miss Mitchell's income entitled her to the GIS.
On the basis of those findings and conclusions, the Review Tribunal determined that the available and appropriate remedy was under Section 32 of the Old Age Security Act, which I will call the Act. That section provides that:
"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 benefit, or a portion of a benefit, 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 a position that the person would be in under the Act had the erroneous advice not been given or the administrative error not been made."
In the result, it was the decision of the Review Tribunal that the Minister ought to exercise the statutory power given to her in favour of Miss Mitchell.
The Minister of Human Resources Development Canada, who I will call the Minister, has brought this application for judicial review of that decision by the Review Tribunal because the Minister argues that the Review Tribunal had no jurisdiction to review the Minister's exercise of discretion under Section 32 of the Act.
The Minister relies upon the decision of the Federal Court of Appeal in Canada, Minister of Human Resources Development v. Tucker, 2003 FCA 278. Tucker was decided on June 23rd, 2003 just under three weeks after the decision of the Review Tribunal. In Tucker the Federal Court of Appeal reversed the decision of this Court which had found that the Review Tribunal had jurisdiction to review a decision of the Minister made under Section 32 of the Act.
Mr. Justice Décary, writing for the unanimous Court of Appeal, wrote at paragraphs 11 and 12 in Tucker that:
"In my view, the reasoning in Pincombe applies with respect to a decision made under Section 32 of the Act. This same reasoning must also apply to decisions made under paragraph 37(4)(d). Each provision provides a remedy to a person who, due to erroneous advice or administrative error, has received an incorrect payment of benefits. Decisions as to the forgiveness of an overpayment (or the repayment of an underpayment) made as a result of erroneous advice are simply not decisions 'respecting the amount of any benefit that may be paid to that person' within the meaning of subsection 27.1(1). The Act (just like the Plan at the relevant time in Pincombe) provides no other specific right of appeal of such a decision. The Trial Division Judge, therefore, erred in declining to apply Pincombe.
I would therefore allow the appeal on the basis that the Review Tribunal had no jurisdiction to entertain an appeal from the Minister's decision made under paragraph 37(4)(d) not to remit any or all of the overpayments."
The decision of the Federal Court of Appeal is binding upon me and I am unable to distinguish it. It follows that the decision of the Review Tribunal should be set aside on the basis that it had no jurisdiction to grant relief based upon Section 32 of the Act.
The proper remedy to a person denied relief under Section 32 of the Act is to apply directly to this Court for judicial review of the decision of the Minister.
I am not satisfied, however, that it is clear that the Minister has ever purported to make a decision under Section 32 of the Act with respect to Miss Mitchell's situation. When Miss Mitchell was first told of the decision that her application for GIS was approved and that she would receive eleven months of retroactive benefits she was also told, and I quote here from the April 18th, 2002 letter sent to her:
"If you are not satisfied with our decision about your benefit, you may request a reconsideration. To do this, write to us at the address on this letter. This must be done within 90 days of receiving this notice."
This would seem to refer to a request for reconsideration made under Section 27.1 of the Act. I say this because of the reference to "reconsideration" and to the 90-day deadline. No time limit is provided with respect to a decision under Section 32 of the Act, while Section 27.1 does contain a 90-day time deadline.
The response to Miss Mitchell's request for, in her words, "further consideration" was a letter dated June 13, 2002 from HRDC which referred to completing "reconsideration" and which spoke to the maximum period under the Act for retroactive benefits. Significant was the absence of any reference to "erroneous advice" which is the nub of the Section 32 determination. The June 13, 2002 letter told Miss Mitchell she could appeal her decision to the Review Tribunal.
Counsel for the Minister had advised the Court that he will advise those who instruct him of the concern that I have raised and he will recommend that Miss Mitchell be given consideration or reconsideration, as the case may be, under Section 32 of the Act.
Alternatively he, very fairly, advises that he would seek instructions about consenting to an extension of time if Miss Mitchell wishes to challenge the decision of June 13, 2002. This is because the delay is through no fault of Miss Mitchell because the law, in effect, changed after her hearing, before the Review Tribunal which HRDC told her to apply to.
If that becomes necessary, that is for a motion for an extension of time, then the motion should be made and should be referred to me for adjudication because I am familiar with the facts and circumstances and this is consistent with judicial economy.
In all of the circumstances, for the reasons that I have given, an order will issue setting aside the decision of the Review Tribunal on the basis that it had no jurisdiction to grant relief based upon Section 32 of the Act and that is what it purported to do.
The Minister again, in my view, fairly does not seek costs. In the circumstances where the law changed after Miss Mitchell was successful before the Review Tribunal, I'm satisfied that she should receive her out of pocket disbursements for this proceeding which I fix in the amount of fifty dollars ($50.00).
In closing, the counsel for the Minister has asked Miss Mitchell to be in touch with him in the next very short while so that he can communicate her submissions or a position on a Section 32 application, and I encourage Miss Mitchell to do this.
This is my ruling, which will be transcribed by the Court reporter and then certified as my reasons pursuant to the Federal Court Act and they will be distributed to the parties.
Does anyone have any questions about this ruling?
MR. DIAR: No, thank you, My Lady.
THE COURT: Miss Mitchell?
MS. MITCHELL: My Lady, at the beginning you mentioned that when I received -- I'm confused now. In February 2002 when I received the letter suggesting that I may be entitled to more money, I think you say that was from HRDC. That letter, I think, was from the Federal Government after I submitted my tax return.
THE COURT: That may well be. I don't think it's material. The point is you were invited to apply and that's what caused you to apply. But I thank you for drawing that to my attention.
All right, I believe we are concluded today so I'll thank you very much for your submissions.
MR. DIAR: Thank you, My Lady.
(PROCEEDINGS CONCLUDED AT 10:48 A.M.)
I hereby certify that the FOREGOING is a true and accurate transcript of the proceedings herein to the best of my skill and ability.
__________________________________
G. Latowski, Court Reporter
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1132-03
STYLE OF CAUSE: Minister of Human Resources Development v. Anne Mitchell
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 23 March 2004
REASONS FOR Order : The Honourable Madam Justice Dawson
DATED: 23 March 2004
APPEARANCES:
Mr. Prakash Diar APPLICANT
Ms. Anne Mitchell
( on her own behalf ) RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg, Deputy
Attorney General of Canada
Ottawa, Ontario APPLICANT
Ms. Anne Mitchell
( on her own behalf )
Vancouver, British Columbia RESPONDENT
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