Date: 20020430
Docket: T-1711-00
Neutral citation: 2002 FCT 492
Ottawa, Ontario, this 30th day of April, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
- and -
BERYL TUCKER
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of the Review Tribunal under the Old Age Security Act, R.S.C. 1985, c. O-9, dated August 15, 2000, wherein the respondent's appeal of the applicant's decision was allowed.
[2] The applicant seeks an order setting aside the decision of the Review tribunal.
Background
[3] The applicant, Minister of Human Resources Development, is the Minister responsible for administering, inter alia, the widowed spouse's allowance.
[4] The respondent, Beryl Tucker, is an individual entitled to claim benefits under the widowed spouse's allowance.
[5] Having attained the age of sixty years, the respondent applied for the widowed spouse's allowance. She listed as her income for the 1995 taxation year as the total of $7,806.44. The application was subsequently accepted and the respondent began receiving allowance cheques from the applicant. A discrepancy was later revealed when the respondent's income was verified against the income reported on her 1995 tax return, which indicated that the respondent's total income for 1995 was $11,917.44. The respondent had not listed on her application the income of $4,111.00 received as survivorship pension entitlements from the provincial government.
[6] By letter dated December 23, 1996, the respondent was informed by the applicant that she had been overpaid the amount of $1,368.00, resulting from the difference in the income reported on her application and her actual income.
[7] By letter dated January 7, 1997, the respondent appealed the decision of the applicant (initiating a ministerial reconsideration) on the grounds that the overpayment was a result of the wrong information being provided by the applicant's office. The respondent stated that she had been told by an employee of the applicant that the income she received from the provincial government need not be included as income on her widowed spouse's allowance application. The respondent requested that the overpayment be forgiven.
[8] By letter dated July 28, 1997, the respondent was informed that the applicant had found no evidence that erroneous advice had been given. The respondent was advised that effective September, 1997, her widowed spouse's allowance cheques would be reduced by $50.00 per month to refund the overpayment.
[9] The respondent was dissatisfied with the decision and requested a reconsideration. The applicant reconsidered the decision pursuant to section 27.1 of the Old Age Security Act, supra and came to the same result as the original decision.
[10] By letter dated September 9, 1997, the respondent applied to the Office of Commissioner of Review Tribunals for a hearing to appeal the decision of the applicant.
[11] The Review Tribunal found that the respondent received erroneous advice from an employee of the applicant. The Review Tribunal found that the respondent relied on the erroneous advice to her detriment. The Review Tribunal found that they had jurisdiction to review a reconsideration decision of the Minister where the original decision was made pursuant to section 32 or subsection 37(4)(d) of the Old Age Security Act, supra. The Review Tribunal held that any alleged overpayment should be forgiven.
[12] This is the judicial review of the Review Tribunal's decision.
Applicant's Submissions
[13] The applicant submits that there was no right of appeal to the Review Tribunal.
[14] The applicant submits that the powers granted to the Minister in section 32 and subsection 37(4) of the Old Age Security Act, supra are discretionary in nature. The applicant submits that there is no statutory right in the Old Age Security Act, supra that permits an appeal to be brought to a Review Tribunal for decisions of the Minister made under these sections.
[15] The applicant submits that section 32 contains two conditions: (1) the Minister is satisfied that there was erroneous advice given or an administrative error; and (2) the Minister is satisfied that as a result of this error, an individual has been denied a benefit or portion of a benefit to which that person would have been entitled under this Act. The applicant submits that the second condition cannot have been met as the respondent was not denied a benefit or a portion of a benefit to which she would have been entitled.
[16] The applicant submits that section 32 deals with the issue of a total or partial loss of a benefit as a result of an administrative error. The applicant submits that subsection 37(4)(d) relates specifically to the issue where an amount in excess of the amount of benefit is paid due to erroneous advice or an administrative error.
[17] The applicant submits that subsection 27.1(1) is only concerned with questions pertaining directly to entitlement and quantum of benefit and not erroneous advice or administrative error, which are distinct and separate issues. The applicant submits that there is no provision in the Old Age Security Act, supra or the Canada Pension Plan, R.S.C. 1985, c. C-8, as amended, that provides for review of the Minister's discretion to grant relief with respect to an administrative error or erroneous advice.
[18] The applicant submits that section 32 and paragraph 37(4)(d) of the Old Age Security Act, supra are parallel with subsection 66(4) and paragraph 66(3)(d) of the Canada Pension Plan, supra. The applicant submits that the Federal Court of Appeal in Pincombe v. Canada (Attorney General) [1995] F.C.J. No. 1320 (QL) held that a review tribunal has no jurisdiction to review a decision taken under subsection 66(4) of the Canada Pension Plan, supra.
Respondent's Submissions
[19] The respondent is self-represented and by agreement, her daughter made representations on her behalf.
[20] The respondent submitted that she did what she was told to do by the Department officials.
[21] Issues
1. Did the Review tribunal err in law in concluding that a Review tribunal established under section 82 of the Canada Pension Plan, supra and section 28 of the Old Age Security Act, supra has jurisdiction to review a decision of the Minister made pursuant to section 32 of the Old Age Security Act, supra?
2. Did the Review Tribunal err in law in concluding that a Review Tribunal established under section 82 of the Canada Pension Plan, supra and section 28 of the Old Age Security Act, supra has jurisdiction to review a decision of the Minister made pursuant to subsection 37(4)(d) of the Old Age Security Act, supra?
3. Did the Review Tribunal act without jurisdiction, act beyond jurisdiction, or refuse to exercise its jurisdiction in reversing the decision of the Minister taken in accordance with subsection 37(4)(d) of the Old Age Security Act, supra?
Relevant Statutory Provisions and Regulations
[22] The relevant sections of the Old Age Security Act, supra state:
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27.1 (1) A person who is dissatisfied with a decision or determination made under this Act that no benefit may be paid to that person, or respecting the amount of any benefit that may be paid to that person, may, within ninety days after the day on which the person is notified in the prescribed manner of the decision or determination, or within such longer period as the Minister may either before or after the expiration of those ninety days allow, make a request to the Minister in the prescribed form and manner for a reconsideration of that decision or determination.
(2) The Minister shall, without delay after receiving a request referred to in subsection (1), reconsider the decision or determination, as the case may be, and may confirm or vary it and may approve payment of a benefit, determine the amount of a benefit or determine that no benefit is payable and shall without delay notify the person who made the request in writing of the Minister's decision and of the reasons for the decision.
28. (1) A person who makes a request under subsection 27.1(1) and who is dissatisfied with the decision of the Minister in respect of the request, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal under subsection 82(1) of the Canada Pension Plan.
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27.1 (1) La personne qui se croit lésée par une décision de refus ou de liquidation de la prestation prise en application de la présente loi peut, dans les quatre-vingt-dix jours suivant la notification de la décision, selon les modalités réglementaires, ou dans le délai plus long que le ministre peut accorder avant ou après l'expiration du délai de quatre-vingt-dix jours, demander au ministre, selon les modalités réglementaires, de réviser sa décision.
(2) Le ministre étudie les demandes dès leur réception; il peut confirmer ou modifier sa décision soit en agréant le versement de la prestation ou en la liquidant, soit en décidant qu'il n'y a pas lieu de verser la prestation. Sans délai, il notifie sa décision et ses motifs.
28. (1) L'auteur de la demande prévue au paragraphe 27.1(1) qui se croit lésé par la décision révisée du ministre -- ou, sous réserve des règlements, quiconque pour son compte -- peut appeler de la décision devant un tribunal de révision constitué en application du paragraphe 82(1) du Régime de pensions du Canada.
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28.(2) Where, on an appeal to a Review Tribunal, it is a ground of the appeal that the decision made by the Minister as to the income or income from a particular source or sources of an applicant or beneficiary or of the spouse or common-law partner of the applicant or beneficiary was incorrectly made, the appeal on that ground shall, in accordance with the regulations, be referred for decision to the Tax Court of Canada, whose decision, subject only to variation by that Court in accordance with any decision on an appeal under the Tax Court of Canada Act relevant to the appeal to the Review Tribunal, is final and binding for all purposes of the appeal to the Review Tribunal except in accordance with the Federal Court Act.
32. 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 the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made.
37.(4) Notwithstanding subsections (1), (2) and (3), where a person has received or obtained a benefit payment to which that person is not entitled or a benefit payment in excess of the amount of the benefit payment to which that person is entitled and the Minister is satisfied that
(a) the amount or excess of the benefit payment cannot be collected within the reasonably foreseeable future,
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(2) Lorsque l'appelant prétend que la décision du ministre touchant son revenu ou celui de son époux ou conjoint de fait, ou le revenu tiré d'une ou de plusieurs sources particulières, est mal fondée, l'appel est, conformément aux règlements, renvoyé pour décision devant la Cour canadienne de l'impôt. La décision de la Cour est, sous la seule réserve des modifications que celle-ci pourrait y apporter pour l'harmoniser avec une autre décision rendue aux termes de la Loi sur la Cour canadienne de l'impôt sur un appel pertinent à celui interjeté aux termes de la présente loi devant un tribunal de révision, définitive et obligatoire et ne peut faire l'objet que d'un recours prévu par la Loi sur la Cour fédérale.
32. S'il est convaincu qu'une personne s'est vu refuser tout ou partie d'une prestation à laquelle elle avait droit par suite d'un avis erroné ou d'une erreur administrative survenus dans le cadre de la présente loi, le ministre prend les mesures qu'il juge de nature à replacer l'intéressé dans la situation où il serait s'il n'y avait pas eu faute de l'administration.
37.(4) Malgré les paragraphes (1), (2) et (3), le ministre peut, sauf dans les cas où le débiteur a été condamné, aux termes d'une disposition de la présente loi ou du Code criminel, pour avoir obtenu la prestation illégalement, faire remise de tout ou partie des montants versés indûment ou en excédent, s'il est convaincu_:
a) soit que la créance ne pourra être recouvrée dans un avenir suffisamment rapproché;
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37.(4)(b) the administrative costs of collecting the amount or excess of the benefit payment are likely to equal or exceed the amount to be collected,
(c) repayment of the amount or excess of the benefit payment would cause undue hardship to the debtor, or
(d) the amount or excess of the benefit payment is the result of erroneous advice or administrative error in the administration of this Act,
the Minister may, unless that person has been convicted of an offence under any provision of this Act or of the Criminal Code in connection with the obtaining of the benefit payment, remit all or any portion of the amount or excess of the benefit payment.
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37.(4)b) soit que les frais de recouvrement risquent d'être au moins aussi élevés que le montant de la créance;
c) soit que le remboursement causera un préjudice injustifié au débiteur;
d) soit que la créance résulte d'un avis erroné ou d'une erreur administrative survenus dans le cadre de l'application de la présente loi.
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[23] The relevant sections of the Canada Pension Plan, supra state:
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82. (1) A party who is dissatisfied with a decision of the Minister made under section 81 or subsection 84(2), or a person who is dissatisfied with a decision of the Minister made under subsection 27.1(2) of the Old Age Security Act, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal in writing within 90 days, or any longer period that the Commissioner of Review Tribunals may, either before or after the expiration of those 90 days, allow, after the day on which the party was notified in the prescribed manner of the decision or the person was notified in writing of the Minister's decision and of the reasons for it.
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82. (1) La personne qui se croit lésée par une décision du ministre rendue en application de l'article 81 ou du paragraphe 84(2) ou celle qui se croit lésée par une décision du ministre rendue en application du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse ou, sous réserve des règlements, quiconque de sa part, peut interjeter appel par écrit auprès d'un tribunal de révision de la décision du ministre soit dans les quatre-vingt-dix jours suivant le jour où la première personne est, de la manière prescrite, avisée de cette décision, ou, selon le cas, suivant le jour où le ministre notifie à la deuxième personne sa décision et ses motifs, soit dans le délai plus long autorisé par le commissaire des tribunaux de révision avant ou après l'expiration des quatre-vingt-dix jours.
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82.(11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action in relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal's decision and of the reasons for its decision.
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82.(11) Un tribunal de révision peut confirmer ou modifier une décision du ministre prise en vertu de l'article 81 ou du paragraphe 84(2) ou en vertu du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en application de ces dispositions; le commissaire des tribunaux de révision doit aussitôt donner un avis écrit de la décision du tribunal et des motifs la justifiant au ministre ainsi qu'aux parties à l'appel.
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Analysis and Decision
[24] Issue 1
Did the Review tribunal err in law in concluding that a Review tribunal established under section 82 of the Canada Pension Plan, supra and section 28 of the Old Age Security Act, supra has jurisdiction to review a decision of the Minister made pursuant to section 32 of the Old Age Security Act, supra?
This issue was framed in relation to section 32, although as discussed below, it is my view that the Minister's original decision was made pursuant to paragraph 37(4)(d).
[25] I am of the opinion that the Review Tribunal established under section 82 of the Canada Pension Plan, supra and section 28 of the Old Age Security Act, supra, has jurisdiction to review a reconsideration of the Minister pursuant to section 27.1 of a decision of the Minister made pursuant to section 32 of the Old Age Security Act, supra.
[26] The Minister's power to reconsider is contained in section 27.1 of the Old Age Security Act, supra. This reconsideration by the Minister can be appealed to a Review Tribunal pursuant to subsection 28(1) of the Old Age Security Act, supra.
[27] The review tribunal to which the appeal is made is established and governed by section 82 of the Canada Pension Plan, supra. Subsection 82(1) of the Canada Pension Plan, supra provides that a person who is dissatisfied with a decision of the Minister made under subsections 27.1(1) and (2) of the Old Age Security Act, supra, may appeal the decision to the Review Tribunal. In the present case, the respondent was not satisfied with the Minister's reconsideration decision and appealed the decision to the Review Tribunal. As already indicated, based on the legislative framework, the Review Tribunal has jurisdiction to hear the appeal of the reconsideration of a decision made by the Minister under section 32 of the Old Age Security Act, supra, as decisions under section 32 are decisions or determinations made under the Old Age Security Act, supra as contemplated by subsection 27.1(1) of the Old Age Security Act, supra.
[28] The applicant seeks to rely on the Federal Court of Appeal case of Pincombe v. Canada (A.G.), supra as authority that the Review Tribunal does not have jurisdiction to review discretionary decisions of the Minister. Pincombe, supra is a decision under the Canada Pension Plan, supra which contains only limited rights of appeal to a review tribunal, and specifically does not contain similar provisions to sections 27.1 and 28 of the Old Age Security Act, supra.
[29] Accordingly, the decision in Pincombe, supra does not affect the right of the respondent to appeal to a review tribunal in this proceeding.
[30] Issue 2
Did the Review Tribunal err in law in concluding that a Review Tribunal established under section 82 of the Canada Pension Plan, supra and section 28 of the Old Age Security Act, supra has jurisdiction to review a decision of the Minister made pursuant to subsection 37(4)(d) of the Old Age Security Act, supra?
I am of the view that a decision by the Minister made pursuant to subsection 37(4) of the Old Age Security Act, supra is a decision contemplated by subsection 27.1(1) of the Old Age Security Act, supra.
[31] For the same reasons described under Issue 1, I am of the view that the Review Tribunal has jurisdiction to hear this appeal. The wording in subsection 27.1(1) and 28(1) is broad enough that there is no justification to carve out exceptions for discretionary decisions made pursuant to section 32 or paragraph 37(4)(d) of the Old Age Security Act, supra. Further, the Minister did reconsider the original decision pursuant to section 27.1 and the Act clearly provides a right of appeal of subsection 27.1(2) reconsideration decisions to the Review Tribunal.
[32] Issue 3
Did the Review Tribunal act without jurisdiction, act beyond jurisdiction, or refuse to exercise its jurisdiction in reversing the decision of the Minister taken in accordance with subsection 37(4)(d) of the Old Age Security Act, supra?
The applicant submits that section 32 contains two conditions: (1) the Minister is satisfied that there was erroneous advice given or an administrative error; and (2) the Minister is satisfied that as a result of this error, an individual has been denied a benefit or portion of a benefit to which that person would have been entitled under this Act. The applicant submits that the second condition cannot have been met as the respondent was not denied a benefit or a portion of a benefit to which she would have been entitled.
[33] My review of the legislation leads me to the conclusion that section 32 of the Old Age Security Act, supra deals with erroneous advice or administrative error that results in a person not receiving as much benefit that the person was entitled to receive. The remainder of section 32 speaks about the Minister taking such remedial action as the Minister considers appropriate to place the person in the position that the person would have been in had the erroneous advice not been given or the administrative error not been made.
[34] The situation in the present case deals with the respondent receiving a greater benefit than she was entitled to receive because of the erroneous advice being given or the administrative error being made.
[35] Subsection 37(4) which is repeated here for ease of reference states in part:
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37.(4) Notwithstanding subsections (1), (2) and (3), where a person has received or obtained a benefit payment to which that person is not entitled or a benefit payment in excess of the amount of the benefit payment to which that person is entitled and the Minister is satisfied that
. . .
(d) the amount or excess of the benefit payment is the result of erroneous advice or administrative error in the administration of this Act,
the Minister may, unless that person has been convicted of an offence under any provision of this Act or of the Criminal Code in connection with the obtaining of the benefit payment, remit all or any portion of the amount or excess of the benefit payment.
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37.(4) Malgré les paragraphes (1), (2) et (3), le ministre peut, sauf dans les cas où le débiteur a été condamné, aux termes d'une disposition de la présente loi ou du Code criminel, pour avoir obtenu la prestation illégalement, faire remise de tout ou partie des montants versés indûment ou en excédent, s'il est convaincu_:
. . .
d) soit que la créance résulte d'un avis erroné ou d'une erreur administrative survenus dans le cadre de l'application de la présente loi.
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[36] This section addresses the type of overpayment referred to in paragraph 33 of this decision, specifically a payment of benefit to which that person is not entitled.
[37] The respondent is dissatisfied with the amount of benefit that should be paid to her. She wishes to keep the amount that was paid to her as a result of the erroneous advice or administrative error in the administration of the Act. This gives the respondent the right to request a reconsideration pursuant to subsection 27.1(1) of the Old Age Security Act, supra. When that reconsideration is not favourable to the respondent, she can appeal the reconsidered decision to the review tribunal pursuant to subsection 28(1) of the Old Age Security Act, supra. As stated earlier under Issue 2, the Review Tribunal has jurisdiction to entertain the appeal of the paragraph 37(4)(d) decision.
[38] The powers of the Review Tribunal are contained in subsection 82(11) of the Canada Pension Plan, supra and are repeated for ease of reference:
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82.(11) A Review Tribunal may confirm or vary a decision of the Minister made under section 81 or subsection 84(2) or under subsection 27.1(2) of the Old Age Security Act and may take any action in relation to any of those decisions that might have been taken by the Minister under that section or either of those subsections, and the Commissioner of Review Tribunals shall thereupon notify the Minister and the other parties to the appeal of the Review Tribunal's decision and of the reasons for its decision.
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82.(11) Un tribunal de révision peut confirmer ou modifier une décision du ministre prise en vertu de l'article 81 ou du paragraphe 84(2) ou en vertu du paragraphe 27.1(2) de la Loi sur la sécurité de la vieillesse et il peut, à cet égard, prendre toute mesure que le ministre aurait pu prendre en application de ces dispositions; le commissaire des tribunaux de révision doit aussitôt donner un avis écrit de la décision du tribunal et des motifs la justifiant au ministre ainsi qu'aux parties à l'appel.
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[39] The Review Tribunal may, according to this section, take any action in relation to any of these decisions that might have been taken by the Minister. One of the decisions that the Minister could have made on reconsideration was to "remit all or any portion of the excess amount or excess of the benefit payment" (paragraph 37(4)(d) of the Old Age Security Act, supra). I am of the opinion that this is what the Review Tribunal ordered. Consequently, the decision of the Review Tribunal was a reasonable decision and one that it was entitled to make pursuant to the legislation. As long as the decision of the Review Tribunal was not an unreasonable decision, it is not the role of this Court to disturb the decision.
[40] The application for judicial review is dismissed.
ORDER
[41] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
April 30, 2002
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1711-00
STYLE OF CAUSE: The Minister of Human Resources Development v.
Beryl Tucker
PLACE OF HEARING: St. John's, Newfoundland
DATE OF HEARING: March 27, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE O'KEEFE DATED: April 30, 2002
APPEARANCES:
Ms. Katia Bustros FOR APPLICANT
Ms. Beryl Tucker ON HER OWN BEHALF
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada FOR APPLICANT
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