Date: 19991230
Docket: T-695-99
OTTAWA, Ontario, December 30, 1999
BEFORE: Rouleau J.
Between:
ROGER WHITTON,
Plaintiff,
And:
THE ATTORNEY GENERAL OF CANADA,
Defendant.
ORDER
[1] The application for judicial review is dismissed.
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P. ROULEAU
JUDGE
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Certified true translation
Bernard Olivier, LL. B.
Date: 19991230
Docket: T-695-99
Between:
ROGER WHITTON,
Plaintiff,
And:
THE ATTORNEY GENERAL OF CANADA,
Defendant.
REASONS FOR ORDER
ROULEAU J.
[1] At the opening of the hearing the parties mutually agreed that it was advisable to amend the style of cause. The Attorney General of Canada will henceforth be designated as the sole defendant.
[2] This case concerns an application for judicial review pursuant to s. 18 of the Federal Court Act, R.S.C. 1985, c. F-7, asking the Court to issue a writ of mandamus to give effect to the Old Age Security Act, R.S.C. 1985, c. O-9, as amended (hereinafter "the Act"). This application asked the Court to order the Minister of Human Resources Development Canada to restore the pension owed to the plaintiff under the Act and reimburse the plaintiff the money withheld since September 1996.
[3] The plaintiff, Mr. Whitton, is 74 years old. On January 10, 1989 he made an application for old age security benefits under the Act. In September 1989 he attained the age of 65 years and began receiving his benefits.
[4] From September 1989 to September 1996 the plaintiff received his monthly benefits accompanied by the guaranteed income supplement because of his financial and family situation.
[5] In 1996 the Minister of Human Resources Development Canada found that from June 1973 to October 1993 old age security benefit cheques had been issued to and cashed in the name of Marie Whitton, the plaintiff's mother, who died in 1973. These cheques represented an amount of $123,388.51.
[6] An investigation was initiated to determine how and by whom Mrs. Whitton's cheques were cashed. Robert de Chantal, an investigator for the Department of Human Resources Development Canada, met several times with plaintiff and stated that the latter admitted receiving and cashing the cheques issued to his mother for twenty years. However, the plaintiff signed no documents to that effect.
[7] On September 17, 1996 the plaintiff received a letter telling him that his benefits had been suspended since his case was under investigation. He sent a letter to the Department dated December 13, 1996 indicating that he challenged this decision, but made no application for judicial review of the decision to suspend his benefits.
[8] In a letter dated April 15, 1998 Mr. Rabinovitch, the Assistant Deputy Minister, Income Security Programs, explained to the plaintiff that the payment of the benefits had been suspended under s. 9(5) of the Act in order to recover by set-off the amounts which the plaintiff had apparently improperly appropriated by cashing his deceased mother's cheques for twenty years.
[9] A year later, on April 21, 1999, the plaintiff filed the instant application for judicial review seeking a writ of mandamus ordering the Minister to restore the payment of his benefits.
[10] By a letter of May 13, 1999 the plaintiff was told that the decision to suspend payment of his benefits would be maintained.
[11] Apparently the plaintiff's only income now is his veteran's benefits amounting to $587 a month. He has had to obtain assistance from the Quebec Sécurité du revenu, which must be repaid.
[12] The plaintiff stated that he had tried for two years to obtain a decision from the Department; he claimed the right to be heard, the restoration of payment of his benefits and recovery of the benefits suspended for two years.
[13] He maintained that his situation was contrary to the rules stated in the Act, since he was a claimant whose eligibility for benefits was not in dispute and he was thus entitled to the payment of his benefits. He stated that his right to the benefits was not at issue, that the present situation involved the payment of benefits in two separate cases: his mother's and his own. He submitted that as his record was clean he should be entitled to the benefits. Consequently, he said he benefited from the presumption of innocence since his situation was consistent with the legislation.
[14] The plaintiff submitted that he had received no claim for the benefits improperly received against his old age security claimant file. He emphasized that he had never been sued to recover a debt to Her Majesty and that accordingly the set-off made by the Minister was unlawful.
[15] The defendant argued that the instant application in fact seeks to dispute a decision made in September 1996 and is therefore beyond the deadline. It was not until April 1999, over two years later, that the plaintiff challenged the decision. Under s. 18.1(2) of the Federal Court Act an application for judicial review must be made within 30 days after the time the disputed decision was first communicated.
[16] The defendant argued that the suspension and set-off made against the benefits owed to the plaintiff are legal and in keeping with the Act. He noted that the plaintiff admitted to the investigator, Mr. de Chantal, that he had cashed his deceased his mother's cheques for twenty years. A pension is payable to persons meeting the conditions laid down in s. 3 of the Act, subject to the other provisions of the Act. He stated that it can be seen from reading that section that cashing for oneself pension cheques issued in another's person name contravenes the Act.
[17] Consequently, the defendant submitted under s. 9(5) of the Act that the suspension of the plaintiff's benefits was justified, although it is not the plaintiff's eligibility that is at issue. He further submitted that under s. 37(2.1) of the Act recovery of the money improperly received can be made by offset between the amounts owed by the plaintiff and benefits which may be payable to him.
[18] The defendant noted that a writ of mandamus is an extraordinary remedy which can be sought when a public authority refuses to perform a duty imposed on it by legislation expressly or by necessary implication. He further stated that certain fundamental conditions for a mandamus must be met. One of these conditions is that the plaintiff should establish a clear right to obtain performance of the duty.
[19] The defendant argued that a decision had already been rendered in September 1996 and repeated several times. He submitted that if the plaintiff was not satisfied with that decision he should have challenged it in the proper way at the proper time, and could not now by his application for mandamus try to reverse the decision by imposing the result sought.
[20] Assuming the plaintiff is really seeking to obtain a writ of mandamus ordering the Minister to restore payment of his pension, the defendant alleged that this application is academic since a decision was rendered in September 1996 regarding the payment of the plaintiff's benefits. Accordingly, the duty to render a decision was performed by the proper authority.
[21] As the defendant noted, the mandamus remedy is not the proper procedure in the case at bar since a decision has already been rendered. The following passage comes from P. Garant, Droit administratif, vol. 2, 4th ed., Montréal, Yvon Blais, 1996:
[TRANSLATION]
An individual makes an application for mandamus when a public authority refuses to perform a duty imposed on it by legislation either expressly or by necessary implication . . . The purpose of mandamus is to compel the public authority to act and make a decision.
[22] In a letter dated April 15, 1998 the Deputy Minister, Income Security Programs, informed the plaintiff on the Minister's behalf that he was the subject of an administrative investigation for fraud. The Deputy Minister went on to affirm the decision to suspend the benefits under s. 37 of the Act. He said the following:
[TRANSLATION]
As I mentioned, the administrative decisions made in this matter to date do not affect Mr. Whitton's eligibility for old age security benefits. Their purpose is rather to obtain repayment of the money which your client has apparently appropriated.
[23] It was submitted that the defendant's actions allowed Mr. Whitton to obtain a mandamus because he met all the requirements governing such orders. The defendant [sic] referred me to the Federal Court of Appeal judgment in Apotex Inc. v. Attorney General of Canada et al., [1994] 1 F.C. 742, in particular at 766, where the Court begins the list of applicable principles. Condition No. 7, found at 769, reads as follows:
7. The Court in the exercise of its discretion finds no equitable bar to the relief sought.
[24] I strongly doubt that the plaintiff can meet this requirement. Moreover, I am satisfied that the plaintiff has already obtained a decision from the Minister and that an application for mandamus is not appropriate.
[25] The mandamus proceeding requires first of all that there be a right and that no other remedy be available to redress the wrong; that there be responsibility by the Minister, and that the latter is refusing or failing to perform his duties. In the case at bar the plaintiff qualified to receive pension benefits and these were granted to him. However, rather than paying them to him the Minister applied them to reducing the debt to Her Majesty resulting directly from the plaintiff's actions.
[26] The decision to suspend payment of the benefits appears justified to the Court. No searching analysis is necessary to establish that Mr. Whitton was not entitled to the benefits issued in his deceased mother's name. The plaintiff cashed these benefits improperly and there was accordingly a breach of the provisions of the Act.
[27] Under s. 37(1), (2) and (2.1), the benefits received by the plaintiff to which he was not entitled may be deducted from money which may become payable to him. Those subsections read as follows:
| 37(1) Le trop-perçu - qu'il s'agisse d'un excédent ou d'une prestation à laquelle on n'a pas droit - doit être immédiatement restitué, soit par remboursement, soit par retour du cheque.
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37.(1) A person who has received or obtained by cheque or otherwise a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be.
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| 37(2) Les prestations reçues et auxquelles le prestataire n'a pas droit en tout ou en partie constituent des créances de Sa Majesté, dont le recouvrement peut être poursuivi à ce titre devant la Cour fédérale ou tout autre tribunal compétent, ou de la façon prévue par la loi.
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37.(2) If a person has received or obtained a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, the amount of the benefit payment or the excess amount, as the case may be, constitutes a debt due to Her Majesty and is recoverable at any time in the Federal Court or any other court of competent jurisdiction or in any manner provided by this Act.
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| 37(2.1) Ces prestations peuvent en outre être déduites, de la façon réglementaire, des sommes qui sont éventuellement payables au prestataire ou à sa succession en vertu de la présente loi ou de toute autre loi ou tout programme dont la gestion est confiée au ministre.
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37.(2.1) If any amount is or becomes payable to the person or to the person's estate or succession under this Act or any other Act or program administered by the Minister, the amount of the debt may be deducted and retained out of the amount payable in the prescribed manner.
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(My emphasis.)
[28] I am persuaded that although the plaintiff has not been sued to recover a debt to Her Majesty, the recovery is in accordance with the Act.
[29] Recovery of a debt to Her Majesty under s. 37(1) and (2) of the Act is maintained by s. 27 of the Old Age Security Regulations, which provides as follows:
| 27(1) Le Directeur régional doit recouvrer d'un bénéficiaire toute somme indûment versée sous forme de prestation, que cette somme ait été versée parce que certains faits n'avaient pas été révélés, en raison de fausses représentations ou d'erreurs, ou pour toute autre cause.
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27.(1) The Regional Director shall recover from a beneficiary any sum improperly paid by way of benefit whether such sum was paid as the result of non-disclosure of facts, misrepresentation, error or any other cause.
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| 27(2) Lorsque le Directeur régional n'a pas recouvré la totalité de la somme mentionnée au paragraphe (1), il peut,
a) lorsque le bénéficiaire a commis un vol ou une fraude pour obtenir une prestation, ou
b) lorsque le bénéficiaire a, au cours d'une année financière ou de l'année financière précédente, reçu un excédent de supplément dont le montant a été calculé et n'a pas été entièrement déduit et retenu au cours de cette année financière,
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27.(2) Where the Regional Director has not recovered the whole sum referred to in subsection (1), he may,
(a) where the beneficiary made a wilful misrepresentation or committed fraud for the purpose of receiving or obtaining a benefit, or
(b) where the beneficiary has, in a fiscal year or in the immediately preceding fiscal year, received an excess of supplement in an amount that has been determined and that has not been wholly deducted and retained in either fiscal year,
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| retenir toute prestation payable au bénéficiaire, ou déduire et retenir, sur tout versement de prestation payable au bénéficiaire, toute partie qui permettra de recouvrer le plus-payé dans un espace de temps qu'il jugera raisonnable, compte tenu de toutes les circonstances du cas, jusqu'à ce que le montant global des prestations retenues ou des parties de prestations déduites et retenues soit égal à la somme indûment versée.
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retain any benefit payable to the beneficiary or may deduct and retain out of any payments of benefit payable to the beneficiary such portion thereof as will recover the overpayment over a period of time considered by the Regional Director, having regard to all the circumstances of the case, to be reasonable, until the aggregate amount of the retained benefit or of the deducted and retained portions thereof equals the sum improperly paid.
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[30] As I mentioned above, in the affidavit in support of the defendant's position Robert de Chantal states that Mr. Whitton admitted receiving and cashing the cheques issued in his mother's name. This evidence is part of the sworn statement on June 16, 1999. Although Mr. Whitton has never signed any document to that effect, it is still undisputed evidence.
[31] The application for judicial review is dismissed.
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P. ROULEAU
JUDGE
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OTTAWA, Ontario
December 30, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-695-99
STYLE OF CAUSE: Roger Whitton v. The Attorney General of Canada et al.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 20, 1999
REASONS FOR ORDER BY: Rouleau J.
DATED: December 30, 1999
APPEARANCES:
Lise Ferland FOR THE PLAINTIFF
Nadia Hudon FOR THE DEFENDANT
SOLICITORS OF RECORD:
Ferland, Ouellet & Proulx FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec
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