Date: 20110214
Docket: T-1091-10
Citation: 2011
FC 176
Ottawa, Ontario, February 14, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
|
|
KIM MARIE BESSETTE
|
|
|
|
Applicant
|
|
and
|
|
|
ATTORNEY GENERAL OF CANADA
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I.
Overview
[1]
Ms.
Kim Marie Bessette has been receiving disability benefits under the Canada
Pension Plan (CPP) since the early 1990s. During the years 1993 to 2000, she
and her husband had five children. In 2009, Ms. Bessette inquired about
receiving Disabled Contributor’s Child Benefits (DCCB) for her children. She
maintains that the official to whom she spoke assured her that she was entitled
to receive benefits retroactively to the dates of birth of her children.
However, she has only received 11 months of retroactive benefits.
[2]
Ms.
Bessette complained to the Minister of Human Resources and Skills Development
but in 2010, she was told, after a series of reviews and appeals, that she had
received the maximum benefits to which she is entitled under the CPP. Ms.
Bessette submits that the Minister made an unreasonable decision and treated her
unfairly in arriving at it. She asks me to overturn the Minister’s decision,
and to order the Minister to pay her the full amount of benefits she feels she
is owed.
[3]
I
have reviewed the record carefully and can find no basis for overturning the
Minister’s decision. In my view, the Minister treated Ms. Bessette fairly in
reviewing her complaint and did not arrive at an unreasonable conclusion based
on the facts and the law. Accordingly, I must dismiss this application for
judicial review.
[4]
There
are two questions:
- Did the Minister
treat Ms. Bessette unfairly?
- Did the Minister
render an unreasonable decision?
II. Background
[5]
Under
the CPP, a DCCB is normally payable the month after the child’s birth (s 74(2)(a)(ii)).
However, in no case are benefits payable for a period earlier than 11 months
before the application for benefits is received (s 74(2)).
[6]
In
circumstances where a person receives erroneous advice from the Minister and,
as a result, is denied benefits to which he or she would otherwise have been
entitled, the Minister must provide that person an appropriate remedy to
restore the person to the position he or she would have been in had the wrong
advice not been given (s 66(4)). The remedy is conditional on the Minister’s
being satisfied that an error was made that resulted in a loss of benefits: Kissoon
v Canada (Minister of
Human Development Resources), 2004 FC 24, aff’d, 2004 FCA 384; Jones
v Canada (Attorney
General), 2010
FC 740.
[7]
Here,
Ms. Bessette claimed that an official advised her that she was entitled to
benefits retroactively to her children’s birthdates, that the government was
generous in respect of benefits owed to children and, therefore, that the usual
11-month period of retroactivity was not strictly applied. Ms. Bessette
asserted that this advice was erroneous (given that the CPP stipulates that “in
no case” will benefits be paid for a period earlier than 11 months before an
application). In turn, she claims, she failed to receive the benefits to which
she was entitled and the Minister must, therefore accord her an appropriate
remedy. Ms. Bessette also suggests that the Minister failed to discharge the
duty to inform her in a timely way of the benefits to which she was entitled,
and did not follow a fair process in responding to her complaint.
[8]
Ms.
Bessette did, in fact, receive benefits retroactive to March 2008, 11 months
prior to her February 2009 application.
III. The
Minister’s Decision
[9]
A
benefits officer, acting as the Minister’s delegate, sent Ms. Bessette a
written decision in a letter dated June 23, 2010. The officer explained that
Ms. Bessette’s file had been thoroughly reviewed. Still, he concluded that she
had not been denied a benefit as a result of having received erroneous advice.
In particular, he found that the agent to whom Ms. Bessette had originally
spoken was aware of the 11-month limitation on retroactive benefits. Further,
he noted that Ms. Bessette had been receiving newsletters since 2001 informing
her of the availability of benefits for children. Finally, he pointed out that
the onus falls on applicants to inform themselves about the benefits available
to them.
(1) Did the
Minister treat Ms. Bessette unfairly?
[10]
While
Ms. Bessette maintains that the Minister failed to observe the principles of
natural justice, she does not point to any particular defect in the manner in
which her complaint was handled by the Minister. Her main issue is with the
outcome of the decision, not the procedures that led to it.
[11]
In
any case, from my review of the record, it appears that the Minister treated
Ms. Bessette’s compliant fairly. She was given an opportunity to request a
reconsideration of her entitlement to additional retroactive benefits. After
the original decision was upheld, she appealed to the Office of the
Commissioner of the Review Tribunals which led to a reinvestigation of her
claim. At that point, she was given an opportunity to provide additional information
and, in fact, did so. A delegate of the Minister then reviewed the entire file
and recommended the result that was ultimately relayed to Ms. Bessette in the
letter dated June 23, 2010.
(2) Did the
Minister render an unreasonable decision?
[12]
I
can overturn the Minister’s decision only if I find that it was unreasonable
based on the facts and the law.
[13]
Ms.
Bessette argues, in essence, that she had been entitled to DCCB going back to
the 1990s when she started having children. The official to whom she spoke gave
her the impression that the government would respond generously to her
application and not hold firm to the 11-month retroactivity limit. There was no
valid reason, in her view, not to provide her the benefits to which she was entitled.
In addition, Ms. Bessette submits that the Minister’s efforts to communicate
her benefit entitlements were inadequate in the circumstances. The newsletters
relied on by the Minister began publication in 2001, well after the time frame
in which she became eligible for additional benefits. No government official
ever contacted her to make her aware of her entitlement.
[14]
I
can find no legal support for Ms. Bessette’s argument that the Minister bore
the onus of informing her that she was entitled to the DCCB. The CPP puts the
onus on applicants to claim benefits (s 60(1)).
[15]
As
for Ms. Bessette’s submission that she was misinformed about retroactive
benefits, I am obviously not in a position to make any findings of fact. I can
only review the Minister’s conclusion and determine whether it was reasonable.
Here, the Minister’s delegate reviewed Ms. Bessette’s entire file and all of
her submissions. He interviewed the official to whom Ms. Bessette had
originally spoken. Based on those inquiries, the delegate concluded that no
erroneous advice had been given to Ms. Bessette. In the circumstances, I cannot
find that his conclusion was unreasonable.
[16]
More
importantly, however, even if there had been an error in the advice provided to
Ms. Bessette, the limitation on her retroactive benefits was not caused by any
error. The limitation is provided by statute. The cause of any loss of benefits
was the failure to make a timely claim for them, not the conduct of the
official to whom Ms. Bessette spoke. It would be completely different, of
course, if Ms. Bessette had been told that she did not have to make a claim for
benefits when her children were born because benefits can be assessed
retroactively whenever she applied for them. In that case, Ms. Bessette would
have suffered a loss attributable to bad advice. That is not the situation
here. Even if the official had been mistaken about the retroactivity rule, the
limit on Ms. Bessette’s eligibility would solely be the product of the will of
Parliament as expressed in the CPP, not the official’s error.
[17]
Accordingly,
I cannot find the Minister’s decision denying Ms. Bessette retroactive benefits
beyond the 11-month limit to be unreasonable.
IV. Conclusion and
Disposition
[18]
The
Minister’s conclusion that Ms. Bessette had not received erroneous advice and,
in any case, had not been denied any benefits as a result of wrong advice was
reasonable in the sense that it fell within the range of possible outcomes
based on the facts and the law. I must, therefore, dismiss this application for
judicial review. There is no order as to costs.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is dismissed.
2.
No
order as to costs.
“James
W. O’Reilly”
Annex “A”
|
Canada Pension Plan, RSC, 1985, c C-8
Application
for benefit
60.
(1) No benefit is payable to any person under this Act unless an application
therefor has been made by him or on his behalf and payment of the benefit has
been approved under this Act.
Where person
denied benefit due to departmental error, etc.
66. (4) 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)
a benefit, or portion thereof, to which that person would have been entitled
under this Act,
(b)
a division of unadjusted pensionable earnings under section 55 or 55.1, or
(c)
an assignment of a retirement pension under section 65.1,
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.
Commencement
of payment of benefit
74. (2)
Subject to section 62, where payment of a disabled contributor’s child’s
benefit or orphan’s benefit in respect of a contributor is approved, the
benefit is payable for each month commencing with,
(a)
in the case of
a disabled contributor’s child’s benefit, the later of
…
(ii)
the month next following the month in which the child was born or otherwise
became a child of the contributor,
…
but in no case
earlier than the twelfth month preceding the month following the month in
which the application was received.
|
Régime
de pensions du Canada,
LR, 1985, ch C-8
Demande de prestation
60. (1) Aucune
prestation n’est payable à une personne sous le régime de la présente loi,
sauf si demande en a été faite par elle ou en son nom et que le paiement en
ait été approuvé selon la présente loi.
Refus d’une prestation en raison d’une erreur
administrative
66. (4) Dans le cas où le ministre est convaincu qu’un avis
erroné ou une erreur administrative survenue dans le cadre de l’application
de la présente loi a eu pour résultat que soit refusé à cette personne, selon
le cas :
a) en tout ou
en partie, une prestation à laquelle elle aurait eu droit en vertu de la
présente loi,
b) le partage
des gains non ajustés ouvrant droit à pension en application de l’article 55
ou 55.1,
c) la cession
d’une pension de retraite conformément à l’article 65.1,
le ministre prend les mesures
correctives qu’il estime indiquées pour placer la personne en question dans
la situation où cette dernière se retrouverait sous l’autorité de la présente
loi s’il n’y avait pas eu avis erroné ou erreur administrative.
Début du versement de la prestation
74. (2) Sous réserve de l’article 62, lorsque le paiement
d’une prestation d’enfant de cotisant invalide ou d’une prestation d’orphelin
est approuvé, relativement à un cotisant, la prestation est payable pour
chaque mois à compter :
a) dans le
cas d’une prestation d’enfant de cotisant invalide, du dernier en date des
mois suivants :
[…]
(ii) le mois qui
suit celui où l’enfant est né ou est devenu de quelque autre manière l’enfant
du cotisant;
[…]
Toutefois, ce mois ne peut en aucun cas
être antérieur au douzième précédant le mois suivant celui où la demande a
été reçue.
|
Email this Content