Date: 20070829
Docket: T-207-07
Citation: 2007 FC 869
Ottawa, Ontario, August 29, 2007
PRESENT: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
MARYANN C. MULVENEY
Applicant
and
MINISTER, HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The issue raised in this application for
judicial review is whether the Minister's delegate committed a reviewable error
when she found that the overpayment to Ms. Mulveney of Canada Pension Plan
(CPP) disability benefits was not the result of erroneous advice or
administrative error on the part of the Minister of Human Resources Development
Canada (Minister) or an official of the Minister's department. The issue
arises out of the following facts.
[2] By
application signed on October 21, 1994, Ms. Mulveney applied for disability
benefits under the CPP on the ground that she was suffering from Chronic
Fatigue Immune Dysfunction Syndrome. Her application was approved effective
January of 1994. Ms. Mulveney returned to work on a brief, part-time basis in
November of 1996, started full-time employment in September of 1997 and
regained her prior position as a secondary school vice-principal in September
of 1998.
[3] In
February of 1999, Ms. Mulveney contacted Human Resources Development Canada
(HRDC) to request that her disability benefits be stopped because she had
returned to work. Ultimately, the Pension Appeals Board determined that Ms.
Mulveney was not entitled to the payment of CPP benefits from July of 1997 to
February of 1999.
[4] Subsection
66(1) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (Act), provides
that a person who receives a benefit to which they are not entitled shall
forthwith return the amount of the benefit payment. Subsection 66(2) of the
Act allows for the recovery of benefits paid to a person not entitled to such
benefits. Notwithstanding these provisions, paragraph 66(3)(d) of the
Act confers the following discretion upon the Minister:
|
66(3) Notwithstanding paragraph 61(2)(b) and subsections (1) and
(2) of this section, where a person has received or obtained a benefit
payment to which he is not entitled, or a benefit payment in excess of
the amount of the benefit payment to which he 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 on the part of the Minister or an official of the
Department of Social Development acting in an official capacity 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.
[underlining added]
|
66(3) Nonobstant
l’alinéa 61(2)b) et les paragraphes (1) et (2) du présent article, lorsqu’une
personne a reçu ou obtenu une prestation à laquelle elle n’a pas droit ou
une prestation supérieure à celle à laquelle elle a droit et que le
ministre est convaincu que, selon le cas :
[…]
d) le
montant ou l’excédent de la prestation résulte d’un avis erroné ou d’une
erreur administrative attribuable au ministre ou à un fonctionnaire du
ministère du Développement social agissant dans le cadre de ses fonctions en
application de la présente loi,
le ministre peut, sauf dans les cas
où cette personne a été condamnée, 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.
[non souligné dans l’original]
|
(Subsections 61(2), 66(1), 66(2),
66(3) and 66(4) of the Act are set out in the schedule to these reasons).
[5] Ms.
Mulveney, as she was entitled to do, sought a positive exercise of discretion
under paragraph 66(3)(d) of the Act, alleging administrative error on
two grounds. First, HRDC was alleged to have erred by failing to provide
periodic reminders about the criteria for the continuation of benefits. Such reminders
were said to be necessary because of the cognitive impairment, concentration
difficulty, and memory lapses associated with Ms. Mulveney's illness.
Second, when Ms. Mulveney applied for CPP benefits she requested that the
benefits not be paid to her by way of direct deposit into her bank account so
that she would have a tangible reminder about the benefits she was receiving.
Notwithstanding her initial request, in April of 1996 benefits began being paid
by way of direct deposit into her bank account. Ms. Mulveney says this
was done without her permission and that had she received actual cheques she
could have contacted HRDC earlier in order to stop the payment of benefits.
[6] By
letter dated July 9, 2004, Ms. Mulveney was notified of the decision made on
the Minister's behalf that the overpayment of CPP benefits was not the result
of any error on the part of HRDC. The decision is very brief and is as
follows:
We have reviewed your file in
response to your claim of erroneous advice/administrative error on the part of
Canada Pension Plan. One of your concerns is insufficient communication by CPP
regarding return to work while in receipt of a disability benefit. The other
concern is the direct deposit of your disability pension cheques without your
authorization.
Re: insufficient communication
regarding return to work:
• When
you signed your application for a CPP Disability Benefit, you agreed to notify
the CPP if you returned to work. Enclosed are copies of the Application Form
and the last page of the Questionnaire when your signature appears.
• As
part of a Direct Mail Project, CPP sent you a letter in December 1995 giving
you information about your benefit. In your letter dated May 11, 2000 you
indicated that you did receive this correspondence. Enclosed is a copy of the letter
and print-outs you would have received.
Re: direct deposit of benefit
payments:
• Without
your authorization, CPP has no access to your bank account number or bank of
choice.
• Each
year that you were receiving benefits, you were issued a T4 form indicating the
total amount of benefit paid. This is for reporting in your Income Tax return.
In a telephone conversation, we agreed that you would forward copies of your
Income Tax returns for the years you were receiving benefits. These have not
been received.
As a result of this review, it
has been determined that CPP did not err, therefore the recovery of the
overpayment will be initiated.
STANDARD OF REVIEW
[7] On
this application for judicial review, it is not for the Court to determine
whether it agrees with the Minister's decision or whether it would have reached
the same conclusion. Rather, the Court must determine, as a matter of law,
what the proper standard of review to be applied to the Minister's decision is,
and then it must apply that standard of review to the decision.
[8] In
order to determine the standard of review, the Court must conduct a pragmatic
and functional analysis in which it considers:
1. The nature
of the review mechanism provided by the relevant legislation.
2. The relative
expertise of the decision-maker.
3. The purpose of the legislation and the particular relevant
legislative provision.
4. The nature
of the question.
[9] Dealing
with each factor in turn, the Act does not contain a privative provision or any
appeal mechanism in respect of decisions made pursuant to subsection 66(3) of
the Act. This factor is therefore neutral, counseling neither deference nor a
more intensive review of the decision at issue.
[10] Expertise
may be derived from specialized knowledge about a subject or from experience
and skill in the determination of particular issues. In relation to the
determination of whether an overpayment arose as a result of erroneous advice
or administrative error, I am of the view that this is a matter that falls
within the expertise of the Minister and his delegate, and that the delegate’s
expertise is superior to that of the Court. In this regard, the delegate has
significant experience and expertise in handling requests for the exercise of
discretion to remit overpayments and, as supervisor of the medical adjudication
unit of HRDC, she would have superior knowledge as to what constitutes
administrative error or erroneous advice. This factor, being the most
important of the four factors, militates in favour of affording deference to
the decision.
[11] The
purpose of subsection 66(3) of the Act is to allow the Minister to exempt
individuals from what would otherwise be their obligation to repay benefits
they received but were not entitled to. This factor, therefore, also signals
that greater deference should be afforded to the decision.
[12] Subsection
66(3) requires the Minister to be “satisfied” that an overpayment is the result
of erroneous advice or administrative error. This is a factual determination.
Again, this factor militates in favor of deference.
[13] Weighing
all of these factors which all, except for the neutral factor, counsel
deference, I conclude that the delegate's decision that the overpayment was not
the result of erroneous advice or administrative error should be reviewed
against the standard of patent unreasonableness.
[14] I
am supported in this view by jurisprudence from the Federal Court of Appeal
that has considered subsection 66(4) of the Act. Subsection 66(4) is a
parallel provision to subsection 66(3) in that where the Minister is
satisfied that there has been an underpayment of any benefit as a result of
erroneous advice or administrative error the Minister is required, pursuant to subsection
66(4), to take remedial action. In both Leskiw v. Canada (Attorney General),
[2004] F.C.J. No. 803, and Kissoon v. Canada (Minister of Human Development
Resources), [2004] F.C.J. No. 1949, the Court of Appeal dismissed appeals
where this Court had applied the standard of review of patent unreasonableness
to determinations made under subsection 66(4) that no erroneous advice had been
given. I can see no reason why different standards of review should be applied
to the factual determination of the existence of erroneous advice or
administrative error under subsections 66(3) and (4) of the Act.
[15] Ms.
Mulveney raised a further issue on this application for judicial review. She
argues that the decision-maker was biased. This raises an issue of procedural
fairness to which the pragmatic and functional analysis does not apply. It is
for the Court to determine, as a matter of law, whether the decision-maker
complied with the content of the duty of fairness. See: Canada
(Attorney General) v. Fetherston, 2005 FCA 111.
APPLICATION OF THE STANDARD
OF REVIEW TO THE DECISION
[16] At
the outset, I consider what review on the standard of patent unreasonableness
requires. In Canadian Union of Public Employees (C.U.P.E.) v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 164, the
Supreme Court of Canada explained that, while review on the standard of
correctness means that there is only one possible answer, review on the
standard of patent unreasonableness means that there could have been many
appropriate answers, but not the answer reached by the decision-maker. In Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 52,
the Supreme Court described a patently unreasonable defect as one that leaves
no real possibility of doubting that the decision is defective, and noted that
a decision that is patently unreasonable is so flawed that no amount of curial
deference can justify letting it stand.
(i) Insufficient
Communication
[17] In
concluding that there had not been any error arising out of insufficient
communication, the Minister's delegate relied upon advice given to Ms. Mulveney
in her application for CPP disability benefits and in a direct mailing sent to
Ms. Mulveney in December of 1995. On both of these occasions, advice was
provided that recipients of CPP benefits were obliged to notify HRDC if they
returned to any full or part-time work. Ms. Mulveney argues that this conclusion
is patently unreasonable because it was made without regard to the medical
evidence with respect to her cognitive impairment when she received this
information, and because the Minister’s delegate failed to consider that the
December 1995 mailing was the only correspondence Ms. Mulveney received
from HRDC in the five-year period between 1994 and 1999. Had there been a
regular correspondence from HRDC explaining her obligations, she says that the
overpayment would not have occurred.
[18] In
my view, it was not patently unreasonable for the Minister’s delegate to rely
upon the written advice provided to Ms. Mulveney in 1994 and 1995 with respect
to Ms. Mulveney’s obligation to notify HRDC of any return to work. For the
delegate to have found the failure to provide more frequent advice about Ms.
Mulveney's obligations to constitute erroneous advice or administrative error,
the delegate would have had to construe the Act and its associated regulations
so as to impose a positive obligation upon the Minister and his department to
regularly remind benefit recipients of their obligation to inform HRDC of any
return to work or change in their medical condition. I can find no provision
in the Act or the Canada Pension Plan Regulations, C.R.C., c. 385
(Regulations), that justifies such a conclusion.
[19] Ms.
Mulveney relies upon subsection 68(2) and subsections 69(1) and (2) of the
Regulations, which are set out in the schedule to these reasons. She argues
that from these provisions it may be implied that from time to time a person
whose disability has been determined under the Act may be required to undergo
special examinations, supply certain information, and the like. However, these
provisions allow the Minister to obtain information from a recipient or to
require that a recipient be examined or undergo rehabilitation measures. They
do not require the Minister to do anything.
[20] As
for the delegate's failure to expressly mention Ms. Mulveney's medical
condition, it is settled law that a decision-maker is not obliged to refer to
all of the evidence before the decision-maker in his or her reasons. See, for
example, Hassan v. Canada (Minister of Employment and
Immigration), [1992] F.C.J. No. 946 (C.A.).
(ii) Direct Deposit of
Benefit Payments
[21] It
is common ground between the parties that Ms. Mulveney indicated in her
application for CPP benefits that she did not want her disability pension to be
deposited directly into her bank account, and that the tribunal record does not
explain how it was that in April of 1996 CPP benefits began to be deposited
directly into Ms. Mulveney's bank account. Faced with this uncertainty, the
Minister's delegate inferred that Ms. Mulveney must have requested payment
by direct deposit and provided the necessary information with respect to her
financial institution and account number. Given that such information would be
required and that such information is not publicly available, I cannot find the
delegate’s decision to be patently unreasonable.
[22] The
delegate also drew the inference that Ms. Mulveney knew that she was in receipt
of CPP benefits from the fact that T4 slips were issued to her annually
indicating the amount of benefits paid and from the fact that Ms. Mulveney
failed, as she had agreed to do, to provide copies of her tax returns for the
years she was receiving benefits. In my view, again this was an inference available
to the delegate on the evidence and it was not a patently unreasonable
inference.
(iii) Bias
[23] On
July 26, 2004, after she had received the decision, Ms. Mulveney spoke with the
decision-maker. During that conversation the decision-maker is said to have
advised that she was “1000% sure” that Ms. Mulveney had given her bank account
number to HRDC, to have advised that “ignorance of the law is no excuse”, and
to have accused Ms. Mulveney of harassing her. Ms. Mulveney characterizes
the decision-maker as having a bullying demeanor and relies upon this evidence
to argue that the decision-maker was biased.
[24] The
test for bias is that articulated by the Supreme Court of Canada in Comm. for
Justice v. Nat. Energy Board, [1978] 1 S.C.R. 369 at page 394. Namely, at
law, the test for bias or a reasonable apprehension of bias is “what would an
informed person, viewing the matter realistically and practically - and having
thought the matter through - conclude. Would he think that it is more likely
than not that [a decision-maker], whether consciously or unconsciously, would
not decide fairly”. The Supreme Court also cautioned that the grounds for any
apprehension of bias must be "substantial". Subsequently in R. v.
S. (R.D.), [1997] 3 S.C.R. 484 at paragraph 113, the Court wrote that the
“threshold for a finding of real or perceived bias is high”.
[25] In
my view, the evidence before the Court is insufficient to lead an informed
person to the view that the decision-maker would not decide Ms. Mulveney's
request fairly. A particularly relevant factor is that the conversation relied
upon took place after the decision had been made. Moreover, decision-makers
are presumed to act fairly and impartially in the absence of evidence to the
contrary. See: Zündel v. Citron, [2000] 4 F.C. 225 (C.A.) at paragraphs
36 to 37 and the authorities therein referred to. There is nothing on the face
of the decision in this case that displaces that presumption. While Ms.
Mulveney views the conclusion that she provided information about her bank
account to HRDC to be an attack on her integrity, the fact the decision-maker
reached this conclusion is not, by itself, indicative of bias. As well, the
decision-maker may simply have concluded that Ms. Mulveney had no recall of providing
the information due to her cognitive state in 1996.
CONCLUSION
[26] For
these reasons, the application for judicial review must be dismissed. Counsel
for the Minister did not press any claim for costs and, in the circumstances,
the application will be dismissed without costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. The application for
judicial review is dismissed without costs.
“Eleanor
R. Dawson”
SCHEDULE
Subsections 61(2), 66(1),
66(2), 66(3) and 66(4) of the Canada Pension Plan are as follows:
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61(2) Where an interim
benefit has been paid under subsection (1) and payment of a benefit is
subsequently approved,
(a) if the
amount of the interim benefit was less than the amount of the benefit
subsequently approved, the beneficiary shall be paid the additional amount
that he would have been paid if the benefit had been approved at the time the
interim benefit was approved; and
(b) if the
amount of the interim benefit exceeded the amount of the benefit subsequently
approved, the amount paid in excess thereof shall be deducted from subsequent
payments of the benefit or otherwise recovered in such manner as the Minister
may direct.
[…]
66.(1) A person or estate that has received or
obtained by cheque or otherwise a benefit payment to which the person or
estate is not entitled, or a benefit payment in excess of the amount of the
benefit payment to which the person or estate is entitled, shall forthwith
return the cheque or the amount of the benefit payment, or the excess amount,
as the case may be.
Recovery of amount of payment
(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 other
manner provided by this Act.
[…]
Remission of amount owing
(3) Notwithstanding paragraph 61(2)(b) and subsections (1) and (2) of this section, where a
person has received or obtained a benefit payment to which he is not
entitled, or a benefit payment in excess of the amount of the benefit payment
to which he 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,
(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 on
the part of the Minister or an official of the Department of Social
Development acting in an official capacity 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.
Where person denied benefit due to departmental
error, etc.
(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.
|
61(2) Lorsqu’une prestation provisoire a été payée aux
termes du paragraphe (1) et que le paiement d’une prestation est approuvé par
la suite :
a) si le
montant de la prestation provisoire était moindre que le montant de la
prestation approuvée par la suite, il doit être payé au bénéficiaire le
montant additionnel qui lui aurait été versé si la prestation avait été
approuvée au moment où la prestation provisoire l’a été;
b) si le
montant de la prestation provisoire dépassait le montant de la prestation
approuvée par la suite, le montant versé en trop doit être déduit des
versements subséquents de la prestation, ou autrement recouvré ainsi qu’en
peut décider le ministre.
[…]
66.(1) Une
personne ou un ayant droit qui a reçu ou obtenu, par chèque ou autrement, un
paiement de prestation auquel elle n’a pas droit, ou à qui a été payée une
prestation dont le montant excédait celui auquel elle avait droit, doit
immédiatement retourner le chèque ou le montant, ou l’excédent, selon le cas.
Recouvrement des prestations
(2) La prestation ou la partie de celle-ci
que touche une personne et à laquelle elle n’a pas droit constitue une
créance de Sa Majesté dont le recouvrement peut être poursuivi en tout temps
à ce titre devant la Cour fédérale ou tout autre tribunal compétent, ou de
toute autre façon prévue par la présente loi.
[…]
Abandon d’une créance
(3) Nonobstant l’alinéa 61(2)b) et les paragraphes (1) et (2) du présent article,
lorsqu’une personne a reçu ou obtenu une prestation à laquelle elle n’a pas
droit ou une prestation supérieure à celle à laquelle elle a droit et que le
ministre est convaincu que, selon le cas :
a) le montant ou l’excédent de la prestation ne peut être récupéré
dans un avenir prévisible;
b) les frais administratifs de récupération du montant ou de
l’excédent de la prestation seraient vraisemblablement égaux ou supérieurs au
montant à récupérer;
c) le remboursement du montant ou de l’excédent de la prestation
causerait un préjudice abusif au débiteur;
d) le montant ou l’excédent de la prestation résulte d’un avis erroné
ou d’une erreur administrative attribuable au ministre ou à un fonctionnaire
du ministère du Développement social agissant dans le cadre de ses fonctions
en application de la présente loi,
le ministre peut, sauf
dans les cas où cette personne a été condamnée, 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.
Refus d’une prestation en raison d’une
erreur administrative
(4) Dans le cas où le ministre est
convaincu qu’un avis erroné ou une erreur administrative survenus 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.
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Subsections 68(2), 69(1), and
69(2) of the Canada Pension Plan Regulations are as follows:
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68(2) In addition to the requirements
of subsection (1), a person whose disability is to be or has been determined
pursuant to the Act may be required from time to time by the Minister
(a) to supply a statement of his occupation and
earnings for any period; and
(b) to
undergo such special examinations and to supply such reports as the Minister
deems necessary for the purpose of determining the disability of that person.
[…]
69(1) For the purpose of determining whether any amount
shall be paid or shall continue to be paid as a benefit in respect of a
person who has been determined to be disabled within the meaning of the Act,
the Minister may require that person from time to time
(a) to undergo such special examinations,
(b) to supply such reports, and
(c) to supply such statements of his occupation
and earnings for any period,
as the Minister may specify.
(2) Where the Minister is of the opinion that a person who has been
determined to be disabled within the meaning of the Act may benefit
vocationally from reasonable rehabilitation measures, he may, from time to
time, require that person to undergo such reasonable rehabilitation measures
as he may specify.
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68(2) En plus des
exigences du paragraphe (1), une personne dont l’invalidité reste à
déterminer ou a été déterminée en vertu de la Loi, peut être requise à
l’occasion par le ministre
a) de fournir une déclaration de ses emplois ou de ses
gains pour n’importe quelle période; et
b) de se soumettre à tout examen spécial et de fournir
tout rapport que le ministre estimera nécessaire en vue de déterminer
l’invalidité de cette personne.
[…]
69(1) En vue de déterminer si un
certain montant doit être payé ou doit continuer d’être payé comme prestation
à l’égard d’une personne dont on a déterminé l’invalidité au sens de la Loi,
le ministre peut requérir ladite personne, de temps à autre,
a) de se soumettre à tout examen spécial,
b) de fournir tout rapport, et
c) de fournir toute déclaration sur son emploi et ses gains, pour
toute période,
qu’il peut indiquer.
(2) Lorsque le ministre est
d’avis qu’une personne dont on a déterminé l’invalidité au sens de la Loi
pourrait bénéficier de mesures raisonnables de réadaptation, il peut
requérir, de temps à autre, que ladite personne se soumette à de telles
mesures qu’il peut indiquer.
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