Date: 20140711
Docket: T-2237-12
Citation:
2014 FC 689
Ottawa, Ontario, July 11, 2014
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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WAYNE ROBBINS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
Mr. Robbins (the applicant) says that he
disclosed the existence of his two children on June 21, 1997 so that they could
receive Disabled Contributor’s Child Benefits (DCCB), but that the application
was lost, hidden or ignored by the Department of Human Resources and Skills
Development (the Department). A legislation officer in the Department
investigated that claim but decided on November 13, 2012, that no such
application was ever submitted in 1997.
[2]
The applicant now seeks judicial review of the
legislation officer’s decision pursuant to subsection 18.1(1) of the Federal
Courts Act, RSC 1985, c F-7. The applicant did not identify the relief
sought in his notice of application, but he states in his memorandum that he
wants the decision set aside or else varied to provide for benefits back to the
birth dates of each of his children.
I.
Background
[3]
The applicant has been diagnosed with certain
medical conditions. As a result, he has been unable to work since March 1992.
[4]
The applicant originally applied for disability
benefits from the Canada Pension Plan (being under the Canada Pension Plan,
RSC 1985, c C-8 [CPP]) in June 1993, but his application was refused on August
30, 1993. He appealed the refusal but the Department misplaced his letter, causing
substantial delays yet still ending in a second denial on August 30, 1996. He
appealed again and this time was partially successful. On September 12, 1997,
the review tribunal found that he was disabled at least since November 1996.
However, the review tribunal held that there was not enough evidence to support
a date of disability earlier than that and so the applicant challenged that
decision as well.
[5]
This time, the Department agreed that the
applicant was disabled as of March 1992 and therefore, entitled to retroactive
benefits from July 1992 forward. The Department consented to a judgment to that
effect on May 27, 1999 and it was approved by the Pension Appeals Board on June
16, 1999.
[6]
However, that consent judgment did not award any
interest, nor did it expressly grant any benefits for the applicant’s two
children, John, born February 7, 1992 and Bridget, born December 19, 1994. The
applicant originally fought about the interest issue, but the applicant
withdrew his appeal to the Pension Appeals Board on September 14, 2006 on
advice that the Board lacked jurisdiction to deal with it. That issue is not
before the Court.
[7]
However, the issue regarding the applicant’s
children is still alive. On October 27, 1999, the applicant sent a letter to
Human Resources Development saying that “… it is now
understood that the Appellant did not receive, yet qualified for, an amount of
$171.00 per month for each of his children …”. He asked when he would
receive these payments. On November 2, 1999, he filled out an application for
benefits for his children, which was received by the Department on November 4,
1999.
[8]
This engaged paragraph 74(2)(a) of the CPP,
which provides that DCCB payments normally begin on either the month that the
disability payments became payable or the month after the child is born,
whichever is later. However, that is immediately followed by a command that
they must not be granted for any time period “earlier
than the twelfth month preceding the month following the month in which the
application was received.” In other words, retroactive DCCB payments can
only be granted for a maximum of eleven months prior to receipt of the
application.
[9]
In the applicant’s case, the Department
processed his application as if it had been received in October 1999 and so the
Department paid him DCCB for both of his children retroactive to November 1998.
[10]
The applicant challenged that start date on the
basis that the Department had known about his children much earlier and at
various times throughout the administrative process, had claimed that he had
included them on applications in 1993, 1995 and 1997. However, he lost at every
step of the way until he reached the Federal Court of Appeal.
[11]
There, on March 29, 2010, the Federal Court of
Appeal allowed his application for judicial review of the decision of the
Pension Appeals Board. However, in its reasons, cited as 2010 FCA 85, the
Federal Court of Appeal first approved many of the findings of the Board. Of
particular importance, it said the following:
1.
The Board correctly decided that, although
subsection 60(8) allows for an earlier deemed start date for some benefits, if
the applicant was incapable of making an earlier application, that did not
apply to DCCB applications (at paragraph 14);
2.
The Board correctly said that section 74
prescribes the maximum retroactivity available to the applicant’s children (at
paragraph 15); and
3.
The Board had already issued a subpoena for
production of the 1993 and 1995 applications and on August 29, 2007, had
declared it satisfied by the production of the original 1993 application and a
sworn statement that no application from 1995 could be found. The applicant’s
continued insistence that the 1993 application was altered and that he had made
another application in 1995, was unproven and a collateral attack on that order
(at paragraphs 18 to 21).
[12]
Despite those points of agreement, the decision
of the Board had to be set aside because it did not deal in any way with the
applicant’s submissions about an alleged 1997 application. The applicant had said
that he discussed his children with the members of the review tribunal during
the hearing on June 19, 1997 and that they had asked him to submit a new
application. He claimed that he complied on June 21, 1997 and he provided to
the Pension Appeals Board a copy of that application. This claim is potentially
relevant since subsection 66(4) of the CPP gives the Minister both the power
and the duty to fix any denials of benefits that occur because of erroneous
advice or administrative error. It could therefore avoid the time limit in
subsection 74(2). However, the Board did not mention or consider those
submissions in any way and the Court of Appeal decided that such a failure was
unreasonable. It thus returned the matter to the Pension Appeals Board for determination
in accordance with its reasons.
[13]
Upon returning to the Pension Appeals Board, the
matter was adjourned at the request of the applicant and no new hearing has
been scheduled.
[14]
Meanwhile, the Department assigned a legislation
officer to investigate whether it had lost the 1997 application through
administrative error. His conclusion that Mr. Robbins did not submit any
application in 1997 is the decision now under review.
II.
Decision under Review
[15]
The legislation officer communicated the reasons
for his decision to the applicant by a letter dated November 13, 2012. He began
by summarizing the history of the applicant’s pension claims. When he got to
the decision of the Federal Court of Appeal, he noted that it had disposed of
the claims about the allegedly altered 1993 application and the alleged 1995
application. As such, he determined that the only issue was whether the
Department ever received the June 21, 1997 application.
[16]
According to the legislation officer, he began
his investigation by twice asking the applicant for any submissions or evidence
that he could provide. However, he received no response and so he made do with
the Department’s file on Mr. Robbins, which included all the material relating
to the 1993 pension application and all of the reviews and appeals that
followed. He also examined the record prepared for the Federal Court of Appeal,
as well as the Department’s policies and procedures that were effective around
the time the application was allegedly submitted.
[17]
He combed through the file but could not find an
original 1997 application. Instead, the only applications dated June 21, 1997,
that were in the file were copies that were both received after 1999; the first
was an exhibit to the application for leave to appeal to the Pension Appeals
Board filed on January 8, 2001 and the second was an exhibit to the application
for judicial review to the Federal Court of Appeal in 2008. Neither copy was
date-stamped. Since the invariable practice is to stamp all applications with
the date they are received, the officer concluded that neither was a copy of an
application that had been received by the Department. He also checked the
electronic database and nothing in it indicated receipt of the 1997
application.
[18]
The officer then noted that the form number of
the copies was “ISP1151E (05/97).” and he looked into the time period those
forms would have been available. The date, “05/97” meant that it was put into
use in May 1997 and he was advised by the Forms Management Group that it was
only replaced in May 2002. Thus, that form with that number would have been
available to the public at any time between those two dates.
[19]
Next, the officer reviewed operational
procedures and observed that, upon receipt of an application, the process at
the time would have involved checking that no other applications from the same
person had been received. If one had been, the Department would advise the
person of that. In this case, such a letter would have been sent if the
Department had received the 1997 application because the 1993 application was
still outstanding. However, the legislation officer found no communication to
that effect in the file and this also indicated to him that the 1997
application was never received.
[20]
The officer then explored the possibility that
the application might have been affected by a postal strike that began on
November 19, 1997. However, he discarded that theory because the application
was dated four months earlier and would have been received well before the
postal disruption if it had been sent.
[21]
He then examined the circumstances surrounding
the 1999 application and he gave importance to two facts. First, in the October
27, 1999 letter, the applicant said “it is now
understood” that he was entitled to benefits for his children, which the
legislation officer took to unequivocally mean that the applicant only recently
came to that revelation. Second, the applicant spoke to Val Ashbey by telephone
on November 29, 1999 and the applicant was asked at that time why he did not
apply earlier. Her notes of the conversation say that he responded that it was
a “matter of paranoia.” The legislation officer
drew two conclusions from this: (1) the applicant probably would have told Ms.
Ashbey of any earlier application in response to this question if any such
application had been made; and (2) the applicant told the truth that paranoia
prevented him from mentioning his children earlier.
[22]
Finally, the officer said that the Department
had a policy in place to verify all information about children if an applicant
indicates that he or she has any. However, no inquiries were made, which again
suggests that the applicant had not disclosed the existence of his children
before November 1999.
[23]
The officer concluded that there was probably
never any “application for disability benefits submitted
by you [the applicant] or received by the department dated June 21, 1997”.
Consequently, the Department did not commit any administrative error in regard
to it and subsection 66(4) of the CPP was not engaged.
III.
Issues
[24]
The applicant listed a number of issues. To
paraphrase, he accuses the legislation officer of ignoring or hiding documents
in the Department’s possession and making self-serving conclusions based on
conjecture and hearsay. He also says that the officer was not duly diligent
because he did not consider the many errors made by the Department which
prejudiced the applicant throughout the process. Among others, these alleged
errors include the following: refusing to process the applicant’s legitimate
claims in a timely fashion; hiding an appeal notice; intentionally delaying an
appeal; refusing the applicant’s attempts to correct documentation;
perniciously failing to disclose evidence or strategy; and providing
prejudicial misinformation. Further, he says the Department used legal trickery
to get its way.
[25]
For its part, the respondent said that there was
only one issue: “Was the decision of the Legislation
Officer that no administrative error occurred in connection with the alleged
June 1997 CPP application reasonable?”
[26]
The respondent has correctly identified the main
issue, but for the sake of analytical convenience, I will address the issues in
the following order:
A.
What is the standard of review?
B.
Did the officer err by only investigating
whether the 1997 application was received by the Department?
C.
Was the legislation officer’s decision
reasonable?
D.
What remedy is appropriate, if any?
IV.
Applicant’s Submissions
[27]
The applicant emphasizes that the Department
misplaced his original appeal notice in 1993 and then gave him erroneous advice
when they told him that he had never appealed it to begin with. In this, they
were not duly diligent and they confirmed that when they apologized for the
error on January 19, 1996. He argues that the legislation officer’s failure to
consider this meant that his investigation was neither duly diligent nor
reasonable.
[28]
The applicant also argues that the Department
was guilty of erroneous advice when it first denied his application, as he
eventually proved that he was entitled to the benefits and it had access to his
medical records which also proved it. Thus, their communications denying his
application was erroneous advice. Further, on February 21, 1997, they sent him
a statement of contributions saying that he would not receive any money even if
he was disabled and neither would his children since he had not made enough
contributions to the CPP to entitle him to it. He says this too was erroneous
advice.
[29]
The applicant also repeated his claims about the
1997 application, namely, he says that the members of the review tribunal
informed him at a hearing that he should apply for benefits for the children
and told him they would postpone their decision until he did so. He ended up
completing a new application and sending it to the CPP at that time.
[30]
The applicant goes on to say that the review
tribunal’s decision reversing the earlier decisions also supports his view that
the Department had not been duly diligent with respect to the earlier
decisions. Even after his entitlements were recognized, the applicant criticizes
the Department for sending him a letter addressed to Wayne Roberts, which he
says was misleading and erroneous advice. He eventually sought disclosure of
any materials the Department had on Wayne Roberts, with no success.
[31]
Following that, the applicant eventually made
his request regarding the children on October 27, 1999. The Department soon
informed him that the consent to judgment did not include the children because
the Department had never been made aware of their existence. The applicant
submits that this is outrageous trickery and that there were discussions about
the children preceding the signing of the consent.
[32]
The applicant then goes on to criticize various
aspects of the legislation officer’s investigation. First, he says the
legislation officer was wrong when he said that he had never seen the document
the applicant has attached as exhibit 9 to his current affidavit, since a copy
of the same document was in the record before the Federal Court of Appeal.
[33]
Second, he challenges the legislation officer’s
finding that the form “ISP 1151E (05/97)” was available to the public from May
1997 to May 2002. The applicant claims the date for those forms changes yearly
for the public and that only the Department has access to old forms. He
references a number of forms in the record and notes that only ones sent to him
by the Department had a date earlier than the year in which it was retrieved.
Further, the applicant submits that the advice from the Forms Management Group
was hearsay and anyway, only meant that the wording of the form changed in
2002; the date would have changed every year.
[34]
Third, the applicant finds the officer’s
reasoning about operational procedures baffling. In his view, the fact that he
was sent a letter on October 21, 1997, saying that the Department would not
appeal the review tribunal decision says nothing about whether he submitted an
application in 1997.
[35]
Fourth, the applicant considers one of the
legislation officer’s sentences at page 7 of the decision as an admission that
the Department had received a copy of the application in 1997.
[36]
Fifth, the applicant challenges the officer’s
deduction that the applicant only came to understand he was eligible for DCCB
benefits in October 1999 and he questions the relevance of that in any case.
[37]
Sixth, he reiterates his evidence that he has
referred to his children many times and he says the officer lacks common sense
and is misguided “as he desperately grasps at bits of
information for which he does not know the half-truth, but desires them to be the
truth for convenience.”
[38]
Seventh, the applicant criticizes the officer
for relying on the notes of Ms. Ashbey. They are clearly a summary and her
observation that his failure to mention the children was a “matter of paranoia” could be out of context. Further,
the applicant says that the Department records all conversations for training
purposes and that the officer should have listened to the recording if he was
going to assign any significance to the conversation.
[39]
Eighth, the applicant criticizes the officer’s
conclusion that the Department’s policies would make it likely that there would
be some record if the applicant had ever indicated he had children. In the
applicant’s view, the officer failed to consider all the erroneous advice and
administrative errors leading up to this point.
[40]
Altogether, the applicant submits that the
legislation officer was biased and engaged in pure conjecture targeted to reach
a predetermined conclusion. Further, he says that the officer contradicted
himself and admitted that they had the application by December, 1997.
[41]
For these reasons, the applicant asks this Court
to order that his children get benefits retroactive to their dates of birth and
also that he and his children receive interest on the sums due to them.
V.
Respondent’s Submissions
[42]
The respondent relies on several previous
decisions of this Court for the proposition that the standard of review for
subsection 66(4) decisions is reasonableness (see Manning v Canada (Human Resources Development), 2009 FC 523 at paragraph 23, [2009] FCJ No 646 (QL) [Manning];
and Jones v Canada (Attorney General), 2010 FC 740 at paragraph 32, 373
FTR 142 [Jones]).
[43]
The respondent emphasizes that to engage
subsection 66(4) relief, the Minister must be satisfied that an administrative
error or erroneous advice has caused the denial of a benefit (see Manning
at paragraph 38; and Jones at paragraph 35). The respondent says that
the applicant has the burden of proof (see Manning at paragraph 37; and Lee
v Canada (Attorney General), 2011 FC 689 at paragraph 81, 391 FTR 164 [Lee]).
[44]
Further, the respondent says that the Minister
has a wide discretion to choose a procedure for an informal determination of
the facts (see Leskiw v Canada (Attorney General), 2003 FCT 582 at
paragraphs 17 to 20, 233 FTR 182 [Leskiw (FC)], aff’d 2004 FCA 177 at
paragraph 7 [Leskiw (FCA)]). In this case, the officer chose to
investigate only the 1997 application because the Federal Court of Appeal
already disposed of the applicant’s other complaints.
[45]
Further, the respondent opposes the applicant’s
arguments that the legislation officer was not duly diligent. The officer
thoroughly reviewed all relevant documents and his decision letter was
detailed. He applied the law correctly but found no evidence whatsoever to
support the applicant’s claim that he submitted another application in 1997,
nor did the applicant produce any evidence for that claim. To the contrary, the
applicant’s conversation with Ms. Ashbey confirmed that the applicant had not
mentioned his children prior to 1999. The applicant may challenge some of the
officer’s inferences, but the respondent says the officer was entitled to make
them and they were reasonable. It is not the Court’s role to reweigh the
evidence (see Raivitch v Canada (Minister of Human Resources and
Development), 2006 FC 1279 at paragraph 18, 300 FTR 307).
[46]
The respondent then goes on to dismiss the
applicant’s other allegations as irrelevant and beyond the scope of the
investigation. It acknowledges the delay between 1993 and 1996, but says that delay
alone is insufficient; the Minister’s duty to take remedial action only arises
where the error has resulted in the denial of a benefit (see Manning at
paragraph 38; and Jones at paragraph 35). Here, the applicant’s claim
relies on his false assertion that he had submitted a corrected application in
1993 that mentioned his son, though the copy of this “corrected” page is not
even the same as the one the applicant had submitted in earlier proceedings and
neither is it date-stamped. The respondent says that allegation is not
supported by the evidence and has already been dismissed by the Federal Court
of Appeal.
[47]
For the same reason, the respondent dismisses
the applicant’s references to the alleged 1995 application.
[48]
The respondent also says that the applicant’s
arguments about medical records are wrong. The 1993 report of Dr. Segal does
say that the applicant had children, but the record does not support the
applicant’s claim that the Department had it by 1996. Anyway, the onus is on an
applicant to supply all the prescribed information about his or her children
and the Department has no obligation to seek out more information or to inform
the applicant of deficiencies (see Canada Pension Plan Regulations, CRC,
c 385, sections 43 and 52; Dossa v Canada (Pension Appeals Board), 2005
FCA 387 at paragraph 6, 344 NR 167; and Jones at paragraph 58). Even if
the Department had the medical report, the Department made no error by failing
to invite further information.
[49]
Finally, the respondent notes that there is no evidence
that the applicant mentioned his children at the review tribunal hearing on
June 19, 1997 or that the report from Dr. Segal was in evidence. Neither the
decision nor the notes of the tribunal members mention either.
[50]
The respondent asks that the application be
dismissed without costs.
VI.
Analysis and Decision
A.
Issue 1 – What is the standard of review?
[51]
In Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir], the Supreme Court noted at paragraph 53
that, “[w]here the question is one of fact, discretion or
policy, deference will usually apply automatically.” Here, the second
issue is discretionary and the third is factual; both attract deference.
[52]
Further, the Supreme Court of Canada went on to
say at paragraph 57 of Dunsmuir that, where previous jurisprudence has
determined the standard of review applicable to a particular issue before the
court, the reviewing court may adopt that standard. As the respondent points
out, several decisions of this Court have said that questions of fact and of
discretion should be reviewed on the standard of reasonableness for subsection
66(4) decisions (see Manning at paragraph 23; and Jones at
paragraph 32). Therefore, I will apply the reasonableness standard.
[53]
This means that I should not intervene if the
officer’s decision is transparent, justifiable, intelligible and within the
range of acceptable outcomes (see Dunsmuir at paragraph 47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59, [2009] 1 S.C.R. 339 [Khosa]). Put another way, I will set
aside the officer’s decision only if his reasons, read in the context of the
record, fail to intelligibly explain why he reached his conclusions or how the
facts and applicable law support the outcome (see Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 16, [2011] 3 S.C.R. 708). As the Supreme Court held in Khosa at
paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Did the officer err by only
investigating whether the 1997 application was received by the Department?
[54]
Some of the applicant’s arguments raise the
question of whether the officer erred by limiting the scope of his investigation
to the alleged 1997 application. The officer said he did this because the
Federal Court of Appeal disposed of the applicant’s claims that he had
submitted a revised application in 1993 that mentioned his son and an
application for DCCB in 1995. Technically, it was actually a 2007 order from
the Pension Appeals Board that disposed of those claims and the Federal Court
of Appeal merely confirmed it, but either way, it is true that those claims
were no longer in issue. Therefore, I agree with the respondent that the
officer did not commit any error by ignoring the earlier claims.
[55]
Construing the applicant’s complaints more
broadly, however, it is true that the Department made some administrative
errors in relation to the applicant’s original application. Although some were
just clerical errors (such as substituting “Roberts” for “Robbins”), some were
more significant. As one example, the Department admits that it misplaced the
applicant’s original notice of appeal in 1993, causing a two and a half year
delay. However, as the respondent correctly noted, for an administrative error
to justify the Minister’s intervention pursuant to subsection 66(4), it must
cause the denial of a benefit (see King v Canada (Attorney General),
2010 FCA 122 at paragraph 11, [2010] FCJ No 634 (QL); and Jones at
paragraph 35). The mislaid appeal document related to an application that never
revealed that the applicant had any children and it therefore did not cause the
denial of the retroactive DCCB.
[56]
Further, the applicant argues that since the
review tribunal eventually found in his favour and the Department later agreed,
the Department’s denials of his original application were erroneous advice.
However, that is not the type of erroneous advice contemplated by subsection 66(4)
(see Canada (Attorney General) v King, 2009 FCA 105 at paragraphs
31 and 32, [2010] 2 FCR 294). Incorrect decisions can be challenged through an
ample appeal process, which the applicant has already taken advantage of to
secure retroactive benefits for himself back to the date of his disability. In
any event, here too there is no causal link between the so-called erroneous
advice and the denial of the retroactive DCCB.
[57]
The most that could be said is that, had it not
been for early administrative errors such as the misplaced appeal document, the
applicant might have found out that his children would be entitled to DCCB
sooner and applied sooner. However, that is purely speculative.
[58]
Further, it appears that the Department started
this investigation of its own initiative. When submissions were invited from
the applicant, he declined to participate. The legislation officer merely
confined his investigation to the areas that were of concern to the Federal
Court of Appeal. It was within his discretion to do so, especially since the
applicant had not raised any other concerns. That was reasonable.
C.
Issue 3 - Was the legislation officer’s decision
reasonable?
[59]
Since the legislation officer was entitled to
only investigate whether the alleged 1997 application was received by the
Department, the question becomes whether it was reasonable for him to conclude
that it did not.
[60]
The respondent contends that applicants bear the
onus to prove that a benefit was denied because an administrative error
occurred or because erroneous advice was given. That proposition is supported
in the case law (see Manning at paragraph 37; and Lee at
paragraph 81). However, I must confess that I do not think it very helpful to
speak of onuses for this type of decision. Generally speaking, a contributor
can give his own version of what he did or what advice he was given, but the
best evidence of an administrative error or erroneous advice will often either
be in the Department’s file or gathered by consultation with the Department’s
employees. In both cases, the Department can access the evidence much more
easily than the contributor can.
[61]
Further, talk of onuses suggests that subsection
66(4) creates some adversarial process. It does not. Ultimately, the CPP was
enacted to benefit contributors. If errors in how the Act is administered are
impeding that objective, then the Department has an interest in uncovering and
correcting those errors. Thus, once a contributor has said that he or she was
given erroneous advice or that an administrative error occurred, it may indeed
be unfair or unreasonable for the Department not to collect evidence from its
own files and about its own procedures. Indeed, that much is demanded by its
policy guidelines (Affidavit of Matthew Potts, Exhibit DD: “Erroneous Advice/Administrative Error for
Applicants/Beneficiaries who may have been Denied Benefits (subsection 66(4) of
the CPP and section 32 of the OAS Act)” (April 2009), s 5.2 [EA/AE
Policy])). Therefore, while it may be technically true that the onus is on the
applicant to prove an administrative error or erroneous advice, it is
analytically unhelpful to the extent that it suggests that the Department can
simply do nothing.
[62]
That said, those comments should not be taken as
criticism of the Department’s conduct in this case. To the contrary, I agree
with the respondent that the legislation officer was very thorough. Even in the
absence of submissions, he reviewed everything that the Department had that was
related to the applicant’s case. The officer did not find any direct evidence
of the application, nor did he find any of the corroborating evidence that
would have been expected had an error been made. Moreover, he concluded that
the applicant’s behaviour surrounding his 1999 application was inconsistent
with his later claim that he had applied earlier in 1997. Taken altogether,
that was reasonable, but I will address each of the applicant’s specific
concerns in turn.
[63]
First, the applicant said that his exhibit 9,
the excerpt from his allegedly corrected 1993 application, was in the record.
It was not. The respondent is correct that the document the applicant submitted
to the Court of Appeal is different in many respects, the most obvious being
that the first one did not have his son’s birth date filled in, while this new one
does. Anyway, the 1993 application was irrelevant for the reasons already given
and the legislation officer was not required to consider it.
[64]
Second, the applicant challenged the officer’s
conclusion that the application form used for the 1997 application was
available from May 1997 to May 2002. However, his argument that the version
number is changed every year is based only on supposition and coincidence and
it would be strange if true. From an administrative perspective, it is logical
to include the date of last amendment on the form, since it alerts people of
when the form changed and provides an easy way to distinguish between different
versions of the same form. It makes much less sense to include in the version
number the year in which that particular form was printed, since then there is
no way to quickly tell whether forms with different version numbers are
actually different. Further, it would be wasteful to require someone to update
the version number of the forms every month or year, reprint them and discard
all the old ones.
[65]
As well, the complaint that the advice from the
Forms Management Group was hearsay has no foundation. This was an informal
investigation and the rules of evidence for a court proceeding do not apply.
Anyway, it was not hearsay; it was communicated directly to the decision-maker
by a person with personal knowledge of the facts. As well, the applicant had
declined the officer’s invitations to participate in the process, so he was not
entitled to an opportunity to respond. It was reasonable for the legislation
officer to rely on the Forms Management Group’s representations and to conclude
that the forms would have been available anytime between May 1997 and May 2002.
[66]
Third, I agree with the applicant that the
Department’s decision not to appeal the review tribunal’s decision is
unconnected to the alleged 1997 application, but that is not what the officer
was saying. The officer’s reasoning was this:
•
Operational procedures require the Department to
contact applicants when they receive duplicate applications;
•
The first time the Department contacted the
applicant after the date of the alleged application was by a letter on October
21, 1997;
•
That letter did not mention any application but
would have if a duplicate application had been received;
•
Therefore, the Department did not likely receive
a duplicate application in late June 1997.
[67]
In essence, all the officer was saying was that
corroborating evidence that would be expected had the application been received
did not exist and that made it more likely that the application was not
received. That is reasonable.
[68]
Fourth, the applicant pointed out that the
officer said the following:
I find that, on a balance of probabilities,
there was no application on your file between the time your original
application was received in 1993 to January 2001, when the department received
a photocopy of the June 1997 application form that you submitted with your
application for leave to appeal to the Pension Appeals Board.
[69]
The applicant says that since he applied for
leave to appeal to the Pension Appeals Board between December 19, 1997 and
February 26, 1998, the officer admitted in this sentence that the Department
had the application well before 1999.
[70]
However, although the applicant’s first
appeal to the Pension Appeals Board was in early 1998, the officer was
referring to the applicant’s second appeal to the Pension Appeals Board,
which was filed on January 8, 2001. That is obvious from the sentence itself,
which explicitly says January 2001 and it is obvious from the fact that the
officer earlier identifies the application to which he is referring near the
bottom of page five of his decision letter. There is no contradiction here.
[71]
Also, part of the applicant’s argument was that
he could not see how that conclusion could be derived from the October 21, 1997
letter alone. However, as I read that sentence, that conclusion was based on
all of the analysis preceding it, not just the operational procedures section.
[72]
Fifth, the applicant asked how the officer could
conclude that the applicant only discovered that his children were entitled to
DCCB in October 1999. In the paragraph where the officer made that observation,
he quoted from a letter the applicant sent on October 27, 1999, which said that
“… it is now understood that the Appellant did not
receive, yet qualified for, an amount of $171.00 per month for each of his
children …” The officer bolded the words “it is now understood” so it is
clear that he based his conclusion on the applicant’s use of the word “now”.
That is a reasonable inference and it is not for me to reweigh that evidence.
[73]
As for its relevance, I agree with the applicant
that an admission that he did not realize his children were entitled to DCCB
until 1999 is not alone an admission that he did not submit an application
disclosing their existence in 1997. However, the officer did not say it was. In
fact, the officer does not explicitly connect his observation to anything, so
its relevance or irrelevance does not affect the reasonableness of the decision.
Anyway, it could be relevant in that a person who knows about the child
benefits would have been more likely to disclose the existence of his children
than someone who does not. It also tends to cast doubt on the applicant’s story
that the members of the review tribunal told him to apply again and include his
children on the application, since they would have likely disclosed possible
entitlements.
[74]
Sixth, the applicant said the officer was biased
and lacked common sense. He is wrong on both counts. The officer conducted his
investigation thoroughly and professionally. He came to a conclusion that the
applicant does not like, but that does not mean that he was biased. The officer
was required to base his decision on the evidence, and there was absolutely no
supporting evidence for the applicant’s claim. Further, the fact that the
Department made administrative errors in relation to the applicant’s file in
the past does not make it any more or less likely to make an administrative
error in the future. It was irrelevant, and the officer did not “fail the test of common sense” (applicant’s record at
76, paragraph 133) by failing to accord those earlier errors any weight.
[75]
That said, the applicant’s story itself was
evidence and I do have one concern about the EA/AE Policy. At section 4.2.3,
the policy says:
The applicant/beneficiary’s unsupported
evidence cannot be accepted as the only means of determining if erroneous
advice was provided or an administrative error was made. There must be
supporting evidence.
[76]
I am skeptical of the guidance that a
beneficiary’s version of events can never alone prove that an error likely
occurred. The testimony of a single, credible witness can be enough to convict
people of crimes beyond a reasonable doubt (see R v MAD, [1997] AJ No
287 (QL) at paragraph 19, 196 AR 189 (CA)), so why can it never be enough to
prove that someone in the Department probably made an honest mistake? Further,
it is easy to imagine situations where the provision of erroneous advice or an
administrative error will not leave a paper trail. Therefore, it could be an
error for an officer to dismiss claims that he believes solely because there is
no corroborating evidence, especially where no corroborating evidence could
reasonably be expected.
[77]
Here, however, I do not think it makes the
decision unreasonable. Although the officer never actually said whether or not
he believed the applicant, it is implicit in his reasons that he did not. More
than just a lack of corroborating evidence, he also viewed the notes of Ms.
Ashbey as positive evidence that the 1997 application was not submitted before
1999. Therefore, the policy did not lead to error in this case, but I caution
that it could in future cases.
[78]
Seventh, the applicant also challenges the
officer’s reliance on Ms. Ashbey’s notes. Ms. Ashbey asked the applicant why he
did not mention the children earlier and her notes say that the applicant
responded that it was a “matter of paranoia.” The
applicant says that comment could be out of context and it is true that a
recording would have been better. However, there is no evidence that that
conversation was recorded, nor that it would have been kept for so long.
Anyway, though it is possible that the notes are inaccurate, they were made at
the time of the conversation and there is no evidence to suggest that they were
incorrect. It was reasonable for the officer to attach weight to them and it is
not for me to reweigh that evidence now. Anyway, the officer’s conclusion was
based as much on what the applicant did not say as what he did. He reasoned
that the applicant would likely have said that he had disclosed the existence
of his children in response to Ms. Ashbey’s question if he had actually
submitted the 1997 application. The officer drew an adverse inference from the
fact that he did not. That was reasonable.
[79]
As for the applicant’s eighth complaint, the
officer was not negligent. He reviewed all the relevant evidence and his
decision letter was comprehensive and explains his reasoning well. His
conclusions are supported by the evidence and the law and I understand how he
reached them. The decision was reasonable.
[80]
Finally, though it is not directly relevant
since it did not feature in the officer’s reasons, I agree with the
respondent’s arguments about Dr. Segal’s report, which is the only one which
mentions that the applicant had children. There is no evidence that the
Department had it in 1997 and the only copies of it in the record show it as
having been printed on January 29, 1999 or July 8, 2008. Further, the review
tribunal, in its decision on September 12, 1997, specifically commented that
they would have liked to set an earlier start date, but they had no medical
evidence to support it. That suggests that they did not have Dr. Segal’s
report, which also casts doubt on the applicant’s story that his references to
it inspired the review tribunal to recommend he submit a new application.
Neither do the tribunal members’ notes mention Dr. Segal’s report or the
applicant’s children. Anyway, the allusion to the children in Dr. Segal’s
report is brief and it does not meet the requirements in the Canada Pension
Plan Regulations in sections 43 and 52.
[81]
As well, the statement of contributions dated
February 21, 1997 mentions that each of his dependent children will not receive
any payments, but it is a form letter. It does not prove that the Department
knew that the applicant had dependent children.
[82]
Ultimately, the officer reasonably found that
the applicant did not disclose the existence of his children because of his medical
conditions. Sadly, this means that the children did not receive the support
they deserved from the CPP because of the very disability which should have
entitled them to it. However, those issues already went to the Federal Court of
Appeal and it has confirmed that the distribution of further retroactive
benefits is time-barred by subsection 74(2), regardless of any incapacity on
the part of the applicant.
[83]
The only issue before me was whether the
legislation officer reasonably decided that no application was made in 1997 and
I am satisfied that he did. I therefore dismiss this application for judicial
review.
[84]
Because of my conclusion, I need not deal with
Issue 4.
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