Date: 20040406
Docket: T-1427-03
Citation: 2004 FC 530
Toronto, Ontario, April 6th, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
DARLENE COWTON
Applicant
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] The Applicant was disabled in a work related injury and, as a result, has been receiving disability benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP) since 1987. Effective June 2002, she has also received disabled contributor benefits on behalf of her granddaughter, Mekayla Cowton. The Applicant's adult daughter, Rilene Cowton gave birth to Mekayla on March 21st, 1996. The Applicant has had physical custody of Mekayla since her birth. Since September 18th, 1996, by Court Order, she has also had joint custody of Mekayla with her daughter.
[2] The Applicant claims to have initially contacted Human Resources Development Canada (HRDC) in 1996 in order to inquire into benefits for her granddaughter. At this time, she reports having received an application form for the benefits. While completing the application, she again claims to have contacted HRDC for clarification of her status with respect to her relationship to her granddaughter. She claims an employee at HRDC advised her that, as a grandmother, she was not be entitled to benefits for Mekayla.
[3] In early 2003, the Applicant contacted HRDC again and was informed that she was entitled to benefits for Mekayla. She was also informed that she should request retroactive benefits on the basis that she had received erroneous advice in 1996. The Applicant followed this advice and made an application with an accompanying explanation which was received by HRDC on May 15th, 2003.
[4] HRDC informed the Applicant by Notice of Entitlement, dated June 6th, 2003 that benefits were awarded to her effective June 2002, 11 months retroactive from the date of receipt of her application. These benefits were granted pursuant to section 74.(2) of the CPP.
[5] A review of the Respondent's record reveals that, although there was a record of action taken on the Applicant's account on January 5th, 1996 and February 26th, 1996, these actions were with regard to other issues.
[6] The affidavit of the reviewing officer states that a record is normally kept by HRDC of calls made to the telephone inquiry unit and when applications are sent to clients. There was nothing in the Applicant's file respecting inquires for benefits for her granddaughter nor is there a record of an application being sent to the Application in 1996.
[7] On June 27th, 2003, the Applicant was advised in writing that her allegation had been thoroughly reviewed and it had been determined that she had not received erroneous advice from an HRDC official.
[8] On August 6th, 2003 the Applicant filed an application for judicial review of the Agent's decision.
Issues
1) What is the appropriate standard of review?
2) Did the Respondent commit a reviewable error when denying the Applicant's request?
Relevant Legislation
Canada Pension Plan, R.S.C. 1985, c. C-8
s.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.
s. 74 An application for a disabled contributor's child benefit or orphan's benefit may be made on behalf of a disabled contributor's child or orphan by the child or orphan or by any other person or agency to whom the benefit would, if the application were approved be payable under this Part.
Issue (1)
[9] In Kissoon v. Canada (Minister of Human Development Resources), [2004] F.C.J. No. 69 at paragraph 4 Snider J. concluded that
The decision of the Minister under section 66(4) of the CPP is discretionary. Although the Minister "shall" take remedial action that it considers appropriate, this duty arises only once the Minister is satisfied that erroneous advice has been given or that an administrative error has occurred. The requirement to take remedial action is conditional and, therefore, does not fetter the Minister's discretion to first satisfy herself that an error has been made (Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2). Given the discretionary nature of the Minister's decision, the standard of review is patent unreasonableness (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at 24). This means that the Minister's decision should only be set aside if it is "made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors" (Maple Lodge Farms, supra).
[10] I fully concur with Snider J. and accordingly I will apply the patently unreasonable standard in this application.
Issue 2
[11] The Applicant makes the argument that the documentation by HRDC of communication with clients is not satisfactorily complete or reliable and should not be found to be determinative of the claim in this case. She points out that the W1 screen which is attached as exhibit G to the Respondent's Record does not document the inquires that she made in 1996 respecting her entitlements. She also claims that the Record does not report that an application was sent to her in either 1996 nor in 2003. The only recorded conversations were those between the Agent and the Applicant regarding the second application and the retroactive benefits.
[12] The Applicant also produced a partially completed application from 1996 as evidence that she was in the process of applying at that date and only ceased from doing so when she received the alleged wrongful advice from an HRDC employee.
[13] The computer records of 1996 show that the Applicant was in touch with HRDC at that time, but contain no record of a claim being made regarding her granddaughter. There are no computer records for the period 1996-2000.
[14] The application form used in 1996 is the same as that used today. Thus, the fact that there is a partially completed form in the Applicant's possession does not establish when this form was filled out.
[15] No one at HRDC has a personal interest in whether the Applicant's claim is allowed or not, thus there is no incentive to alter the records. There is also no evidence, other than the Applicant's assertion, that any communications were not recorded.
[16] In the absence of (1) any evidence in HRDC's records that inquiries regarding entitlements for the Applicant's granddaughter were made in 1996, let alone that wrong advice was given, and (2) any evidence as to bad faith, the exercise of discretion for an improper purpose, reliance on irrelevant considerations or failure to consider the relevant evidence, it was not unreasonable for the Respondent to deny the Applicant's claim.
[17] Consequently I do not find that Respondent committed a reviewable error.
Conclusion
[18] For the above reasons, this application will be dismissed.
ORDER
THIS COURT ORDERS that this application be dismissed. There will be no order as to costs.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1427-03
STYLE OF CAUSE: DARLENE COWTON
Applicant
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 5, 2004
REASONS FOR ORDER
AND ORDER BY : von FINCKENSTEIN J.
DATED: APRIL 6, 2004
APPEARANCES:
Ms. Darlene Cowton FOR THE APPLICANT,
ON HER OWN BEHALF
Ms. Rose Gabrielle Birba FOR THE RESPONDENT
SOLICITORS OF RECORD:
Darlene Cowton
Caledon East, Ontario FOR THE APPLICANT,
ON HER OWN BEHALF
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20040406
Docket: T-1427-03
BETWEEN:
DARLENE COWTON
Applicant
and
HUMAN RESOURCES DEVELOPMENT CANADA
Respondent
REASONS FOR ORDER
AND ORDER