Date: 20040714
Docket: T-1000-03
Citation: 2004 FC 985
CALGARY, Alberta, Wednesday, the 14th day of July, 2004.
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ROBERT BARNES
Applicant
and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
AND THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] In the present case, I find that a delegate of the Minister of Human Resources and Development made a reviewable error in her decision of June 6, 2003 ("the decision"), rendered under the Canada Pension Plan Act, R.S.C. 1985, c. C-8 ("the Act"). Given the nature of the error, for the reasons which follow, I conclude that the decision is patently unreasonable.
[2] The present case concerns disability benefits paid to the Applicant beginning in 1986 resulting from a serious injury he suffered. These benefits were suspended in 1998 as the Minister decided the Applicant became disentitled to receive the benefits as of February, 1988 because he had received employment income while receiving the benefits. As a result, in March, 2000, the Minister demanded repayment of an accrued overpayment of $101,780.80.
[3] As to the process whereby the decision was rendered, the decision is the final result of a multi-staged review. The final stage of the review is consideration of the overpayment issue by a Review Tribunal acting pursuant to s.82 of the Act. A multiplicity of arguments have been made as to the ambit of the Minister's obligations to deal with the overpayment issue in the decision, and also the jurisdiction of the Review Tribunal to consider the issue, all of which has merged into agreements reached during the course of oral argument.
[4] It is agreed that the Minister has jurisdiction under s. 66(3)(d) of the Act to render a decision concerning "erroneous advice". This provision reads as follows:
| 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 Human Resources 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. |
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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 des ressources humaines 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 exc |
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[Emphasis added]
[5] The decision rendered accordingly reads as follows:
Re: Robert Barnes
SIN: 629-789-009
Subject: Eligibility ceased effective March 1988
Dear Mr. Misak [the Applicant's counsel]
In light of the Review Tribunal decision and its recommendation to the Minister to reconsider our position regarding Mr. Barnes' claim of erroneous advice, we have reviewed Mr. Barnes' file to determine if such advice was given to him.
As was pointed out in Maureen Killaran's letter of November 20, 2000, "the Minister may remit all or any portion of the amount of the excess of the benefit payment if the excess payment is the result of erroneous advice....on the part of the Minister or an official of the Department of HRD acting in an official capacity in the administration of this Act".
Based on a review of the information on file including the Review Tribunal decision, we have concluded that it is highly unlikely that Mr. Barnes would have been given that information. Therefore, no error has been established.
It should be noted that Mr. Barnes was given his appeal rights in the Review Tribunal decision of December 16, 2002.
Sincerely,
P. O. Brien
Manager, NHQ Disability Benefits
[Applicant's Application Record, p. 10]
[6] It is agreed that the Review Tribunal had no jurisdiction to make findings with respect to the issue of "erroneous advice", but chose to do so on a gratuitous basis. It is agreed that, regardless of the Review Tribunal's jurisdiction to make findings with respect to "erroneous advice", the Minister's delegate took the Review Tribunal's findings on this issue and put them into play in reaching the decision.
[7] With respect to the Applicant's understanding and credibility, the Review Tribunal said as follows:
It was the Tribunal's view that the Appellant was credible throughout the hearing and that the documentation established that he had acted in good faith in providing medical authorization when required in 1997 and confirmed that he had been working. The Tribunal was of a view that the Appellant had cooperated fully when information was requested from him at his correct address.
The Appellant took the further view that there had been an administrative error on the part of the Minister and it was his evidence and his mother's that he attended a meeting at the Harry Hays Building in Calgary in 1986 with a representative of Human Resources Development Canada. It was the Appellant's evidence that he was specifically told that his benefits were for life. He indicated that he specifically asked if he could do work with his head and whether he would still be considered disabled and was told that that was alright. The Appellant produced his mother, Mrs. H. Barnes, who attended the meeting at the Harry Hays Building and recalled that her son was told that the benefits were for his life.
...
It was the Tribunal's view that the Appellant had acted in good faith throughout this matter and was also of a view that there was clearly a mis-communication and that the evidence of the Appellant's mother could imply that the Appellant left the meeting at the Harry Hays Building with a different impression than was possible in the legislation.
[Applicant's Application Record, pp. 14 - 15]
[8] In reviewing the decision for error, I find five essential features require consideration. The first four are as follows:
1. throughout the process, the Applicant said that he received the erroneous advice that his disability benefits were granted for life;
2. there is no direct evidence on the record that could lead to a finding that he was not told this;
3. throughout the process, the Minister chose to believe it is unlikely that the Applicant would have received erroneous advice;
4. after questioning the Applicant and his mother, the Review Tribunal found that the Applicant is credible and acted in good faith.
[9] The fifth essential feature under consideration is a statement made by the Minister's delegate in her affidavit, which I take as part of the decision, where she states at paragraph 23 as follows:
I concluded that Mr. Barnes did not provide any evidence that he had received erroneous advice from the Minister. His allegations were unsubstantiated.
[Emphasis added ]
[Applicant's Application Record p. 23]
[10] It is clear that there is evidence on the record of erroneous advice being given in the form of the Applicant's own uncontradicted statements, the last of which being given to the Review Tribunal and supported by his mother, about which the Review Tribunal made a finding of positive credibility. It would certainly have been open to the Minister's delegate to acknowledge this evidence and then to go on to assign its weight. But, I find it is an error apparent on the face of the decision to say that there was "no evidence". As a result I find that the error renders the decision as patently unreasonable.
O R D E R
Accordingly, I set the decision aside and refer the matter back to a different Minister's delegate for reconsideration, on the following directions:
1. The Minister's delegate specifically consider all evidence on the question of Mr. Barnes' understanding of the basis for, and terms of, the granting of the disability benefits; and
2. The Minister's delegate specifically consider the findings of the Review Tribunal with respect to Mr. Barnes' and his mother's credibility.
As he is successful in the present application, I award costs to Mr. Barnes according to Tariff B, Column 3.
"Douglas R. Campbell"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1000-03
STYLE OF CAUSE: Robert Barnes v Human Resources Development
and The Attorney General of Canada
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: July 13, 2004
REASONS FOR ORDER AND ORDER: Campbell, J.
DATED: July 14, 2004
APPEARANCES:
Mr. Michael D. Mysak FOR APPLICANT
Mr. Michel Mathieu
Ms. Rose-Gabrielle Birba FOR RESPONDENTS
SOLICITORS OF RECORD:
Bennett Jones LLP
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENTS