Federal Court Decisions

Date: 20061218

Docket: T-2004-05

Citation: 2006 FC 1513

Ottawa, Ontario, December 18, 2006

PRESENT:     The Honourable Barry Strayer

BETWEEN:

JULIA GRACEFFA and

CARMELLO GRACEFFA

Applicant(s)

and

THE MINISTER OF SOCIAL

DEVELOPMENT CANADA

Respondent(s)

REASONS FOR JUDGMENT AND JUDGMENT

Introduction

[1]               This is an application for judicial review of a decision on behalf of the Minister of Human Resources Development Canada (now Minister of Social Development Canada) (Minister) dated October 6, 2005.  The decision conveyed in a letter stated that the Minister had concluded that on the balance of probabilities there had been no erroneous advice or administrative error in respect of the processing of a claim for disability benefits by one of the Applicants, Julia Graceffa, and that therefore the Minister would not exercise his discretion under subsection 66(4) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP).  That subsection provides as follows:

[2]               Julia Graceffa has stated in an application for disability benefits that she has a grade 12 education and that she had worked as a secretary in Burlington, Ontario from 1976 to 1984.  She first submitted an application for disability benefits under the CPP on August 26, 1987, stating that she had been injured in an automobile accident on November 11, 1984.  To be eligible for a disability pension in her case it would require that she had contributed to the CPP during 5 of the 10 years preceding her date of disability.  The end of this period of eligibility is called the Maximum Qualifying Period (MQP).  However, one can expand the number of years a claimant is deemed to have contributed if the claimant declares that she/he was in receipt of family allowance payments and was looking after the children up to the age of 7.  To achieve this, the claimant must file a Child Rearing Drop Out (CRDO) declaration, which will be discussed further below.  She filed such a declaration at the Hamilton Client Service Center in respect of her application of August 26, 1987.  Her MQP was then established at December 31, 1989.  The Respondent concluded that she had not suffered a disability as defined by the CPP.  On June 11, 1991 she made a second application for disability benefits, attributing her disability, as I understand it, to the prolonged effects of the same automobile accident.  This application was accompanied by another CRDO.  In processing this claim, her MQP was extended to December, 1997 from December, 1989 because of the application of the CRDO extension of her deemed contributing years.  The Respondent again rejected this claim on the grounds that she had not established disability.  She submitted a Notice of Appeal to the Review Tribunal which was delivered to it on September 17, 1993.  That appeal was not heard by the Review Tribunal panel until October 11, 1995 at which time it was dismissed. 

[3]               In the meantime, her husband, the Applicant Carmello Graceffa, applied for disability benefits on September 29, 1993.  He and his wife completed the CRDO declaration in which it was stated that he was the spouse of a family allowance recipient, that he remained at home to care for the children, and that there was no period between birth and the seventh birthday of any of the children listed in which he did not remain at home to care for the children.  Julia Graceffa signed the following declaration:

I declare that, for the child(ren) indicated above, I have not and will not be making any claims for the Child Care Dropout for the period(s) accredited to my spouse.

Carmello Graceffa, the claimant, signed the following declaration:

I understand that it is an offence to make a false or misleading statement in this declaration. I hereby declare that to the best of my knowledge and belief, the information given in this declaration is true and complete.

This form is also headed by an explanation of the Child Care Dropout provision which, it says,

applies to either the Family Allowances recipient or to the spouse of a Family Allowances recipient who remained at home to raise children under the age of seven but not to both.

Mr. Graceffa delivered his application in person to the Hamilton Client Service Center.  Mrs. Graceffa did not accompany him.  The net effect of the CRDO filed with Mr. Graceffa’s application was that he was regarded as having been the caregiver at home of children under the age of 7.  While he did not need the extension of his MQP qualifying period to be eligible for benefits, his period of contribution was deemed to have been longer as a result of it and he therefore obtained a larger disability benefit.

[4]               Mrs. Graceffa made a third application for disability benefits in November, 1996.  Her application which was mailed in was completed on the basis that she had been the caregiver of the children during the period in question which would have extended her MQP to end in December, 1997.  Her application was processed on this basis but was dismissed by the Respondent for lack of proof of qualifying injury.  This decision was confirmed by the Review Tribunal and she then obtained leave from the Pension Appeal Board to appeal to it.  When this appeal was being processed, staff of the Respondent made a cross-reference to Mr. Graceffa’s claim (as permitted by law in the case of an appeal to the Pension Appeal Board) and found that he had successfully claimed the benefit of the CRDO in respect of his application of September, 1993 and that Mrs. Graceffa had signed a waiver of the CRDO in support of that application.  The Respondent therefore took the position that, since only one spouse can claim the CRDO, and as Mr. Graceffa had already had the benefit of it, she could not claim it and therefore her MQP had ended, as originally calculated, on December 31, 1989.

[5]               Subsequently, Mrs. Graceffa requested the Minister to exercise the powers under subsection 66(4), to find that she and her husband had been erroneously advised, and recalculate her MQP to end on December, 1997.  The essence of her complaint is that her husband was not properly counselled when he submitted his application in 1993 at the Hamilton Client Service Center without her being present.  She contends that because in response to question 15 of the questionnaire he completed, he indicated that an application had been made on behalf of his children by his wife, this should have alerted staff to check her previous claims.  Such research could have revealed that she had filed a CRDO with each application claiming that she was the caregiver of the children up to the age of seven and this would have indicated that her husband should not make such a claim.  As he did not require the benefits of the CRDO to be entitled to some benefits, he should have been advised not to have the CRDO completed by his wife in connection with his application acknowledging that he and not she had been the caregiver.

Analysis

[6]               The Respondent raised an objection at the outset that the husband, Carmello Graceffa, should not be a party to this application for judicial review of the Minister’s decision not to exercise his discretion under subsection 66(4) in Julia Graceffa’s favour.  The request for relief under that subsection was made in her name and therefore, in the view of the Respondent, only she has standing to seek judicial review of the Minister’s refusal.  Having regard to the informal nature of the processes for invoking subsection 66(4), that the erroneous advice complained of was allegedly given to Mr. Graceffa, and that he has offered the retroactive removal of the extra benefits he received by taking advantage of the CRDO, I think that it is appropriate that he be a party to a judicial review of the Minister’s decision. 

[7]               The issue here seems to be one of fact as to whether the decision to deny the CRDO to Mrs. Graceffa was a result of erroneous advice.  The parties agree that the standard of review should be patent unreasonability for such a finding of fact.  I agree.  There is every indication in subsection 66(4) that deference should be shown to the Minister’s decision.  What the section calls for is the Minister being “satisfied” that a certain state of facts exists.  There is no privative cause.  The purpose of the section appears to be to give the Minister wide discretion as to remedial action and to an informal determination of the facts.  This view is also consistent with decisions of the Federal Court of Appeal in Leskiw v. Canada (Attorney General), [2004] F.C.J. No. 803 (C.A.) and Kissoon v. Canada (Minister of Human Development Resources), [2004] F.C.J. No. 1949.

[8]               Applying that standard, I am unable to say that the decision of the Minister here was patently unreasonable.  The Minister’s delegate had available the assertions by Mrs. Graceffa that neither she nor her husband had been warned about the implications of him claiming the CRDO in connection with his application.  On the other hand, the Minister’s delegate was aware of the normal practice when claimants apply personally for benefits under the CPP:  namely, that they are interviewed and the forms are explained.  There is no specific evidence of wrong advice being given.  The Minister’s delegate would have before him/her two CRDO declarations prior to Mr. Graceffa’s application signed by Mrs. Graceffa in connection with her own claims for disability benefits, in each of which she asserted that she had been the person who stayed home to look after the children thus qualifying her for additional qualifying period.  In contrast to those declarations, there was the declaration she signed in support of Mr. Graceffa’s claim in 1993 wherein she declared that he was the one who cared for the children during the relevant period and that she would not “be making any claims for the Child Care Dropout for the period(s) accredited to my spouse”.  Mrs. Graceffa completed grade 12.  She worked as a secretary for 8 years in Ontario.  The Minister’s delegate might well have concluded that Mrs. Graceffa was able to understand ordinary documents, that she was familiar with this form and was aware that only one spouse could claim the benefits of the CRDO.  Taking this into account, it was certainly open to the Minister’s delegate to conclude that the Applicants were aware of the consequences of proceeding as they did and that they were not misled by erroneous advice.  At the very least, it cannot be said that this conclusion was obviously not one which a reasonable person could reach.

Disposition

[9]               I will, therefore, dismiss the application for judicial review without costs.

JUDGMENT

            THIS COURT ADJUDGES that the application for judicial review be dismissed without costs.

“ B. L. Strayer ”

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                          T-2004-05

STYLE OF CAUSE:                          JULIA GRACEFFA ET AL

                                                            v.

                                                            MINISTER OF SOCIAL DEVELOPMENT CANADA

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      4-DEC-2006

REASONS FOR JUDGMENT

AND JUDGMENT:                          JUSTICE STRAYER

DATED:                                             December 18, 2006

APPEARANCES:

SOLICITORS OF RECORD: