Leskiw v. Canada (Attorney General)

Leskiw v. Canada (Attorney General) Court (s) Database Federal Court of Appeal Decisions Date 2004-05-03 Neutral citation 2004 FCA 177 File numbers A-192-03 Notes Digest Decision Content Date: 20040503 Docket: A-192-03 Citation: 2004 FCA 177 CORAM: STRAYER J.A. ROTHSTEIN J.A. MALONE J.A. BETWEEN: DANNY LESKIW Appellant and ATTORNEY GENERAL OF CANADA Respondent Heard at Toronto, Ontario, on Wednesday, April 28, 2004 JUDGMENT delivered at Ottawa, Ontario, on Monday, May 3, 2004 REASONS FOR JUDGMENT BY: STRAYER J.A. CONCURRED IN BY: ROTHSTEIN J.A. MALONE J.A. Date: 20040503 Docket: A-192-03 Neutral citation: 2003 FCA 177 CORAM: STRAYER J.A. ROTHSTEIN J.A. MALONE J.A. BETWEEN: DANNY LESKIW Appellant and ATTORNEY GENERAL OF CANADA Respondent REASONS FOR JUDGMENT STRAYER J.A. [1] This is an appeal from a decision of Snider J. of the Federal Court in which she dismissed an application for judicial review of a decision of Ms. Terri Cameron, an officer of the Income Security Program Branch of Human Resource Development Canada (HRDC). [2] The appellant became 60 years of age in June 1997. He did not complete an application form for Canada Pension Plan (CPP) benefits until May 26, 2000, when it was submitted and then resubmitted. In letters of June 2, 2000 and June 22, 2000, he asked to amend his application to request retroactive payments of benefits back to May 1999. The first letter stated his understanding that he was entitled to apply for retroactive payment of benefits for up to one year prior to his application. [3] The first letter was apparently lost in HRDC but the second letter was processed as an application for retroactive benefits, and by a decision of September 15, 2000, the appellant was advised that he was not entitled to such retroactivity. It was correctly explained to him that by law (paragraphs 67(2)(a) and (b)) of the Canada Pension Plan) he was legally entitled to have his pension start on the later of the month after his 60th birthday (that is, July 1997) or the month after his month of application (that is, June 2000). In other words, he was entitled by statute to have his pension begin no sooner than June 2000. [4] By letter of December 10, 2000, he filed an appeal from that decision to the Office of the CPP Review Tribunals. In that letter, he also for the first time stated that he had been told "on at least two occasions since 1997" by a CPP officer that he could at any time request that his payment be made retroactive to his 60th birthday. This allegation was conveyed by the Review Tribunal Office to HRDC where it was referred to Ms. Cameron. She proceeded to exercise the Minister's authority under subsection 66(4) of the CPP which provides as follows: (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. (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. [5] On January 9, 2001, Ms. Cameron wrote to the appellant advising him that it had been determined that he had not received erroneous advice from HRDC. The letter also advised him that if he disagreed with this decision he could seek judicial review in the Federal Court. This he did. [6] The appellant argued before the Federal Court that Ms. Cameron had no jurisdiction to deal with the subsection 66(4) remedy for "erroneous advice", since he had not specifically asked the Minister to do this in his letter of appeal of December 10, 2000 which he said was directed to his entitlement under subsection 67(2). He also contended that he had been denied a fair hearing by Ms. Cameron because he had not been given a chance to make submissions to HRDC on the "erroneous advice" issue. Further, he argued that Ms. Cameron's decision was wrong on the facts. The learned applications judge rejected all of these arguments and dismissed the application for judicial review. [7] I am satisfied that she did not err in concluding as she did. Subsection 66(4) provides authority for the Minister or his officer to correct a loss of benefits due to erroneous advice, but prescribes no procedures. It simply requires that the minister be "satisfied" that such advice resulted in a loss of benefits. It was quite proper for Ms. Cameron to act on information originating with the appellant (his letter of December 10, 2000) provided to her by the Appeals Tribunal Office. To require a separate and special communication to HRDC for subsection 66(4) consideration could be seen as excessively formalistic and criticized as another example of "bureaucratic red tape". [8] It was open to the applications judge to find that Ms. Cameron respected the requirements of fairness. While it might have been better had Ms. Cameron specifically consulted the appellant before her letter of January 9, 2001 advising him of her decision, there was evidence in the form of sworn testimony by Ms. Cameron that, in a telephone conversation of January 12, she had advised the appellant that if he had any further information about the alleged erroneous advice he should send it in and she would reconsider. The appellant agreed that the telephone conversation was held that day. While he asserted in argument that there was no mention in that conversation of his submitting further information, he could not direct this panel to any sworn evidence on his part to that effect. It was therefore open to the applications judge to conclude as she did that the appellant had been given the opportunity to make further submissions and thus there had been fairness in the process. [9] As for Ms. Cameron's finding of fact that there had been no such erroneous advice given by HRDC, the applications judge applied the standard of review of patent unreasonability. I am satisfied that such was the correct standard. I am further satisfied that the applications judge correctly concluded that Ms. Cameron's finding was not patently unreasonable. There were contradictions in the allegations by the appellant as to the receipt of erroneous advice, and a distinct lack of specifics as to the date and source of such advice. From this it was open to Ms. Cameron to make the findings of fact she did and for the applications judge to dismiss the application for judicial review. [10] The appeal should therefore be dismissed with costs. (s) "B.L. Strayer" J.A. I agree "Marshall Rothstein" J.A. I agree "B. Malone" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-192-03 STYLE OF CAUSE: Danny Leskiw v. Attorney General of Canada PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 28, 2004 REASONS FOR JUDGMENT: STRAYER J.A. CONCURRED IN BY: ROTHSTEIN J.A MALONE J.A. DATED: May 3, 2004 APPEARANCES: Mr. Danny Leskiw ON HIS OWN BEHALF Ms. Shawna Noseworthy FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. Danny Leskiw Toronto, Ontario ON HIS OWN BEHALF Mr. Morris Rosenberg Deputy Attorney General of Canada FOR THE RESPONDENT