Ottawa, Ontario, this 30th day of August, 2004
PRESENT: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT
Applicant
and
THE ESTATE OF MILDRED DUBLIN
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of a Review Tribunal, established pursuant to the Old Age Security Act, R.S.C. 1985, c. O-9 (Act), allowing the Respondent to file an application for post mortem Old Age Security benefits (benefits) more than one year after his spouse's death.
BACKGROUND
[2] The Respondent's wife, Ms. Mildred Josephine Dublin, was involved in a severe accident in 1947, after which time she suffered from almost complete amnesia.. She could recall nothing but her name. She died on February 21st, 1999. Several days before she died, Mrs. Dublin provided her husband with a street address in Nova Scotia. This information eventually led him to discover that she came from Cape Breton and that she was several years older than either she or her family had believed. As a result of her age, Mrs. Dublin had been eligible for but had not received social security benefits at the time of her death.
[3] On March 7th, 2000, the Respondent ( the husband acting as executor of her estate) completed an application for these benefits. The application was returned as incomplete. On November 15th, 2001, he filed a completed application for the benefits.
[4] On November 22nd, 2001, the Respondent was informed by the Applicant that his application could not be accepted because it had not been made within the one year deadline established by section 29 of the Act. The Respondent's appeal of this decision to the Minister was rejected on February 5th, 2002. The Respondent then sought review of the Minister's decision to the Review Tribunal.
[5] The issue before the Review Tribunal was whether section 29 of the Act provides the Minister with the discretion, in special circumstances, to accept applications submitted more than one year after a potential recipient's death.
[6] In Reasons dated April 24th, 2003, the Tribunal concluded that section 29 was ambiguous in this regard and that the ambiguity should be resolved in favour of the Applicant. Accordingly, it found that the Respondent's application should have been accepted and directed the Minister to pay him the applicable post mortem benefits. The Minister now seeks judicial review of the Review Tribunal's decision.
ISSUE
[7] This application raises one issue: does the Review Tribunal have jurisdiction under section 29 of the Act, to direct that the Respondent receive the post mortem benefits?
ANALYSIS
[8] The central issue in this case is the meaning of the word "may" or "peuvent" in section 29 of the Act. The standard of review for questions of statutory interpretation of this nature is correctness (Canada (M.H.R.D.) v. Skoric, [2000]_3 F.C. 265 (C.A.)).
[9] Section 29(1) of the Act states:
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29. (1) Notwithstanding anything in this Act but subject to subsection (4), an application for a benefit that would have been payable to a deceased person who, prior to his death, would have been entitled, on approval of an application, to payment of that benefit under this Act may be made within one year after the person's death by the estate, the representative or heir of that person or by such person as may be prescribed by regulation.
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29. (1) Par dérogation à la présente loi mais sous réserve du paragraphe (4), les personnes désignées par règlement, les ayants cause, le représentant ou l'héritier d'une personne qui, avant son décès, aurait eu droit, une fois sa demande agréée, au versement des prestations visées par la présente loi peuvent demander celle-ci dans l'année qui suit le décès. |
[10] The Respondent defends the decision of the Review Tribunal and submits that section 29 is ambiguous in that, in addition to the above meaning, it may also suggest that the Minister has the authority, in special circumstances, to pay benefits following an application made outside of the one year period.
[11] In Rizzo v. Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, the Supreme Court adopted the following approach to statutory interpretation from Driedger:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament
Accordingly, the role of the Court in this case is to give section 29 in its ordinary sense within the overall context of the Act.
[12] Section 29 is a general provision designed to allow the estate or heir of an individual who was eligible for benefits with the opportunity to make an application for those benefits within a limited period of time after his or her death. Although its purpose is ameliorative, the provision is clear that such benefits may only be paid if the application is made within one year of death. Specifically, section 29(1) states "... an application for a benefit ... may be made within one year after the person's death...." and ".... aurait eu droit, une fois sa demande agréée, au versement des prestations..... peuvent demander celle-ci dans l'année qui suit le décès" (underlining added).
[13] The terms "may" or "peuvent" in this section clearly refer only to whether or not benefits will be paid. It authorizes when an application may be made, however it does not imply that the Minister has the discretion to consider applications made more than one year after a potential recipient's death. Accordingly, the Review Tribunal erred in concluding that the section was ambiguous and in, therefore, directing that the benefits be paid to the Respondent.
[14] Nonetheless, it seems likely that the decision was motivated by the desire to provide benefits to a deserving applicant whose application was filed outside of the one year period due to unique circumstances beyond his control. I sympathize with this motivation and while I have no choice to hold that the Tribunal did not have the power to make the Order on the basis that it did; it strikes me that we have here a unique set of circumstances. Through tragic circumstances Mildred Dublin knew nothing about her background or her age until she was literally at death's door. Then it took her husband considerable time and effort to locate her relatives on the basis of a fifty year old street address. Not surprisingly under these circumstances he missed the one year deadline. A little sympathy and charity is called for. Accordingly the Minister would be fully justified to exercise his authority to make an ex gratia payment in this case.. The court would strongly urge him to do so.
[15] Notwithstanding the foregoing, this application will succeed.
ORDER
The decision of the Review Tribunal of April 24th, 2003 is set aside and the matter is referred back to it for reconsideration.
"K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-864-03
STYLE OF CAUSE: The Minister of Human Resources & Development v. The Estate of Mildred Dublin
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: 15-JUN-2004
REASONS FOR [ORDER or JUDGMENT] : VON FINKENSTEIN, J.
DATED: 30-AUG-2004
APPEARANCES:
Mr. Michel Mathieu FOR APPLICANT
Mr. John D. Waddell, Q.C. FOR RESPONDENT
SOLICITORS OF RECORD:
Michel Mathieu FOR APPLICANT
Department of Justice
Ottawa, Ontario
Waddell Raponi FOR RESPONDENT
Barristers and Solicitors
Victoria, B.C.