Date: 20030627
Docket: T-1437-01
Citation: 2003 FCT 796
BETWEEN:
IRENE ELGUINDY
Applicant
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA and
THE MINISTER OF HUMAN RESOURCES DEVELOPMENT CANADA
Respondents
INTRODUCTION
[1] These reasons follow the hearing at Toronto, on the 25th of June, 2003, of an application for judicial review of a decision reflected in a letter dated the 27th of July, 2001. The substance of that letter follows:
As you have been advised a number of times previously, there remains an outstanding overpayment on the above account, in the amount of $870.81. There was no entitlement to any payments issued after the month of death (6/96), so that the payment for 7/96 should have been returned, not used to pay bills or expenses of any kind. It is irrelevant what the money was used for, since there was no entitlement to it in the first place.
This amount remains a Debt Due the Crown, and must be repaid. As the next-of-kin, power of attorney, and the person who handled her final affairs, the responsibility for repaying this amount remains with you. Failure to repay this amount is a violation under Section 37 of The Old Age Security Act.
This letter is to inform you that we have now transferred and registered an overpayment in the amount of $870.81 to the following:
Irene Elguindy: Social Insurance Number [deleted].
It will be collected in full from any Government of Canada benefits which may become payable to you in the future, including, but not limited to, your own Canada Pension Plan and Old Age Security benefits, along with any penalties and interest which may accrue between now and then. The rate of recovery will be 100% of your benefits. This will seriously impact your own benefits if this amount is not paid back in full before then.
You may repay all, or any portion, of this amount at any time, of course.[1]
[2] At the close of the hearing I advised the Applicant and her husband who assisted her at the hearing, and counsel for the Respondent, that I would dismiss the application for judicial review. I briefly explained my reasons for arriving at this decision and indicated that more formal reasons would follow. These are those reasons.
[3] The Applicant did not file her own affidavit on this application for judicial review. Rather, she filed an affidavit of her husband which the Court found to be entirely unhelpful. In the result, the following summary of the factual background is derived from the Respondents' affidavit and supporting material.
[4] The Applicant's mother died in late June of 1996. Apparently, at the time of her death, she was in receipt of Old Age Security benefits. The Respondents were not notified of the death of the Applicant's mother when, in late June or July of 1996, they had deposited to the deceased's bank account Old Age Security benefits for the month of July to which none of the deceased, her estate and her daughter were entitled.
[5] When the Respondents became aware of the death of the Applicant's mother, they attempted to recover, through the bank at which the deposit had been made, the amount of the July payment. The bank responded that it too had been unaware of the death, that the Applicant had a power of attorney on her deceased mother's bank account and that the funds had been withdrawn. The Respondents contacted the Applicant. The Applicant apparently did not deny withdrawing the funds and indicated that they had been applied to the payment of funeral expenses.
[6] The decision here under review followed when the Respondents concluded that the Applicant was unprepared to voluntarily reimburse the overpayment.
[7] Subsections 37(1) and 37(2.1) of the Old Age Security Act[2] read as follows:
37. (1) A person who has received or obtained by cheque or otherwise a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be.
37. (1) Le trop-perçu - qu'il s'agisse d'un excédent ou d'une prestation à laquelle on n'a pas droit - doit être immédiatement restitué, soit par remboursement, soit par retour du chèque.
(2.1) If any amount is or becomes payable to the person or to the person's estate or succession under this Act or any other Act or program administered by the Minister, the amount of the debt may be deducted and retained out of the amount payable in the prescribed manner. [emphasis added]
(2.1) Ces prestations peuvent en outre être déduites, de la façon réglementaire, des sommes qui sont éventuellement payables au prestataire ou à sa succession en vertu de la présente loi ou de toute autre loi ou tout programme dont la gestion est confiée au ministre. [je souligne]
[8] On the basis of the materials before the Court, I am satisfied that, in the terms of subsection 37(1), the Applicant is a person who "obtained", otherwise than by cheque, a benefit payment to which she was not entitled. The amount of the benefit payment was not returned, "forthwith" or otherwise.
[9] Within the terminology of subsection 37(2.1), the Applicant is a person in "succession" to her deceased mother. The amount of the benefit payment obtained by the Applicant to which she is not now and never was entitled has become a "debt" referred in subsection 37(2.1). In the result, it is open to the Respondents to notify the Applicant that that "debt" would be collected in full from any Government of Canada benefits which may become payable to her in the future.
[10] In the result, against whatever standard of review might be applicable on an application for judicial review such as this, and I make no finding in that regard, I concluded that this application for judicial review should be dismissed. On the 25th of June, 2003, an Order issued in the following terms:
This application for judicial review of a decision of Fred Hinnegan, at the Chatham Overpayment Unit of Canada Pension Plan, Old Age Security unit of Human Resources Development Canada, recorded in a letter dated July 27, 2001 and received by the Applicant on August 2, 2001, is dismissed.
No order as to costs.
Reasons to follow.
[11] These are the "reasons to follow".
_____________________________
J. F.C.C.
Ottawa, Ontario
June 27, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-1437-01
STYLE OF CAUSE:IRENE ELGUINDY
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA et al
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY JUNE 25, 2003
REASONS FOR ORDER
AND ORDER BY: GIBSON, J.
DATED: June 27, 2003
APPEARANCES BY: Mr. Emad Elguindy
For the Applicant
Mr. Michael Mathieu
For the Respondents
SOLICITORS OF RECORD: Mr. & Mrs. Elguindy
5446 Glen Erin Dr.
Mississauga, ON L5M 5C7
For the Applicant
Department of Justice Canada
Human Resources Development Canada
Legal Services Unit, 6th Floor, Tower A
333 River Road
Vanier, ON K1A 0L1
For the Respondents