Date : 20050117
Docket : T-1018-04
Reference : 2005 FC 47
OTTAWA, ONTARIO, JANUARY 17, 2005
Present : THE HONOURABLE JUSTICE LUC MARTINEAU
BETWEEN :
THE ESTATE OF JULIETTE THIBAULT
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7 for judicial review of a decision dated April 13, 2004 of the Honourable R..G. Conant, acting as a designated member of the Pension Appeals Board (the PAB), that refused the applicant leave to appeal a decision of the Review Tribunal (the Tribunal) dated November 13, 2003.
[2] Ms. Juliette Thibault was born on November 14, 1914. Ms. Thibault contributed to the Canada Pension Plan (the CPP) between 1966 and 1976 inclusively. Ms. Thibault became eligible for retirement pension benefits from the CPP upon retirement but did not make an application at that time or at any time subsequent thereto.
[3] While paragraph 44(1)(a) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (the Act) stipulates that a retirement pension be paid to a contributor that has reached sixty years of age, under subsection 60(1) of the Act, no benefit is payable to any person under the Act unless an application therefore has been made by him or her or on his or her behalf and payment of the benefit has been approved under the Act.
[4] Ms. Juliette Thibault died on February 27, 2002 at the age of 87.
[5] In March 2002, the Department of Human Resources Development Canada (the HRDC) received a post-mortem application dated March 26, 2002 from Keith Veinot, Ms. Juliette Thibault's son and the executor of Juliette Thibault's estate, for a retirement pension on behalf of Juliette Thibault.
[6] Under subsection 60(2) of the Act, an application for a benefit, by an estate, that would have been payable in respect of a month to a deceased person who, prior to the person's death, would have been entitled on approval of an application to payment of that benefit may be approved if it is made within twelve months after the death of that person. Under subsection 60(5) of the Act, an application for a benefit by an estate is deemed to have been received on the date of death.
[7] Moreover, under subsection 67(3) of the Act:
[w]here a person who has applied to receive a retirement pension attains the age of sixty-five years before the day on which the application is received, the pension is payable commencing with the latest of
(a) the twelfth month before the month after the month in which the applicant applied or the month of January 1995, whichever is later,
(b) the month in which the applicant reaches the age of sixty-five years, or
(c) the month chosen by the applicant in the application.
[8] Under section 2 of the Act, applicant is defined as a person or an estate that has applied for a benefit. That said, subsection 67(3) of the Act uses the expression "person who has applied", or, in other words, the applicant (Meyer v. Canada (Attorney General), [2003] F.C.J. No. 346 (F.C.A) (QL)).
[9] The application made by the estate of Ms. Thibault was approved with an effective date of March 2001. Therefore, the HRDC paid Ms. Thibault's estate a post-mortem retirement pension that included eleven months of retroactive benefits.
[10] On May 13, 2002, Mr. Veinot asked HRDC to "take another look at his mother's file and see if there is anything you can do for me to help reclaim some of the Canada Pension she was entitled to over the years, but did not receive". On May 21, 2002, HRDC sent a letter to Mr. Veinot explaining that the Act only allows a retroactive payment of benefits of up to eleven months since her mother was older than 65 when the application was received. On May 27, 2002, Mr. Veinot requested that HRDC reconsider the effective date of the retirement pension. On June 20, 2002, HRDC informed Mr. Veinot that his application was reconsidered and that the decision denying further retroactive payments was upheld. By notice of appeal dated June 24, 2002, Mr. Veinot, as executor of the estate of Juliette Thibault, advised the Office of the Commissioner of Review Tribunals that he wished to appeal the decision to a Review Tribunal constituted pursuant to section 82 of the Act (the Tribunal).
[11] On November 13, 2003, the Tribunal held that the period of retroactivity was limited to eleven months pursuant to subsection 67(3) of the Act. The Tribunal stated that it was bound by the Federal Court of Appeal's decision in Meyer, supra, where it was found that the limitation to twelve months' retroactivity of benefits provided by subsection 67(3) of the Act applies to applications made by estates. On this matter, the Federal Court of Appeal stated:
The applicant says that subsection 67(3) does not apply to estates and that it only applies in the case of applications by living persons. On that interpretation, the applicant says that the limitation in paragraph 67(3)(a) to twelve months' retroactivity of benefits does not apply in this case. She says that her mother's estate should be entitled to some 20 years of retroactivity - for the period from the date when her mother turned sixty-five years of age to the time of her death at eighty-five years of age.
It is common ground that, to the extent subsection 67(3) was intended to apply to estates, it has been poorly drafted. Nonetheless, I am impelled to the conclusion that it does apply to applications by estates and that the limitation to twelve months' retroactivity of benefits is applicable in this case.
The applicant's argument is premised on the English version of subsection 67(3). She says that its opening words indicate an intention to limit its application to applicants who are "persons" as opposed to "estates". However, the French version of subsection 67(3) uses the term "requérant", which is the more general term including both persons (personne) and estates (ayants droits). Section 2(1) defines applicant and requérant:
"applicant" means, in Part II:
(a) a person or an estate that has applied for a benefit,
"requérant" Dans la partie II :
...
a) personne ou ayants droits qui on fait une demande de prestation;
Reference to the French version makes it clear that, while subsections 67(1) and (2), by their express terms, do not apply to estates, subsection 67(3) does apply to the broader category of applicants as defined in subsection 2(1), that is, to estates as well as to living persons. The better interpretation is broader, rather than narrower, in the case of subsection 67(3).
An interpretation of subsection 67(3) that includes applications by estates avoids an absurd result. If subsection 67(3) only applied to applications by living persons, living applicants would be limited to twelve months' retroactivity whereas, in case of applications by estates, there would be no limit to retroactivity. To read the legislation as conferring on survivors or beneficiaries of an estate access to greater benefits than living contributors would be patently absurd.
[12] By application dated February 11, 2004, Mr. Veinot, as executor of the estate of Juliette Thibault, applied for leave to appeal to the PAB. The Honourable R.G. Conant, acting as a designated member of the PAB (the leave judge) refused the application for leave to appeal on April 13, 2004 on the basis that "it is clear that subsection 67(3) of the Act requires payment for no more than twelve months prior to the month after the month of application. As the application was made on March 2002 and the pensioner died in February - the month before - there is no arguable case or question of law to be made to seek further payment than the eleven months paid."
[13] The applicant now seeks an order quashing the leave judge's decision and an order granting leave to appeal from the decision of the Tribunal. In the alternative, the applicant seeks an order setting aside the impugned decision and an order referring the matter back to the PAB for reconsideration.
[14] First, it should be noted that, as established in Paproski v. Canada (Minister of Human Resources Development), [2000] F.C.J. No. 859 (F.C.T.D.) (QL) and Rafuse v. Canada (Pension Appeals Board), [2002] F.C.J. No. 91 (F.C.A.) (QL), this Court does not have jurisdiction to make an order granting leave to appeal to the PAB. This Court can only quash the impugned decision and refer the matter back for reconsideration before the PAB.
[15] Second, decisions by a leave judge are subject to judicial review by the Federal Court (Martin v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1972 (F.C.A.) (QL)). The Court hearing an application for judicial review under sections 18 and 18.1 of the Federal Courts Act cannot simply reverse or set aside same because it might have come to a different conclusion. Counsel submit that the leave application principally raises questions of law or mixed law and fact. Pure questions of law should be decided on a correctness standard. However, this Court has already decided that the standard of reasonableness simpliciter appears appropriate where the decision under review does not concern only a question of law (Callihoo v. Canada (Attorney General), [2000] F.C.J. No. 612 (F.C.T.D.) (QL); Davies v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1514 (F.C.T.D.) (QL); Rafuse v. Canada (Pension Appeals Board), [2000] F.C.J. No. 1178 (F.C.T.D.) (QL); Wihksne v. Canada (Attorney General), [2000] F.C.J. No. 1178 (F.C.T.D.) (QL); Martin, supra, at para. 9).
[16] Third, the review of a decision concerning an application for leave to appeal to the PAB typically involves two issues:
(a) Whether the leave judge has applied the right test - that is, whether the application raises an arguable case without otherwise assessing the merits of the application. In this respect, a leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first and lower hurdle for the applicant to meet in comparison to that which must be met at the hearing of the appeal on the merits (Kerth v. Canada (Minister of Human Resources Development), [1999] F.C.J. No. 1252 (F.C.T.D.) (QL)). The applicant, at the leave stage, does not have to prove his or her case.
(b) Whether the decision maker has erred in law or in appreciation of the facts in determining whether an arguable case is raised. In this regard, this Court has recognized in the past (Callihoo, supra, at para.19) that if new evidence is adduced with the application and/or if the application raises an issue of law or of relevant significant facts not appropriately considered by the Review Tribunal in its decision, an arguable issue is raised for consideration. Moreover, consistent with the standard of review applicable in such a case, the Court should not interfere with the leave judge's decision not to grant leave if the refusal is supported by reasons that can stand up to a somewhat probing analysis.
[17] In the case at bar, the leave judge evidently applied the right test, i.e. whether the application raised an arguable case. I am also of the opinion that the reasons given by the leave judge to refuse leave can stand up to a somewhat probing analysis. The Federal Court of Appeal's decision in Meyer, supra, was found by the Tribunal to be determinative of the issues raised by the applicant in this case. The applicant does not question the Tribunal's principal finding that Meyer, supra, is relevant to determine whether subsection 67(3) of the Act limits the retroactivity period. Moreover, the leave application does not seriously challenge the underlying legal reasoning contained in the Meyer's decision nor that the facts in this case are the same as in Meyer, supra. In my opinion, the leave judge did not err in law or act unreasonably when he found that there was no arguable case or question of law to be made to seek further payment than the eleven months paid. In the case at bar, the leave judge stated that it is clear that subsection 67(3) of the Act requires payment for no more than twelve months prior to the month after the month of application. In other words, the leave judge concluded that contrary to the applicant's claim there was no error of law within the Tribunal's decision which is based on Meyer, supra, and therefore no arguable case.
[18] Be that as it may, even I assume for the purpose of discussion that the issue raised in the application for leave made by the applicant to the PAB should be decided on its merits on a correctness standard, the applicant has failed to convince me that an arguable case can be made from the mere fact that there is no mention in the reasons given by the leave judge of either subsection 44(1) or subsection 60(2) of the Act. It is apparent that same do not affect the retroactivity period for the payment of benefits which is clearly limited by paragraph 67(3)(a) of the Act. Subsection 44(1) of the Act is simply a general provision that a retirement pension shall be paid to a contributor who has reached sixty years of age. Clearly, it is subject to the other provisions of the Act, namely, subsections 60(2) and 67(3). As for subsection 60(2) of the Act, its effect is limited to the approval of an application to payment of benefits. However, once approved, the determination of the effective date or the retroactivity period is a distinct issue. On this matter, subsection 67(3) of the Act has the effect of limiting the retroactivity period to a maximum of twelve months.
[19] In conclusion, I am satisfied there is no reviewable error of fact or law which would allow me to interfere with the decision of the leave judge. Therefore the application should be dismissed. Respondent should be entitled to costs.
ORDER
THE COURT ORDERS:
The application is dismissed with costs in favour of the respondent.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1018-04
STYLE OF CAUSE: THE ESTATE OF JULIETTE THIBAULT v. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: JANUARY 11, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: JANUARY 17, 2005
APPEARANCES:
CHARLES DEMOND FOR THE APPLICANT
FLORENCE CLANCY FOR THE RESPONDENT
SOLICITORS OF RECORD:
CHARLES DEMOND FOR THE APPLICANT
BEDFORD, N.S.
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA