Date: 20030224
Docket: T-2038-01
Neutral citation: 2003 FCT 208
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
JOHN L. BANNERMAN
Respondent
INTRODUCTION
[1] These reasons arise out of an application for judicial review brought by the Attorney General of Canada (the "Applicant") in respect of a decision of a Review Tribunal (the "Tribunal") established under section 82 of the Canada Pension Plan[1]. The decision of the Tribunal that is under review is dated the 18th of October, 2001 and concluded with the following paragraph:
Section 32 of the OAS Act [the Old Age Security Act] provides that in a case where a person has been denied a benefit to which he would have been entitled, as a result of an administrative error, that person may be returned to the position he ought to have been in had the administrative error not been made. The Tribunal asserts and finds that it and the Minister have such remedial power as set out in Section 32 and that, in the circumstances, the Appellant John [Bannerman] ought to have the $900.00 deducted from his OAS benefit returned to him.[2]
[2] The Respondent, John L. Bannerman ("Mr. Bannerman") filed no materials on this application for judicial review. He appeared on his own behalf.
BACKGROUND
[3] The application of Mr. Bannerman and his spouse, dated the 22nd of February, 1998, for Guaranteed Income Supplement ("GIS") payments commencing in April of 1998 was approved and they each began to receive GIS payments in that month. Late in 1998 or early in 1999, Mr. Bannerman's spouse acknowledged that, since the 1st of June, 1993, she had been in receipt of a retirement pension that had not previously been disclosed[3]. In the result, both Mr. Bannerman's and his spouse's GIS entitlements were reduced retroactively to April, 1998. Officials determined that the reduction resulted in an overpayment to Mr. Bannerman since April of 1998 of $900.00 and, in the case of his spouse, of $660.00.
[4] Mr. Bannerman's spouse died on the 25th of February, 1999.
[5] Information regarding the overpayments to Mr. Bannerman and his late spouse was communicated to Mr. Bannerman by letter dated the 11th of February, 2000. The letter read in part:
We ask that you submit your cheque or money order made payable to the Receiver General for Canada in the amount of $900.00 for yourself and a claim against the estate for $660.00 on behalf of the late Mrs Lore Bannerman. If we do not receive a full remittance, we will initiate recovery at the rate of $50.00 per month from your new entitlement until the debt is fully recovered. Recovery will begin March 2000.[4]
The letter indicated that, if Mr. Bannerman were dissatisfied with the decision, he could request reconsideration within 90 days of the date he received the letter, indicated that such a request must be in writing and provided the address to which a request might be sent.
[6] Mr. Bannerman requested reconsideration but, strangely enough, according to all of the materials before the Court, only in respect of the $660.00 overpayment claimed against the estate of his late wife. Reconsideration resulted in a confirmation of the overpayment claimed against the estate of the late Mrs. Bannerman.
[7] The decision on the request for reconsideration was appealed to a Review Tribunal resulting in the decision here under review.
THE STATUTORY SCHEME RELATING TO RECONSIDERATIONS AND APPEALS
[8] Subsections 27.1(1) and 28(1) of the Old Age Security Act[5] read as follows:
27.1 (1) A person who is dissatisfied with a decision or determination made under this Act that no benefit may be paid to that person, or respecting the amount of any benefit that may be paid to that person, may, within ninety days after the day on which the person is notified in the prescribed manner of the decision or determination, or within such longer period as the Minister may either before or after the expiration of those ninety days allow, make a request to the Minister in the prescribed form and manner for a reconsideration of that decision or determination.
...
28. (1) A person who makes a request under subsection 27.1(1) and who is dissatisfied with the decision of the Minister in respect of the request, or, subject to the regulations, any person on their behalf, may appeal the decision to a Review Tribunal under subsection 82(1) of the Canada Pension Plan.
...
27.1 (1) La personne qui se croit lésée par une décision de refus ou de liquidation de la prestation prise en application de la présente loi peut, dans les quatre-vingt-dix jours suivant la notification de la décision, selon les modalités réglementaires, ou dans le délai plus long que le ministre peut accorder avant ou après l'expiration du délai de quatre-vingt-dix jours, demander au ministre, selon les modalités réglementaires, de réviser sa décision.
...
28. (1) L'auteur de la demande prévue au paragraphe 27.1(1) qui se croit lésé par la décision révisée du ministre - ou, sous réserve des règlements, quiconque pour son compte - peut appeler de la décision devant un tribunal de révision constitué en application du paragraphe 82(1) du Régime de pensions du Canada.
...
THE DECISION UNDER REVIEW
[9] In its reasons for decision, the Tribunal described the background to the appeal before it, and its rationale in determining to assume jurisdiction with regard to the $900.00 overpayment to Mr. Bannerman, in the following terms:
In May 2001, the administration determined that the sum of $660.00 was uncollectable [sic] in the foreseeable future and remitted the said sum, advising [Mr. Bannerman] accordingly.
As to the $900.00 overpayment to [Mr. Bannerman], the administration made no such remittance but initiated a recovery of $50.00 each month from his OAS entitlement, beginning with his April 2000 entitlement. At August 2001 the administration had "recovered" the entire $900.00.
By letter dated August 28, 2001, the administration advised [Mr. Bannerman] that while [his late spouse's] debt had, in fact, been excused, if, in fact, her Estate were to come into any monies, administration would still accept repayment of the $660.00 "overpayment". It was emphasized that if his personal finances were to change that would not mean that the administration would look to him for such repayment.
[Mr. Bannerman] formally appealed the $660.00 "overpayment" to [his late spouse] but did not formally appeal the $900.00 "overpayment" to him.
...
In testifying before the Tribunal, [Mr. Bannerman] said that at all times material he did not know that [his late spouse] had been receiving a German pension so that he should not have been held to be responsible, ever, for the $660.00 "overpaid" to her and that in the circumstances the administration ought to return to him the sum of $900.00 which it had deducted from his OAS entitlement. He testified, further, that in every application he correctly stated his income.
...
Though [Mr. Bannerman] had formally appealed the decision that [his late spouse's] Estate was required to repay a GIS overpayment of $600.00 [sic], the Minister's representative advised the Tribunal that the overpayment was no longer an issue in that the overpayment was being excused.
In appearing before the Tribunal, however, [Mr.Bannerman] has raised the matter of the "overpayment" to him of a sum of $900.00. While [Mr. Bannerman] did not formally appeal the decision by the Minister to demand repayment by him of the sum of $900.00, it is the Tribunal's position that [Mr. Bannerman's] request that the $900.00 which had been deducted from his OAS entitlement be returned to him is a request that in actual fact constitutes his appeal of the Minister's determination. The applications by [Mr. Bannerman and his late spouse] for GIS benefits were at all times joint applications. Their combined family incomes for any application year were the basis for each application. The benefits each received were calculated on the basis of such joint applications. Any changes to such joint applications affected both applicants. Thus, any change in their application covering benefits for the period April 1998 to June 1999 affected both [Mr. Bannerman] and [his late spouse]. That being the case, the Tribunal holds that it has the jurisdiction to view [Mr. Bannerman's] request for the return of the sum of $900.00 as his appeal of that ministerial determination. Secondly, jurisdiction is taken by the Tribunal on the basis that a liberal interpretation be placed upon the legislative provisions of the OAS Act. In the interests of fairness, [Mr. Bannerman's] position ought to be treated as a formal appeal.[6] [emphasis added]
THE ISSUES
[10] Counsel for the Applicant identified three (3) issues arising on this application for judicial review. They are set out in the Applicant's Memorandum of Fact and Law in the following terms: first, whether the Tribunal has jurisdiction over the Respondent's debt; secondly, assuming it has such jurisdiction, whether the Tribunal exceeded its jurisdiction by exercising the Minister's discretionary power; and thirdly, assuming the Tribunal may exercise the discretion in lieu of the Minister, whether it exercised that discretion in good faith.
[11] I am satisfied that the result on the second and third issues identified will follow the result on the first.
ANALYSIS
Did the Tribunal exceed its jurisdiction?
[12] As noted earlier, the Tribunal acknowledged that Mr. Bannerman had not sought reconsideration by the Minister of the overpayment assessed against him. Thus, at least on the record before the Court, there is no indication that a reconsideration of that assessed overpayment was undertaken in accordance with section 27.1(1) of the Act.
[13] Subsection 28(1) of the Act is, I am satisfied, clear and unequivocal that a request for reconsideration under subsection 27.1(1) of the Act and the decision on the request for reconsideration are conditions precedent to a right of appeal to a Review Tribunal. Indeed, it is only a decision on a reconsideration request that may be appealed to a Review Tribunal. Put another way, there is no direct right of appeal from an original determination without having first submitted that determination for redetermination and having received a decision flowing from that request.
[14] In essence, I am satisfied that the Review Tribunal whose decision is here under review ignored the statutory scheme that established its jurisdiction and abrogated to itself the role of the Minister under subsection 27.1(1) of the Act. That, the Review Tribunal had no authority to do.
[15] I return to the last two (2) sentences of the paragraphs quoted above from the Tribunal's reasons for decision. The Tribunal speaks of Mr. Bannerman's "...appeal of that ministerial determination". As just indicated, there is no appeal to a Review Tribunal from a ministerial determination, only from a ministerial redetermination. The Tribunal goes on to cite a "liberal interpretation" of the provisions of the Act and "fairness" as justifications for its assumption of jurisdiction. With great respect, neither a liberal interpretation of a statute nor "fairness" provide authority for ignoring the clear and unequivocal language of the statute itself.
[16] Based upon the foregoing brief analysis, I am satisfied that the Tribunal, in assuming jurisdiction with respect to the overpayment to Mr. Bannerman, exceeded its jurisdiction and without colour of right assumed jurisdiction conferred on the Minister. The decision under review must, therefore, be set aside. Given this conclusion, the second and third issues identified on behalf of the Applicant simply do not arise.
CONCLUSION
[17] This application for judicial review will be allowed. The decision of the Review Tribunal that is under review will be set aside.
[18] The Applicant does not seek costs. There will be no order as to costs.
POSTCRIPT
[19] Before the Court, counsel for the Applicant noted that, under the terms of subsection 27.1(1) of the Act, Mr. Bannerman may still seek reconsideration of the determination regarding an overpayment to him so long as that request for consideration is brought forward "...in the prescribed form and manner..." and is accompanied by a request for an extension of the time provided for making such a request. I have no doubt that, if Mr. Bannerman chose to follow this course of action, officials of the Ministry of Human Resources Development would be prepared to assist him in ensuring that his request for reconsideration and for extension of time is in "the prescribed form and manner...".
[20] Assuming that the Minister might consent to an extension of time in light of the rather bizarre circumstances of this matter, a decision on reconsideration would follow. If Mr. Bannerman were dissatisfied with that decision, he would then, and only then, be in a position to appeal the decision on reconsideration to a Review Tribunal.
[21] Before me, Mr. Bannerman complained that he had received no assistance in attempting to "obtain justice". The situation that he faces is perhaps complex but it is surely rather unique. Whether he chooses to carry this matter further is a matter for his own consideration and does not require an understanding of complex provisions of law.
______________________________
J. F.C.C.
Ottawa, Ontario
February 24, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2038-01
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v.
JOHN L. BANNERMAN
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: FEBRUARY 11, 2003
REASONS FOR ORDER OF GIBSON, J
APPEARANCES:
Nathalie Archambault FOR APPLICANT
John L. Bannerman (self-represented) FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg FOR APPLICANT
Deputy Attorney General of Canada
Ottawa, Ontario
Not applicable FOR RESPONDENT
[1] R.S.C. 1985, c. C-8.
[2] Applicant's Application Record, Tab 2, page 11.
[3] Applicant's Application Record, Tab 3B.
[4] Applicant's Application Record, Tab 3D.
[5] R.S.C. 1985, c. O-9.
[6] Applicant's Application Record, Tab 2, pages 9 and 10.