[1] The issue in this appeal is the jurisdiction of the Review Tribunal constituted under section 82(2) of the Canada Pension Plan (the Plan) with respect to decisions of the Minister of Human Resources Development Canada (the Minister) made under paragraph 37(4)(d) of the Old Age Security Act (the Act).

[2] The relevant facts are as follows.

[3] The respondent made an application for the widowed spouse's allowance pursuant to the Act. She was awarded benefits on the basis of a stated income of $7,806.44. It was later found that her income was, rather, $11,917.44, because she had not reported a provincial pension in her statement of income. The Minister recalculated the benefits retroactively and sought to recover the overpayment by deductions from her subsequent benefit payments.

[4] The respondent did not challenge the recalculation itself, but disagreed with the decision to deduct the overpayment on the basis that she had not reported the provincial pension because she had been told, by two employees of the Department, that such payments did not need to be reported nor included in her statement of income.

[5] Two provisions in the Act deal with payments alleged to have been made as a result of erroneous advice. First, section 32 compels the Minister, where he or she is satisfied that, as a result of such advice, a person has been denied a benefit to which that person was entitled, to "take such remedial action as [he or she] considers appropriate to place the person in the position that the person would be under this Act had the erroneous advice not been given [...]". That provision does not apply here.

[6] Second, paragraph 37(4)(d) empowers the Minister, where a person has received an overpayment as a result of erroneous advice, to remit all or any portion of that overpayment. This is the applicable provision in this case.

[7] In light of the allegations of the respondent, the Minister reviewed the circumstances surrounding the overpayment. She came to the conclusion that there was no evidence that the respondent had received erroneous advice and therefore paragraph 37(4)(d) did not come into play. The letter of decision sent to the respondent mentioned that the above decision had been made pursuant to subsection 27.1(1) of the Act and that the respondent had the right to appeal it, under subsection 28(1), to the Review Tribunal. Subsection 27.1(1) provides that "a person who is dissatisfied with a decision or determination made under the 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 [...] make a request to the Minister [...] for a reconsideration".

[8] The respondent filed an appeal to the Review Tribunal. The Minister, at that point, came to the view that, contrary to what had been said in the letter of decision, the decision not to remit the overpayments had been made under paragraph 37(4)(d) and that there was no appeal of such a decision to the Review Tribunal. The Review Tribunal determined that it had jurisdiction and allowed the respondent's appeal. The Minister applied for judicial review in the Trial Division of this Court and lost again. The decision of the Trial Division Judge is reported at (2002) 219 F.T.R. 38.

[9] The Minister relies on the decision of this Court in Pincombe v. Canada (A.G.), [1995] F.C.J. No. 1320 (QL), where Isaac C.J. determined that the Canada Pension Plan provided no jurisdiction to the Review Committee (since renamed the Review Tribunal) to hear an appeal of decisions made pursuant to subsection 66(4) of the Plan. That subsection, during the relevant period in Pincombe, provided as follows:

(4) Where, after receiving a written statement from or on behalf of a person, the Minister is satisfied that, as a result of erroneous advice or administrative error, either before or after the coming into force of this subsection, on the part of the Minister or an official of the Department of National Health and Welfare acting in an official capacity in the administration of this Act, that 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

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 if the erroneous advice had not been given or the administrative error not been made.

(4) Dans le cas où, après avoir reçu une déclaration écrite d'une personne ou de la part d'une personne, le Ministre est convaincu qu'un avis erroné ou une erreur administrative attribuable au Ministre ou à un fonctionnaire du ministère de la Santé nationale et du Bien-être social agissant dans le cadre de ses fonctions en application de la présente loi, avant ou après l'entrée en vigueur du présent paragraphe, 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 en vertu de la présente loi s'il n'y avait pas eu avis erroné ou erreur administrative.

This subsection is equivalent to section 32 of the Act. Both sections compel the Minister to provide a remedy for a person denied all or a portion of a benefit due to erroneous advice or administrative error.

[10] Isaac C.J. found that nothing in sections 81 to 86 of the Plan provided a right of appeal from decisions made pursuant to subsection 66(4). At paragraph 5 of the reasons he wrote on behalf of the Court, he stated:

It should be noticed here that neither that subsection itself nor any other subdivision of section 65 [sic] provides for appeals over a Minister's decision under subsection 65(4) [sic]. Rights of appeal from decisions made pursuant to the provisions of the Canada Pension Plan are provided in sections 81 to 86 of the Plan in Divisions F under the heading Appeals. These sections provide for appeals from decisions made pursuant to particular sections of the Plan, but none of them gives a right of appeal from a decision made pursuant to subsection 65(4) [sic]. In these circumstances the Board was right, in our view, in concluding that the Committee had no jurisdiction to entertain the appeal, since the statute does not give the right expressly and it is well settled that a right of appeal and the right of the Committee to entertain an appeal must be expressly given by statute. Neither right having been given by statute, the Committee had no authority to entertain the appeal and was therefore in error in purporting to exercise the right which it claimed.

The only provision that could reasonably be argued as providing such a right of appeal is found in paragraph 81(1)(c). That provision provided at the relevant time in Pincombe as follows:

81. (1) Where

(c) a beneficiary is dissatisfied with any determination as to the amount of any benefit payable to him or as to his eligibility to receive that benefit, or

[...]

he, or subject to the regulations, any person on his behalf, may, within twelve months after the month in which he is notified in the prescribed manner of the decision or determination, appeal to the Minister in writing, in prescribed form and manner, for a reconsideration of that decision or determination.

[Emphasis added]

81. (1) Dans les cas où:

c) un bénéficiaire n'est pas satisfait d'un arrêt concernant le montant d'une prestation qui lui est payable ou son admissibilité à recevoir une telle prestation;

[...]

celui-ci peut, ou, sous réserve des règlements, quiconque de sa part, peut, dans les douze mois au cours duquel il est, de la manière prescrite, avisé de la décision ou de l'arrêt, interjeter par écrit auprès du minitre, un appel de la décision ou de l'arrêt suivant la forme et la manière prescrites à cet effet.

As indicated, supra, similar language is found in subsection 27.1(1) of the Act. I reproduce that section below for ease of reference:

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.

[Emphasis added]

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.

[11] In my view, the reasoning in Pincombe applies with respect to a decision made under section 32 of the Act. This same reasoning must also apply to decisions made under paragraph 37(4)(d). Each provision provides a remedy to a person who, due to erroneous advice or administrative error, has received an incorrect payment of benefits. Decisions as to the forgiveness of an overpayment (or the repayment of an underpayment) made as a result of erroneous advice are simply not decisions "respecting the amount of any benefit that may be paid to that person" within the meaning of subsection 27.1(1). The Act (just like the Plan at the relevant time in Pincombe) provides no other specific right of appeal of such a decision. The Trial Division Judge, therefore, erred in declining to apply Pincombe.

[12] I would therefore allow the appeal on the basis that the Review Tribunal had no jurisdiction to entertain an appeal from the Minister's decision made under paragraph 37(4)(d) not to remit any or all of the overpayments.

[13] This being said, the fact remains that the respondent, who was not represented by counsel, was directed to the Review Tribunal by the Minister, erroneously as it is now conceded, and became a respondent in the Trial Division and in this Court for the sole purpose of enabling the Minister to obtain the present ruling as to the jurisdiction of the Review Tribunal. In these circumstances, the respondent should be entitled to the reimbursement of her disbursements throughout, which I fix at $500.00.

[14] The remedy open to the respondent with respect to a decision made under paragraph 37(4)(d) is an application for judicial review in the Trial Division of the Federal Court. However, counsel for the Minister undertook that even without such an application the Minister would reconsider the remission on the ground that it would be a hardship to Mrs. Tucker to repay. Counsel also indicated that, subject to verifying Mrs. Tucker's income, in all probability she would not have to reimburse the overpayments.

[15] The appeal should be allowed, the decision of the Trial Division should be set aside, the decision of the Review Tribunal should be quashed for lack of jurisdiction and the decision of the Minister should be restored. The respondent should be paid $500.00 for her disbursements in this Court and in the Trial Division.

"Robert Décary"

J.A.

"I agree.

John M. Evans, J.A."

"I agree.

K. Sharlow, J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-335-02

Appeal from judgment of an Order of the Trial Division dated April 30, 2002, Trial Division docket T-1711-00.

STYLE OF CAUSE: Minister of Human Resources

Development Canada v. Beryl Tucker

PLACE OF HEARING: St. John's, Newfoundland and Labrador

DATE OF HEARING: June 11, 2003

REASONS FOR JUDGMENT : Décary J.A.

CONCURRED IN BY: Evans J.A.

Sharlow J.A.

DATED: June 23, 2003

APPEARANCES:

Ms. Katia Bustros FOR THE APPELLANT

Ms. Beryl Tucker RESPONDENT ON HER OWN

BEHALF

SOLICITORS OF RECORD:

Morris Rosenberg, FOR THE APPELLANT

Deputy Attorney General of Canada

You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.

Do not display this message anymore