PENSIONS |
Canada (Minister of Human Resources Development) v. Tucker
T-1711-00
2002 FCT 492, O'Keefe J.
30/4/02
16 pp.
Judicial review of Review Tribunal's decision overpayment should be forgiven--Respondent entitled to benefits under widowed spouse's allowance--Appealed overpayment, resulting because difference between reported, actual income, on ground applicant's office provided wrong information-- Subsequently informed cheques would be reduced to refund overpayment as no evidence erroneous advice given--At respondent's request, applicant reconsidered decision, came to same result--Minister's power to reconsider Old Age Security Act, s. 32 decision contained in Old Age Security Act, s. 27.1--S. 28(1) permitting appeal of reconsideration to Review Tribunal under Canada Pension Plan, s. 82-- Respondent appealed applicant's decision to Review Tribunal--Review Tribunal found respondent received erroneous advice from employee of applicant, on which respondent had relied to her detriment--Canada Pension Plan, s. 82 permitting person who is dissatisfied with Minister's decision under Old Age Security Act, s. 27.1(1), (2) to appeal to Review Tribunal--Old Age Security Act, s. 32 requiring Minister to take remedial action where satisfied that, as result of erroneous advice or administrative error, any person denied benefit to which entitled--S. 37(4)(d) permitting Minister to remit all or portion of amount of benefit paid to which not entitled provided paid as result of erroneous advice or administrative error--Application dismissed--(1) Review Tribunal governed by Canada Pension Plan, s. 82--Based on legislative framework, Review Tribunal has jurisdiction to hear appeal of Minister's reconsideration under Old Age Security Act, s. 32 as such decisions contemplated by s. 27.1--Pincombe v. Canada (Attorney General), [1995] F.C.J. No. 1320 (QL) distinguished--(2) Decision by Minister made pursuant to s. 37(4) decision contemplated by s. 27.1--For same reasons, Review Tribunal has jurisdiction to review Minister's decision made pursuant to paragraph 37(4)(d)-- Wording of s. 27.1(1), 28(1) broad enough that no justification to carve out exceptions for discretionary decisions made pursuant to ss. 32, 37(4)(d)--Minister reconsidered original decision pursuant to s. 27.1, and Act clearly providing right of appeal of s. 27.1(2) reconsideration decisions--(3) Old Age Security Act, s. 32 dealing with erroneous advice or administrative error resulting in person not receiving as much benefit as entitled to--Present case dealing with respondent receiving greater benefit than entitled to receive because of erroneous advice--S. 37(4)(d) addressing payment of benefit to which person not entitled--Respondent wants to keep amount paid to her as result of erroneous advice--This gives her right to request reconsideration pursuant to Old Age Security Act, s. 27.1(1)--When that reconsideration not favourable, may appeal reconsidered decision to review tribunal pursuant to s. 28(1)--Under Canada Pension Plan, s. 82(11) Review Tribunal may take any action in relation to any of these decisions that might have been taken by Minister-- One such decision would be to remit all or any portion of excess amount or excess of benefit payment (s. 37(4)(d))-- This is what Review Tribunal ordered--Review Tribunal's decision reasonable, one entitled to make pursuant to legislation--Canada Pension Plan, R.S.C., 1985, c. C-8, s. 82 (as am. by R.S.C., 1985 (2nd Supp.), c. 30, s. 45; S.C. 1995, c. 33, s. 35; 2000, c. 12, s. 60)--Old Age Security Act, R.S.C., 1985, c. O-9, ss. 27.1 (as enacted by S.C. 1995, c. 33, s. 16; 1997, c. 40, s. 100), 28 (as am. by S.C. 1995, c. 40, s. 16; 1997, c. 40, s. 101), 32 (as am. by S.C. 1995, c. 33, s. 18), 37(4)(d) (as am. idem, s. 23).