Black v Canada (Receiver General), 2019 ABQB 918

Court of Queen’s Bench of Alberta Citation: Black v Canada (Receiver General), 2019 ABQB 918 Date: 20191203 Docket: 1903 01646 Registry: Edmonton Between: William Ernest Black Plaintiff - and - Receiver General for Canada and Her Majesty the Queen as Represented by the Minister of Families, Children, and Social Development Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.S. Little _______________________________________________________ I Introduction [ 1 ] Mr.

Black was convicted twice of defrauding the federal Old Age Security program (OAS) in his forties. A restitution order was granted and registered in Alberta as part of his first conviction, but its registration has now expired. He is now of an age where he can collect benefits. OAS, relying on a statutory right of set-off, is withholding half of his benefits. [ 2 ] Mr. Black applies for a declaration that OAS is not entitled to make deductions from his payments.

He argues two grounds: first, that it is not clear how much the debt is and, second, that any debt he may have had to OAS is statute barred. [ 3 ] The Crown argues that this Court does not have jurisdiction over what is a federal matter and, second, that any limitations argument applies to enforcement mechanisms other than OAS’s statutory right of set off. II Facts

[ 4 ] In 1991, Mr. Black pled guilty in Alberta to defrauding the federal Old Age Security program (OAS). He used death certificates of other people to create fake profiles which he used to apply for and obtain OAS benefits. He received a sentence of two years less a day, and a restitution order was granted and registered in Alberta for $60,922.22 unrecovered from the fraud. That restitution order was renewed in 2001 for about $90,000.

That registration has now expired. [ 5 ] In 1992 he was convicted in British Columbia of a similar fraud and given a six year sentence on the basis that his Alberta conviction obviously had not deterred him: R v Black , 1993 CarwellBC 953. [ 6 ] He served his time for both convictions and is now of an age where he is entitled to OAS benefits. OAS, however, has reduced those benefits payable by half in an effort to collect all or some of the money stolen from it.

A July 6, 2017 letter from Service Canada refers to an overpayment to him of $70,157.13 and a CPP amount owed to him of $8032.52, one half of which will be released to him and one-half of which will be applied to his overpayment.

Remaining CPP benefits would also be reduced by 50%. [ 7 ] A July 24, 2017 letter from Service Canada refer to an order to make restitution in the amount of $70,157.13 to Her Majesty in Right of Canada” and that pursuant to section 37(2.1) of the Old Age Security Act, the amount owing may be deducted from benefits otherwise available to him from OAS or other plans administered by the same department. [ 8 ] Mr. Black argues that the amount referred to in the two letters does not match the restitution order or its renewal.

He seeks a declaration clarifying the amount of the alleged overpayment and/or that, whatever the amount, it is not collectible because the registration of the restitution order has expired. III Jurisdiction [ 9 ] The Crown argues that because this application is for declaratory relief against a federal board, commission, or other tribunal, the Federal Court has exclusive jurisdiction to hear this matter: Federal Courts Act, RSC 1985, c F-7 s. 1 federal board, commission or other tribunal means any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under

an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown, other than the Tax Court of Canada or any of its judges, any such body constituted or established by or under a law of a province or any such person or persons appointed under or in accordance with a law of a province or under

section 96 of the Constitution Act, 1867 ; (office fédéral) Relief against the Crown 18

(1) Subject to

section 28 (which assigns certain appeals to the Federal Court of Appeal), the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. (parentheses added) [ 10 ] The Old Age Security Act does not create a federal board, commission or other tribunal as such. It assigns responsibility for its administration to the Minister of Employment and Social Development.

But the definition of a federal board, commission or other tribunal, including as it does a person who exercises jurisdiction over the subject matter of the Act , encompasses the Minister. Section 18(1) therefore applies to give exclusive jurisdiction to the Federal Court. [ 11 ] Even if the Minister is not a federal board, commission or other tribunal for the purposes of

section 18 of the Federal Court Act , such that the Federal Court does not have exclusive jurisdiction, I find that this Court ought not to take jurisdiction. [ 12 ]

Section 27.1 of the Old Age Security Act sets out a comprehensive code for people dissatisfied with the amount of benefits they receive. They first write the Minister and, if dissatisfied with the response, appeal to the Social Security Tribunal: Request for reconsideration by Minister 27.1

(1) A person who is dissatisfied with a decision or determination made under this Act that no benefit may be paid to the person, or respecting the amount of a benefit that may be paid to the person, may, within ninety days after the day on which the person is notified in writing of the decision or determination, or within any longer period that 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. Decision of Minister

(2) The Minister shall, without delay after receiving a request referred to in subsection (1) or (1.1), reconsider the decision or determination, as the case may be, and may confirm or vary it and may approve payment of a benefit, determine the amount of a benefit or determine that no benefit is payable, and shall without delay notify, in writing, the person who made the request of the Minister’s decision and of the reasons for it. Appeal — benefits 28

(1) A person who is dissatisfied with a decision of the Minister made under

section 27.1, including a decision in relation to further time to make a request, or, subject to the regulations, any person on their behalf, may appeal the decision to the Social Security Tribunal established under

section 44 of the Department of Employment and Social Development Act. [ 13 ] If dissatisfied with the results of the decision of the Social Security Tribunal, which clearly is a tribunal for the purposes of

section 18 of the Federal Court Act , a person’s recourse is an application to the Federal Court for judicial review. [ 14 ] Mr. Black in his affidavit refers only to the two letters he received from Service Canada and not to any formal steps he took to clarify his apparent confusion. When there exists a comprehensive code for appeals from the decision of a government official, a court should not take jurisdiction except in exceptional circumstances, which do not exist here: CB Powell Ltd v Canada (Border Services Agency) , 2010 FCA 61 at para 31 .

IV Substantive Analysis [ 15 ] If I am wrong in that analysis and this Court has and should take jurisdiction, I will deal with the substantive issue. [ 16 ] Mr. Black obtained a federal benefit to which he was not entitled.

That created a debt to the Crown under s. 37(2) of the Old Age Security Act which it is entitled to collect by way of set-off from OAS or other Crown payments due to him under s. 37(2.1): Recovery of amount of payment 37(2) If a person has received or obtained 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, the amount of the benefit payment or the excess amount, as the case may be, constitutes a debt due to Her Majesty and is recoverable at any time in the Federal Court or any other court of competent jurisdiction or in any other manner provided by this Act.

Set-off

(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. [ 17 ] Interest and penalties form part of the collectible debt under ss. 37(2.01) and 37(2.02). [ 18 ] Mr. Black’s fraudulent receipt of old age security benefits to which he was not entitled created a debt to the Crown.

A restitution Order by this Court, a “court of competent jurisdiction” for the purposes of section 37(2), recognized that debt. Registration of that Order in Alberta permitted the creditor, in this case the Crown, to enforce the judgment in Alberta by means such as seizure of property and garnishee under the Civil Enforcement Act , RSA 2000, c C-15 which requires renewal of the judgment every ten years. But with or without registration of the restitution Order, Mr.

Black owed a debt to the Crown collectible by the Crown “in any other manner provided by this ( Old Age Security ) Act ” which in this case is by way of statutory set-off under section 37(2.1).

Provincial legislation requiring renewal of a judgment in order to take advantage of provincial collection methods cannot have the effect of eliminating a debt to the federal Crown. [ 19 ] Statutory set-off does not require legal process, whether provincial or federal: Mintzer v R , 1995 CarswellNat 1541 , Herold v Canada , 2013 FCA 19 at para 5 . [ 20 ] Expiry of the registration of the judgment in Alberta does not have the effect of eliminating the debt owed to the federal Crown, only the creditor’s ability to enforce it in Alberta under the Civil Enforcement Act .

The Crown does not need to rely on the Civil Enforcement Act to exercise its set-off rights. [ 21 ] Mr. Black argues that he did not personally benefit from the fraud of which he was convicted, ie. he never saw any of the

money, which went to his accomplices. This is a late date to raise that argument, two courts of competent jurisdiction having found him guilty of the offence of fraud and one of which having specifically recognized that that fraud created a debt to the Crown. In any event, a bank robber is no less a bank robber merely because his partners cut him out of his share of the take. V Conclusion [ 22 ] This Court does not have jurisdiction over the dispute between Mr. Black and the Crown. If it does, this is not an appropriate case for it to exercise that jurisdiction. If it did, Mr.

Black is not entitled to the relief he seeks. [ 23 ] His application is dismissed. [ 24 ] The parties can return to me to settle costs if they cannot agree. Heard on the 29 th day of November, 2019. Dated at the City of Edmonton, Alberta this 3 nd day of December, 2019. J.S. Little J.C.Q.B.A. Appearances: Allan Sproule Skovberg Hinz for the Plaintiff Colin Stephens Prairie Regional Office for the Defendants