Simon's Megalomaniacal Legal Resources

Forms - Administrative Forms

This is a fascinating (and largely new) issue. Administrative law is typically replete with forms, information sheets, marginal notes and more - material that is intended to give the user/reader 'instructions' about the documents contents and - implicitly - the implications of completing them this way or that, which is hard to distinguish from giving legal advice. Given that this material is directed at assisting people in completing applications and such, things that can have huge implications for their financial and other aspects of their well-being, these form-designers are motivated to duck acknowledging that. Necessarily, this creates the issue of user/reader remedies in the case of mis-advice.

. Smith v. Canada (Attorney General)

In Smith v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered a predictable development in the law where OAS applicants claimed that they had been misled (or rather, inadequately advised) by "the Service Canada website, the application forms, and certain information sheets" as to their OAS rights and responsibilities. This same issue, while relatively new in the administrative context, is known in the criminal context under the defence of 'officially-induced error' [see Lévis (City) v. Tétreault; Lévis (City) v. 2629-4470 Québec inc. (SCC, 2006), paras 20-27]:

[2] Dissatisfied with the loss of GIS and ALW benefits for the period from April 2016 (when the OAS Pension began) to September 2016, and believing that the loss was the result of erroneous advice and/or an administrative error in the administration of the Act, the appellants then each sought the application of section 32 of the Act to remedy the situation. This provision reads as follows:

"32 Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied a benefit, or a portion of a benefit, to which that person would have been entitled under this Act, 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 had the erroneous advice not been given or the administrative error not been made."

[3] The appellants argued that the written material that Service Canada provided (the appellants cite the Service Canada website, the application forms, and certain information sheets – hereinafter, the Material) never informed them that they could avoid the loss of retroactive GIS and ALW benefits by applying for such benefits at the same time as Mr. Smith applied for his OAS Pension. They argued that the Material led them to believe that they had to wait until the application for the OAS Pension had been granted before applying for the related benefits. It was only months later, in a conversation with a Service Canada employee, that they were advised that this was not the case.

[4] The Service Canada decisions in issue found that (i) there had been an administrative error in that Service Canada had failed to respect its policy of immediately providing the forms necessary to apply for GIS and ALW benefits in cases in which an OAS Pension applicant indicated a desire to apply to these benefits, and (ii) if that administrative error had not occurred, the appellants would have been able to apply in April 2017, one month after the application for the OAS Pension. Accordingly, the two similar decisions respectively granted the appellants GIS and ALW benefits retroactive 11 months to May 2016 instead of September 2016. The decisions also found that there had been no erroneous advice, saying:

"There is no finding that erroneous advice was given to you by an employee of Service Canada, which caused the delay of your application for the [GIS or ALW benefit, as the case may be] being received. Your interpretation of information sheets and the Service Canada website is what caused the delay and this is not considered erroneous advice."

....

[13] Having concluded that Service Canada found that the Material was not erroneous, the next step is to consider the appellants’ argument that that conclusion was unreasonable. The appellants argue that the Material does not instruct people seeking GIS and ALW benefits to apply at the same time as they seek the OAS Pension, and suggests that they must wait until the OAS Pension has been granted. The appellants point to several parts of the Material that are arguably ambiguous and fail to highlight the importance of promptly seeking GIS and ALW benefits to avoid a loss of retroactive benefits.

[14] In my view, the appellants’ arguments amount mainly to criticisms of what the Material does not say rather than what it does say. While the Material might have gone into more detail and been more specific (and it appears that changes were subsequently made by Service Canada to clarify how applicants should proceed), I see nothing that is misleading such that an applicant in a time-sensitive situation would not inquire with an employee of Service Canada about their specific circumstances. The following comments in Mauchel v. Canada (Attorney General), 2012 FCA 202 at para. 15, in the context of an argument that the website for assisting with employment insurance claims was misleading, are apt in the present appeal:

Since the website does not purport to deal with the specifics of every person’s particular situation, claimants cannot reasonably treat information on it as if it were personally provided to them by an agent in response to an inquiry about their eligibility on given facts.

[15] I am not convinced that it was unreasonable for Service Canada to conclude that the Material was not erroneous. ...

. Smith v. Canada (Attorney General)

In Smith v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered an appeal from a JR against Service Canada (who here was administering the OAS system), raising the 'repair' (my term) provisions of s.32 of the Old Age Security Act:

[2] Dissatisfied with the loss of GIS and ALW benefits for the period from April 2016 (when the OAS Pension began) to September 2016, and believing that the loss was the result of erroneous advice and/or an administrative error in the administration of the Act, the appellants then each sought the application of section 32 of the Act to remedy the situation. This provision reads as follows:

"32 Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied a benefit, or a portion of a benefit, to which that person would have been entitled under this Act, 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 had the erroneous advice not been given or the administrative error not been made."

....

[15] I am not convinced that it was unreasonable for Service Canada to conclude that the Material was not erroneous. I should note that, in reaching this conclusion, it is not necessary to comment on the Federal Court’s analysis in this regard or the respondent’s arguments thereon before the Federal Court.

[16] Based on the conclusions above, the appellants’ argument that there was an earlier administrative error (to which section 32 of the Act would apply) in the creation of the application process that resulted in the appellants losing benefits must also fail. Service Canada reasonably found that the loss of benefits resulted from the appellants’ interpretation of the Material (and apparently from their failure to seek advice particular to their situation), and not from any flaw in the application process.