SOCIAL SECURITY TRIBUNAL DECISION Appeal Division

Transcription

1 Citation: S. V. v. Minister of Employment and Social Development, 2016 SSTADIS 87 Tribunal File Number: AD BETWEEN: S. V. Appellant and Minister of Employment and Social Development (formerly known as the Minister of Human Resources and Skills Development) Respondent SOCIAL SECURITY TRIBUNAL DECISION Appeal Division DECISION BY: Janet Lew DATE OF DECISION: February 25, 2016

2 REASONS AND DECISION OVERVIEW [1] The Appellant appeals a decision dated July 21, 2015 of the General Division, whereby it summarily dismissed his appeal of a decision denying his request for greater retroactivity of an Old Age Security pension under the Old Age Security Act. The General Division summarily dismissed the appeal, given that it was satisfied that it did not have a reasonable chance of success. [2] The Appellant filed an appeal of the decision of the General Division on October 6, 2015 (the Notice of Appeal ). No leave is necessary in the case of an appeal brought under subsection 53(3) of the Department of Employment and Social Development Act (DESDA), as there is an appeal as of right when dealing with a summary dismissal from the General Division. Having determined that no further hearing is required, this appeal before me is proceeding pursuant to subsection 37(a) of the Social Security Tribunal Regulations. ISSUES [3] The issues before me are as follows: 1. Is a standard of review analysis applicable when reviewing decisions of the General Division? 2. Did the General Division err in choosing to summarily dismiss the Appellant s appeal? 3. Did the General Division err in determining that the Appellant was unable to cancel his retirement pension in favour of a disability pension under the Canada Pension Plan?

3 BACKGROUND [4] The key dates are as follows: (a) (b) June birthdate of Appellant and September 2013 the Respondent received the Appellant s application for an Old Age Security pension. [5] An Old Age Security pension was paid retroactively to the Appellant from October The Appellant requested greater retroactivity of payment of the pension to June 2011, when he turned 65 years old. The Respondent maintained its position that the Appellant had been paid the maximum retroactivity permitted under the applicable legislation. The Appellant appealed to the General Division. [6] On June 12, 2015, the General Division gave notice in writing to the Appellant, advising that it was considering summarily dismissing the appeal. The General Division invited the Appellant to provide detailed written submissions by no later than July 17, 2015, if he believed that the appeal should not be summarily dismissed, and that he should explain why his appeal had a reasonable chance of success. The Appellant did not respond to the letter dated July 17, 2015 from the General Division. [7] The General Division rendered its decision on July 21, The General Division found that the Old Age Security Act limits the maximum retroactivity of Old Age Security pension payments to eleven months prior to receipt of an application for an Old Age Security pension, and that in this case, the Appellant was receiving the maximum retroactivity permitted by the Old Age Security Act and the Regulations thereto. [8] On September 4, 2015, the Appellant filed an appeal from the summary dismissal decision of the General Division.

4 SUBMISSIONS [9] The Appellant submits that he is entitled to greater retroactivity of payment of an Old Age Security pension, as he has been the subject of racial discrimination in employment settings. He seeks some financial assistance for short-term economic survival. [10] The Appellant filed additional submissions on November 16, He submits that the General Division erred when it wrote that generally speaking, ignorance of the law is no excuse, as Service Canada representatives had not properly and adequately informed him of his entitlement to an Old Age Security pension. He further submits that there is no openness and a lack of transparency about the availability of the benefit. The Appellant further submits that the General Division lacked integrity by refusing him his right to fairness and equity [as an immigrant and newcomer]. [11] On November 20, 2015, the Social Security Tribunal wrote to the Appellant, requesting that he identify any alleged errors in the General Division decision, under subsection 58(1) of the DESDA. On the same day, the Respondent filed submissions. [12] The Respondent submits that the General Division correctly stated and applied the test as to when it must summarily dismiss an appeal. The Respondent further submits that the General Division also correctly stated the law as it relates to the retroactivity of Old Age Security pension payments and reasonably applied it to the facts. The Respondent submits that the earliest the Appellant could receive payment is October 2012, the month in which his pension payments commenced and that the appeal therefore had no reasonable chance of success. The Respondent submits that the General Division did not err in summarily dismissing the appeal. The Respondent submits that the General Division s decision contains no reviewable error to permit the intervention of the Appeal Division. [13] The Appellant filed another letter with the Social Security Tribunal on February 23, 2016, enquiring about the status of his appeal. He did not identify any alleged errors in the General Division decision.

5 ISSUE 1: STANDARD OF REVIEW [14] Counsel for the Respondent raised the issue of the standard of review. I have addressed the issue of the applicability of the standard of review in a number of recent decisions, including in C.A.S. v. Minister of Employment and Social Development (January 21, 2016), SSTAD (currently unreported). I have concluded, based on the prevailing jurisprudence of the Federal Court of Appeal in Canada (Attorney General) v. Jean, 2015 FCA 242 (CanLII), that notwithstanding the submissions of counsel for the Respondent, that I must refrain from borrowing from the terminology and the spirit of judicial review in an administrative appeal context and restrict myself to determining whether the General Division, in the proceedings before me, erred in summarily dismissing the appeal before it, or otherwise erred in law in calculating the allowable retroactivity of payment of an Old Age Security pension, and if so, to then determine the appropriate remedy. [15] As the Federal Court of Appeal has pointed out in Jean, the mandate of the Appeal Division is conferred to it by sections 55 to 69 of the DESDA, where it hears appeals pursuant to subsection 58(1) of the DESDA. Subsection 58(1) of the DESDA sets out the grounds of appeal, and subsection 59(1) of the DESDA sets out the powers of the Appeal Division. The only grounds of appeal under subsection 58(1) are as follows: (a) (b) (c) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

6 ISSUE 2: DID THE GENERAL DIVISION ERR IN CHOOSING TO SUMMARILY DISMISS THE APPELLANT S APPEAL? [16] The Appellant did not address the issue of the appropriateness of the summary dismissal of his appeal before the General Division, but I will nonetheless briefly address it. [17] Subsection 53(1) of the DESDA requires the General Division to summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success. If the General Division either failed to identify the test or misstated the test altogether, this would qualify as an error of law. [18] Here, the General Division correctly stated the test for a summary dismissal by citing subsection 53(1) of the DESDA. It is insufficient, however, to simply recite the test for a summary dismissal set out in subsection 53(1) of the DESDA, without properly applying it. Having correctly identified the test, the second step required the General Division to apply the law to the facts. [19] In determining the appropriateness of the summary dismissal procedure and deciding whether an appeal has a reasonable chance of success, a decision-maker must determine whether there is a triable issue and whether there is any merit to the claim. As long as there is an adequate factual foundation to support an appeal and the outcome is not manifestly clear, then the matter is not appropriate for a summary dismissal. A weak case is not appropriate for a summary disposition, as it necessarily involves assessing the merits of the case and examining the evidence and assigning weight to it. [20] The General Division recognized when a summary dismissal is appropriate. The General Division found that there was no reasonable chance for the Appellant to succeed on an appeal, given the law and the facts. The General Division found that the Old Age Security Act and the Regulations apply and that there are no provisions by which the maximum retroactivity sections can be bypassed. [21] The General Division considered whether, on the facts before it, the appeal met the high threshold set out under subsection 53(1) of the DESDA. As the General

7 Division was satisfied that the appeal was without any merit, it rightly concluded that the appeal had no reasonable chance of success, and properly summarily dismissed it on that basis. ISSUE 3: DID THE GENERAL DIVISION ERR IN DETERMINING THE MAXIMUM RETROACTIVITY OF THE OLD AGE SECURITY PENSION? [22] The Appellant is seeking greater retroactivity of payment of an Old Age Security pension. However, he did not cite any legal authorities to support his submissions. [23] The Appellant alleges that he has been the subject of racial discrimination in employment settings and that he requires financial assistance, but these do not speak to any of the grounds of appeal under subsection 58(1) of the DESDA. [24] The Appellant alleges that the Respondent failed to properly and adequately inform him of his entitlement to an Old Age Security pension. This submission too does not speak to any of the grounds of appeal under subsection 58(1) of the DESDA. In any event, there is no duty on the Respondent to directly inform individuals of the availability of the pension. [25] The Appellant further alleges that the General Division lacked integrity by refusing his right to fairness and equity [as an immigrant and newcomer]. This submission presupposes that there is an entitlement to greater retroactivity than that set out under the Old Age Security Act for some members or classes of applicants, but these provisions apply equally to all applicants. The General Division has no equitable jurisdiction (and neither does the Appeal Division) to grant the relief sought by the Appellant. The General Division was bound to follow the Old Age Security Act and the Regulations, and was limited in how much retroactivity it could grant. [26] The Respondent submits that the General Division correctly stated the law with respect to retroactivity of Old Age Security pension payments. The Respondent refers to section 8 of the Old Age Security Act and to subsections 5(1) and 5(2) of the Old Age Security Regulations. Section 8 of the Old Age Security Act and paragraph 5(2) of the Regulations are reproduced in the Respondent s submissions of November 20, 2015.

8 [27] The Old Age Security Act and the Regulations are very specific as to the length of retroactivity of payment of an Old Age Security pension. When an applicant has attained the age of 65 before the day in which the application is received, the approval of the application is effective as of the latest of the day that is one year before the day on which the application was received. And, in the case of an applicant who attained the age of 65, approval of the application can be effective as of such earlier day, not before the later of a day one year before the day on which the application was received... Payment of a pension to any person is to start in the first month after the application has been approved. [28] The General Division referred to and applied these sections in determining the maximum retroactivity to which the Appellant was entitled under the statute. The General Division properly set this out in its analysis and applied the law to the facts. [29] Hence, for an application for Old Age Security pension which was received in September 2013, the approval date is September 2012, a year before the day that is one year before the day on which the application was received. Payments could not commence earlier than October 2012, the month after the application has been approved. [30] I am not persuaded that the General Division erred in its interpretation of the Old Age Security Act or the Regulations. The General Division identified the applicable provisions of the Old Age Security Act and the Regulations and appropriately applied them to the facts, which were not in dispute between the parties. There is no evidence before me that the General Division failed to follow the Old Age Security Act or the Regulations, or that it erred in its interpretation of the applicable statute. [31] Finally, an appellant s financial needs are irrelevant in determining the maximum retroactivity to which one is entitled, as the Old Age Security Act does not provide for this consideration in these circumstances.

9 CONCLUSION [32] Given the considerations above, the Appeal is dismissed. Janet Lew Member, Appeal Division