LR v Minister of Employment and Social Development

LR v Minister of Employment and Social Development Collection Old Age Security (OAS) and Guaranteed Income Supplement (GIS) Decision date 2022-11-28 Neutral citation 2022 SST 1377 Reference number GP-22-611 Member Jean Lazure Division General Division Decision Appeal summarily dismissed Related decisions SST - L. R. v. Minister of Employment and Social Development - 2019 SST 1588 - 2019-11-29 - General Division SST - L. R. v. Minister of Employment and Social Development - 2019 SST 523 - 2019-05-30 - Appeal Division SST - LRv Minister of Employment and Social Development - 2020 SST 203 - 2020-03-03 - Appeal Division SST - LR v Minister of Employment and Social Development - 2021 SST 684 - 2021-09-23 - General Division SST - LR v Minister of Employment and Social Development - 2022 SST 208 - 2022-03-28 - Appeal Division Subjects OAS - Pension OAS - Pension - Incarceration Decision Content [TRANSLATION] Citation: LR v Canada Employment Insurance Commission, 2022 SST 1377 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: L. R. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated March 29, 2022 (issued by Service Canada) Tribunal member: Jean Lazure Decision date: November 28, 2022 File number: GP-22-611 On this page Decision Overview What summary dismissal means What I have to decide Reasons for my decision Conclusion Decision [1] The appeal is summarily dismissed. This means there won’t be a hearing and the Tribunal is closing the appeal file. [2] The Appellant’s (L. R.’s) Old Age Security (OAS) benefits are effectively suspended while he is incarcerated in a federal penitentiary. [3] This decision explains why I am summarily dismissing the appeal. Overview [4] The Appellant applied for an OAS pension. The Minister of Employment and Social Development (Minister) received his application on February 21, 2017. [5] On October 30, 2017, the Minister wrote to the AppellantFootnote 1 and approved his OAS pension application. The Minister also said that [translation] “benefits are suspended for individuals while they are incarcerated for a sentence of two years or more to be served in a federal penitentiary,”Footnote 2 which had been the Appellant’s case since April 1999. [6] On November 9, 2017, the Appellant wrote to the MinisterFootnote 3 to get certain information about the Minister’s refusal to give him his pension while he was in prison. [7] On December 20, 2017, the Minister wrote to the AppellantFootnote 4 to give him certain information and to uphold its initial decision. [8] On February 28, 2018, the Appellant appealedFootnote 5 the Minister’s decision to the Tribunal’s General Division. [9] On November 29, 2019, my colleague Antoinette Cardillo issued a decisionFootnote 6 dismissing the Respondent’s appeal. The matter was then the subject of several decisions by our General Division and Appeal Division. [10] On March 28, 2022, my colleague Jude Samson, from our Appeal Division, allowed the Appellant’s appeal, saying: “The matter is returned to the General Division so that the constitutional challenge can follow the proper process, led by a different member.”Footnote 7 [11] On October 6, 2022, my colleague Nathalie Léger, from our General Division, made an interlocutory decision. She [translation] “put an end to the Canadian Charter of Rights and Freedoms (Charter) process in this matter because the Appellant didn’t provide the required record for the appeal to proceed under the Charter process.”Footnote 8 She also said that [translation] “Since the Appellant hadn’t filed a valid record, the appeal would proceed as a regular appeal.”Footnote 9 [12] It was after that decision that the file was assigned to me. What summary dismissal means [13] The Tribunal has to summarily dismiss an appeal if it considers that the appeal has no reasonable chance of success.Footnote 10 If an appeal doesn’t have a reasonable chance of success, it means an appellant doesn’t have an argument that could possibly succeed. No matter what evidence or arguments an appellant might present at a hearing, the appeal still would not have a reasonable chance of success.Footnote 11 [14] If the Tribunal summarily dismisses an appeal, there won’t be a hearing and the Tribunal will close the appeal file. [15] On October 19, 2022, I sent the Appellant a letterFootnote 12 explaining that I planned to summarily dismiss his appeal. I asked him to tell me in writing why he thinks his appeal should not be summarily dismissed. I gave the Appellant until November 21, 2022, to reply. [16] The Appellant hasn’t replied to my letter or sent in submissions (arguments). What I have to decide [17] I have to decide whether the Appellant’s appeal has a reasonable chance of success. Reasons for my decision [18] The Appellant’s appeal doesn’t have a reasonable chance of success. [19] The Appellant’s appeal concerns the non-payment of an OAS pension during his period of incarceration in a federal penitentiary. It appears that the Appellant has been incarcerated in a federal penitentiary since April 1999, which the Appellant has never disputed.Footnote 13 [20] Section 5(3) of the Old Age Security ActFootnote 14 reads as follows: Incarcerated persons (3) No pension may be paid in respect of a period of incarceration — exclusive of the first month of that period — to a person who is subject to a sentence of imprisonment (a) that is to be served in a penitentiary by virtue of any Act of Parliament; [21] The Appellant’s February 28, 2018, appeal could have announced a challenge to that provision under the Charter.Footnote 15Such challenges are also subject to a specific procedure. [22] My colleague Nathalie Léger’s decision, which says that the appeal had to proceed as a regular appeal, wasn’t appealed by the Appellant. So, there is no challenge to the above provision under the Charter in this case. [23] As a result, according to the above paragraph, the Appellant can’t get an OAS pension while serving a prison sentence in a penitentiary under federal law. Conclusion [24] I therefore find that not paying the Appellant an OAS pension while he is incarcerated in a federal penitentiary is correct and in accordance with the law. [25] This means the appeal doesn’t have a reasonable chance of success. [26] The appeal is summarily dismissed. Footnotes Footnote 1 Pages GD1-8 and GD2-6 of the file. Footnote 2 Pages GD1-8 and GD2-6. Footnote 3 Page GD2-5. Footnote 4 Pages GD1-10 and GD2-3. It should be noted that this letter didn’t have the usual title of “Reconsideration decision letter.” Despite this, the parties interpreted the letter as a reconsideration decision, so much so that the Appellant appealed that decision to the Tribunal, and the Appellant’s appeal has been before the Tribunal for more than four years. Footnote 5 Page GD1-1. Footnote 6 Page AD1A-1. Footnote 7 March 28, 2022, Appeal Division decision at page 2. Footnote 8 October 6, 2022, decision at page 2. Footnote 9 October 6, 2022, decision at page 5. Footnote 10 See section 53(1) of the Department of Employment and Social Development Act; and Miter v Canada (Attorney General), 2017 FC 262. Footnote 11 See The Estate of JB v Minister of Employment and Social Development, 2018 SST 564 at para 23. Footnote 12 Before the Tribunal summarily dismisses an appeal, it has to notify an appellant in writing about what it plans to do. It has to give the appellant a reasonable amount of time to make submissions (arguments) too. Section 22(1) of the Social Security Tribunal Regulations says this. A copy of the letter I sent to the Appellant is at page ISN-01 of the file. Footnote 13 This seems to be confirmed at pages GD1-1 and GD1-6, and isn’t denied anywhere by the Appellant. Footnote 14 R.S.C. (1985), c. O-9. Footnote 15 In particular, at pages GD1-5 and GD1-6 of the appeal file, where the Appellant makes specific reference to the Charter.