Minister of Employment and Social Development v. The Estate of B. T.

Minister of Employment and Social Development v. The Estate of B. T. Collection Other Canada Pension Plan (CPP) Decision date 2017-04-10 Neutral citation 2017 SSTADIS 155 Reference number AD-16-1145 Member Shu-Tai Cheng Division Appeal Division Decision Application for leave to appeal granted Related decisions SST - Minister of Employment and Social Development v. The Estate of B. T. - 2018 SST 708 - 2018-06-30 - Appeal Division Decision Content On this page Introduction Issue Law and analysis Conclusion Reasons and decision Introduction [1] On June 20, 2016, the General Division of the Social Security Tribunal of Canada (Tribunal) allowed the Respondent’s appeal of a decision of the Minister of Employment and Social Development (Applicant). The Respondent had been denied benefits on a claim for a death benefit under the Canada Pension Plan (CPP). The Applicant appealed to the General Division of the Tribunal. [2] The General Division held a hearing by teleconference, and it determined that: The province of Saskatchewan submitted a Death Benefit Application form for Mr. B. T. in December 2008; The Applicant paid the benefit to Saskatchewan; In doing so, the Applicant did not adhere to subsection 71(2) of the CPP; The Applicant’s liability to pay the benefit to the estate remains pursuant to subsection 71(1) of the CPP; and Subsection 71(3) of the CPP does not absolve the Applicant from its statutory liability to pay benefits to the Respondent. [3] Based on these conclusions, the General Division allowed the appeal. [4] The Applicant filed an application for leave to appeal (application) with the Tribunal’s Appeal Division on September 21, 2016, within the 90-day time limit. Issue [5] Does the appeal have a reasonable chance of success? Law and analysis [6] Pursuant to paragraph 57(1)(b) of the Department of Employment and Social Development Act (DESD Act), an application must be made to the Appeal Division within 90 days after the day on which the decision appealed from was communicated to the appellant. [7] According to subsections 56(1) and 58(3) of the DESD Act, “An appeal to the Appeal Division may only be brought if leave to appeal is granted” and “The Appeal Division must either grant or refuse leave to appeal.” [8] Subsection 58(2) of the DESD Act provides that “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.” [9] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following: (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or (c) 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. [10] Before leave to appeal can be granted, I need to be satisfied that the reasons for appeal fall within the enumerated grounds of appeal under subsection 58(1) of the DESD Act and that the appeal has a reasonable chance of success. The Federal Court of Canada endorsed this approach in Tracey v. Canada (Attorney General), 2015 FC 1300. [11] The Applicant’s grounds of appeal are that the General Division erred in law and that it failed to properly assess the evidence related to the status of the Public Guardian and Trustee of Saskatchewan. The Applicant’s arguments can be summarized as follows: The General Division erred in law when it stated (at paragraph 19 of its decision) that the Applicant had applied paragraph 71(2)(b) of the CPP. The General Division erred when it did not frame the issue correctly. The issue is whether Saskatchewan was the administrator of the deceased contributor’s estate. Subsections 71(1) and 71(2) of the CPP set out, respectively, the general rule that the death benefit is paid to the estate of a deceased contributor and the rules applicable when no benefit is paid to the estate. As administrator of the estate, Saskatchewan had already received the death benefit when the Respondent applied. The General Division determined that Saskatchewan was an institution other than the estate of the deceased contributor, which was an error. This conclusion is contrary to the evidence and constitutes an erroneous finding of fact that the General Division had made in a perverse or capricious manner or without regard to the material before it. The terms of the Death Benefit Application form that Saskatchewan filled out clearly indicate that it was acting for the estate of the deceased. Saskatchewan applied for and received payment of the death benefit as the court-appointed administrator of the deceased’s estate. Although Ms. G. was the estate administrator at the time that the second Death Benefit Application form was submitted in 2014, a second payment could not properly be made since the estate had already received the death benefit in 2009. [12] The General Division summarized the payment made to Saskatchewan as follows: [18] The Federal Court of Appeal explained how these provisions work in Cormier v. Canada (Minister of Human Resources Development), 2002 FCA 514. The Court stated that the only statutory liability of the Respondent to pay a death benefit is owed to the estate. If the estate fails to apply within 60 days of the death, the only effect of this failure is to trigger the discretion exercisable by the Respondent under subsection 71(2) to pay the benefit to statutorily prescribed persons, who do not include the estate of the contributor. The Court added that the Respondent’s obligation to pay the estate under subsection 71(1) continues, even if representatives of the estate do not apply for the death benefit within the 60 days of death. However, if the estate does not apply within 60 days and the Respondent makes the discretionary payment under subsection 71(2), subsection 71(3) expressly provides that the Respondent is no longer liable to pay the estate if it subsequently applies under subsection 71(1). [19] In the present appeal, Mr. B. T. passed away on December 17, 2008. There is no evidence of an application for the death benefit within 60 days of that date. The Respondent made a discretionary payment to Saskatchewan pursuant to paragraph 71(2)(b) of the CPP after Saskatchewan applied for the benefit in July 2009. Paragraph 71(2)(b) provides the discretion to the Respondent to pay the death benefit to a statutorily prescribed person or body. [13] The General Division went on to conclude that: [22] […] since the one-time payment liability of subsection 71(3) is not engaged in this case, the Tribunal finds that payment of the benefit shall be made to the Appellant. As commented by the Federal Court of Appeal above, and found by the Tribunal here, the Respondent’s obligation to pay the death benefit to the estate continues pursuant to subsection 71(1) of the CPP. The Appellant is entitled to the death benefit because the Respondent did not follow the exception to this rule set out in subsection 71(2), having paid the benefit to an entity other than what is prescribed under section 64 of the Regulations. As such, subsection 71(3) does not absolve the Respondent from its statutory liability to pay the benefit to the Appellant. [14] On this basis, the General Division allowed the appeal and ordered the Applicant to pay the CPP benefit to the Respondent. Alleged errors of law or errors of mixed fact and law [15] The General Division found that the Respondent’s estate had not applied for the death benefit within 60 days of the death. It also found that the payment to Saskatchewan had been a discretionary payment pursuant to paragraph 71(2)(b) of the CPP. [16] The Applicant argues that Saskatchewan did apply for the death benefit as the Respondent’s estate and received payment of the benefit as the estate, pursuant to subsection 71(1) of the CPP. [17] The question of whether Saskatchewan had applied for and received the death benefit as the estate of the deceased is a fundamental issue in this matter. The operation of subsections 71(1) and 71(2) of the CPP depends on whether the death benefit is payable to the estate under the general rule or whether it is payable to “such person or body as is prescribed” (i.e. an exception to the general rule). [18] Given the circumstances, whether the General Division erred in law in making its decision warrants further review. Alleged erroneous findings of fact [19] As for the Applicant’s arguments that the General Division based its decision on erroneous findings of fact that it had made in a perverse or capricious manner or without regard for the material before it, the findings at issue are: Saskatchewan did not apply for the death benefit as the estate of the deceased. Saskatchewan did not receive the death benefit as the estate of the deceased. The Applicant erred in paying the benefit to Saskatchewan. When Ms. G. applied for death benefits in 2014, the death benefits paid to Saskatchewan did not preclude paying death benefits to Ms. G. for the estate. [20] The Federal Court of Appeal in Mette v. Canada (Attorney General), 2016 FCA 276, indicated that it is unnecessary for the Appeal Division to address all of the grounds of appeal that an applicant has raised. In response to the Respondent’s arguments that the Appeal Division was required to deny leave to appeal on any ground it had found to be without merit, Dawson J.A. stated that subsection 58(2) of the DESD Act “does not require that individual grounds of appeal be dismissed. […] individual grounds may be so inter-related that it is impracticable to parse the grounds so that an arguable ground of appeal may suffice to justify granting leave.” This application is one of the situations described in Mette. [21] Because the erroneous findings of fact asserted may be inter-related to the analysis of whether the legislation was correctly applied, I will not parse the grounds of appeal any further at this stage of the proceedings. Leave to appeal granted [22] On the ground that there may be an error of law, I am satisfied that the appeal has a reasonable chance of success. [23] Because the alleged errors of law may be related to the other alleged errors, the alleged errors of mixed fact and law and errors of fact should also be considered. Conclusion [24] The application for leave to appeal is granted under paragraphs 58(1)(b) and (c) of the DESD Act. [25] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case. [26] I invite the parties to make written submissions on whether a hearing is appropriate and, if it is, on the form of the hearing as well as on the merits of the appeal.