R. R. v. Minister of Employment and Social Development

R. R. v. Minister of Employment and Social Development Collection Other Canada Pension Plan (CPP) Decision date 2017-09-21 Neutral citation 2017 SSTADIS 471 Reference number AD-17-237 Member Nancy Brooks Division Appeal Division Decision Appeal dismissed Decision Content On this page Introduction Submissions Relevant legislation The appeal division’s role Discussion Disposition Reasons and decision Introduction [1] The Appellant’s application for a retirement pension under the Canada Pension Plan (CPP) was received by the Respondent on August 27, 2015. The Respondent denied the application initially and upon reconsideration because the Appellant was too young to receive a retirement pension. [2] The General Division of the Social Security Tribunal of Canada (Tribunal) summarily dismissed the Appellant’s appeal on the basis that the appeal did not have a reasonable chance of success. [3] The Appellant appeals from that decision. [4] I have decided that an oral hearing is unnecessary and that the appeal will proceed on the basis of the documentary record pursuant to s. 37(a) of the Social Security Tribunal Regulations (Regulations). There are no gaps in the file and there is no need for clarification. Also, this form of hearing respects the requirement under the Regulations to proceed as informally and as quickly as circumstances, fairness and natural justice permit. Submissions [5] In his application to appeal, the Appellant submitted that the General Division committed an error because it failed to take into account the fact that he has spinal joint dysfunction associated with subluxation degeneration complex. [6] Tribunal staff sent a letter to the Appellant asking him to explain why he believes the General Division committed an error under s. 58(1) of the Department of Employment and Social Development Act (DESDA). In his response to this letter, the Appellant stated that he had provided an X-ray result to support his appeal and he needed the money to pay rent. [7] The Respondent made no submissions on the appeal. Relevant legislation [8] This appeal concerns whether the Appellant is entitled to a CPP retirement pension in relation to the application for a retirement pension that he made on August 27, 2015.Footnote 1 [9] Subsection 44(1) of the CPP states that a retirement pension shall be paid to a contributor who has reached 60 years of age. Section 67 of the CPP sets out the rules for when a contributor may start to receive his or her CPP retirement pension. The relevant part is s. 67(3.1), which states: 67 (3.1) For a retirement pension that commences to be payable on or after January 1, 2012 and if the applicant is not an estate, subject to section 62, if payment of the retirement pension is approved, the pension is payable for each month commencing with the latest of (a) the month in which the applicant reached sixty years of age, (b) the month following the month in which the application was received if they were under sixty-five years of age when they applied, (c) the eleventh month preceding the month in which the application was received if they have reached sixty-five years of age when they applied, but in no case earlier than the month in which they reached sixty-five years of age, and (d) the month chosen by the applicant in their application. [underlining added] The appeal division’s role [10] This is an appeal of a summary dismissal brought under s. 53(3) of the DESDA and, as such, no leave to appeal is necessary. [11] Subsection 58(1) of the DESDA specifies that the only grounds of appeal to the Appeal Division are that: 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. [12] Subsection 59(1) of the DESDA provides that the Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate, or confirm, rescind or vary the General Division’s decision in whole or in part. [13] In Canada (Minister of Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, at paras. 46–48, the Federal Court of Appeal held that neither the standards of review analysis applied by courts when they conduct judicial review of decisions made by administrative decision-makers (as discussed in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9) nor the principles engaged by an appellate court’s review of a lower court decision (as discussed in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33) necessarily apply to appeals within a multilevel administrative framework. Rather, “the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context” (at para. 46). [14] Thus, when Parliament has created a multilevel administrative framework, the scope of the appeal tribunal’s review of the lower tribunal’s decision is to be determined by the language in the governing statute. Although Huruglica dealt with a decision of the Refugee Appeal Division of the Immigration and Refugee Board, the Court’s reasoning applies equally to other multilevel administrative frameworks, such as the Social Security Tribunal. [15] Turning to the Appeal Division’s role on an appeal of a General Division decision, the DESDA permits appeals only on the grounds set out in s. 58(1). The Federal Court confirmed in Marcia v. Canada (Attorney General), 2016 FC 1367, that an appeal to the Appeal Division does not constitute a hearing de novo. Therefore, the Appeal Division must base its decision on the decision rendered by, and the record that was before, the General Division. [16] Given the unqualified wording of ss. 58(1)(a) and (b) of the DESDA, no deference is owed to the General Division on questions of natural justice, jurisdiction, or errors of law. The General Division’s decisions on such questions may be set aside if the Appeal Division concludes the decision was not correct. Discussion [17] Section 22 of the Regulations states that, before summarily dismissing an appeal, the General Division must give the appellant notice in writing and allow the appellant a reasonable period to make submissions. In compliance with s. 22 of the Regulations, the Appellant was given notice in writing of the General Division member’s intent to summarily dismiss the appeal and was allowed a reasonable time to make submissions.Footnote 2 Thus, the General Division complied with the procedural requirements before issuing the decision summarily dismissing the Appellant’s appeal. [18] Moving to the merits of the General Division member’s decision, pursuant to s. 53(1) of the DESDA, the General Division must summarily dismiss an appeal if it is satisfied that the appeal has no reasonable chance of success. [19] The issue before me is whether the General Division committed an error falling within the scope of s. 58(1) of the DESDA when it summarily dismissed the Appellant’s claim for a retirement pension. [20] The Appellant’s application for a retirement pension stated that he was born on June 13, 1964, and he checked the box to indicate that he wished his retirement pension to start “as soon as I qualify”. There is no dispute about the Appellant’s age and the Respondent confirms this date has been verified by reference to the Social Insurance Registry.Footnote 3 The Appellant was 51 years old when he applied for a retirement pension. [21] Subsection 44(1) of the CPP states that a retirement pension shall be paid to a contributor who has reached 60 years of age. Subsection 67(3.1) of the CPP provides in its relevant parts that if payment of a retirement pension is approved, the pension will commence on the later of the month in which the applicant reached 60 years of age and the month following the month the application was received if the applicant was under 65 years of age when he or she applied. The legislation is unambiguous that an applicant cannot receive a retirement pension before he or she reaches the age of 60. Applying s. 67(3.1) to the Appellant’s circumstances, regardless of the fact that he filed an application for a retirement pension in 2015, he cannot receive a pension until he is 60 years of age, which will not occur until June 13, 2024. [22] The CPP provisions relating to payment of a retirement pension do not take into account an applicant’s health condition or financial requirements and these factors, which are put forward by the Appellant in support of his appeal, are therefore irrelevant to whether a retirement pension will be paid. [23] The General Division member correctly stated and applied the law applicable to the availability of a retirement pension. In my view, she correctly concluded that the appeal had no reasonable chance of success; indeed, the appeal had no chance of success given the Appellant’s age. Disposition [24] The Appellant has not put forward any basis for me to find that the General Division member committed an error falling within the scope of s. 58(1) of the DESDA. Accordingly, I dismiss the appeal. Footnotes Footnote 1 GD2-7 to GD2-12. Footnote 2 GD0. Footnote 3 GD4-2, para. 7.