The Estate of SH v Minister of Employment and Social Development

The Estate of SH v Minister of Employment and Social Development Collection Other Canada Pension Plan (CPP) Decision date 2024-05-15 Neutral citation 2024 SST 563 Reference number GP-24-224 Member Anne Clark Division General Division Decision Interlocutory order Subjects Charter appeals - Procedural requirements CPP - Disability - Qualifying period CPP - Disability - Qualifying period - Contributions (years, amount) Decision Content Citation: The Estate of SH v Minister of Employment and Social Development, 2024 SST 563 Social Security Tribunal of Canada General Division – Income Security Section Interlocutory Decision Appellant: The Estate of S. H. Representative: J. H. Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated September 21, 2023 (issued by Service Canada) Tribunal member: Anne S. Clark Decision date: May 15, 2024 File number: GP-24-224 On this page The Appellant’s Charter claim What I have to decide Reasons for my decision Conclusion The Appellant’s Charter claim [1] The Appellant, J. H. (Estate of S. H.), did not file a sufficient notice to challenge the Canada Pension Plan (CPP) under the Canadian Charter of Rights and Freedoms (Charter) in his appeal at the Social Security Tribunal. [2] The Appellant’s initial application was for benefits in relation to his spouse’s death.Footnote 1 The Minister of Employment and Social Development (Minister) refused the application. The Minister decided the Appellant’s spouse had not made sufficient contributions to the CPP during her contributory period. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division. [3] A Tribunal member held a case conference and discussed the appeal with the Appellant and the Minister’s representative. The Appellant said he still had questions about the Charter. The member told the Appellant about the general process to pursue a constitutional challenge, but said the appeal would be scheduled as a regular appeal. The Tribunal scheduled a hearing of the regular appeal. [4] After the Tribunal scheduled the hearing, the Appellant said he felt the DESDA violates section 15 of the Charter.Footnote 2 This decision is to address whether the Appellant can challenge the law under the Charter. It will not affect the outcome of the regular appeal. The appeal will proceed with the hearing on May 31, 2024. [5] A Charter challenge raises issues about the constitutional validity, applicability, or operability of a law. To pursue a Charter challenge at the Tribunal, an appellant has to fulfil several requirements. The first is to file a Notice setting out the provisions at issue, with submissions in support.Footnote 3 [6] The Appellant filed a Notice on May 2, 2024.Footnote 4 He said he believes the DESDA infringes section 15 of the Charter. [7] The Appellant wrote that his spouse would have continued working and contributing to the CPP if she didn’t have a disability. He said he believes the rules that require people with disabilities to make contributions to the CPP are unfair. He described the personal decisions he and his spouse made. He feels thousands of people would be unfairly affected by the rules. He believes the rules should be changed so people with disabilities are not restricted by rules that require people to make contributions to the CPP. [8] The Appellant made submissions and relied, in part, on information about insurance rules and legislation in the UK. He believes the rules about equality are universal and should apply to all people equally. For example, he feels the plain meaning of words like “disability”, “benefit”, “discrimination”, and “equality” should be used to ensure all people are treated the same. He said the legislation in the UK shows all people should be treated equally. He believes that means his spouse should have been eligible for benefits under the CPP even though she did not make enough contributions under the CPP. What I have to decide [9] I must decide if the Appellant’s Notice raises a constitutional issue that is sufficient to meet the requirements of the law.Footnote 5 [10] To challenge the constitutional validity, applicability, or operability of any provision of the CPP, an appellant must file a Notice setting out any provision at issue. The Notice must include submissions in support of the issue raised.Footnote 6 It must also include a valid constitutional argument.Footnote 7 [11] The requirement to file the Notice does not impose an unduly high burden on appellants who want to challenge the constitutionality of some aspect of legislation like disability benefits under the CPP.Footnote 8 However, I must reject an appellant’s Notice if it does not identify the specific provision of the law they intend to challenge or if it does not outline a valid constitutional argument.Footnote 9 It is not enough for an appellant to make indirect generalized references to discrimination or equality without clarification.Footnote 10 An appellant’s submissions must be specific enough to permit a decision-maker to see the outline of a Charter argument.Footnote 11 Reasons for my decision Why the notice is important [12] A decision maker cannot decide Charter issues without a proper understanding of the factual context that led to the alleged breach (infringement) of an appellant’s rights. The decision maker must also be able to understand which specific part of the legislation caused it.Footnote 12 This is why appellants who intend to raise Charter issues in their appeals have to file a Notice with the Tribunal.Footnote 13 [13] When a Notice is not sufficient (does not include the necessary information), an appellant’s Charter challenge cannot proceed from that step. In other words, the appellant cannot argue that their appeal should be allowed because the law violates the Charter. The Appellant’s notice [14] The Appellant’s Notice is not sufficient. It doesn’t describe the provisions he wants to challenge or how those provisions violate rights under the Charter. [15] The Appellant didn’t explain how the provisions of the CPP, or the DESDA discriminated against his spouse or otherwise violated her Charter rights. A law that treats groups of people differently only discriminates if it imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage.Footnote 14 The Appellant didn’t include any explanation to support an argument that the law discriminated by creating or exacerbating such a disadvantage. [16] The Notice doesn’t explain how the law discriminates against the Appellant’s spouse. It doesn’t address how the law discriminates against the Appellant because he was denied benefits related to his spouse’s death. The Appellant said his spouse was not able to make sufficient contributions to the CPP because she had a disability. But he hasn’t provided any explanation of his position or how the law violates a right or rights under the Charter. Specifically, he did not describe how he (or his spouse) was denied a benefit in a manner that had the effect of reinforcing, perpetuating, or exacerbating her historical disadvantage. Section 15 of the Charter [17] The Appellant said he believes DESDA violates rights under section 15 of the Charter. [18] Section 15 of the Charter prevents discrimination and promotes equality. Section 15(1) requires the government to respect equality. Section 15(2) allows the government to create programs to protect disadvantaged groups. The sections work together. The key difference is that section 15(1) requires action and section 15 (2) allows certain action but does not require it. For example, section 15(2) may allow a valid affirmative action program without violating section 15(1). [19] The Appellant’s Notice did not show how provisions of the law violate rights protected by section 15 of the Charter. [20] The Appellant’s Notice and submissions do not set out how sections of the CPP or the DESDA breach (infringe) Charter rights. The appeal is about whether the Appellant is entitled to benefits related to his spouse’s death. His challenge is about the rules that require people to contribute to the CPP to receive benefits. He believes the rules are unfair to people with disabilities. He feels the rules should change so people with disabilities do not have to contribute to the CPP. His submissions do not describe a valid argument that the law violates Charter rights. [21] The courts have determined that setting criteria to establish eligibility does not violate equality rights under the Charter. Laws that provide benefits will not benefit everyone equally. There will be differences based on individual circumstances. The legislation will only violate equality sections if it targets groups for illegitimate reasons that are outside the purpose of the law.Footnote 15 Conclusion [22] The Appellant cannot proceed with his constitutional arguments (his Charter claim). His appeal will continue as a regular appeal under the CPP. At the hearing, he can present evidence and arguments to prove why he feels he is entitled to benefits related to his spouse’s death. He will not be allowed to make any Charter arguments. [23] The Tribunal sent a Notice of Hearing to the parties. The hearing will proceed on May 31, 2024.Footnote 16 Footnotes Footnote 1 See GD2-4 and 7. Footnote 2 DESDA usually refers to the Department of Employment and Social Development Act. Footnote 3 See section 1 of the Social Security Tribunal Regulations. This document is usually called a Notice or Charter Argument Notice. Footnote 4 The Appellant’s form and argument are on the file. Footnote 5 Section 1(1) of the Social Security Tribunal Regulations Footnote 6 Section 1(1) of the Social Security Tribunal Regulations. Footnote 7 Langlois v The Attorney General Canada, 2018 FC 1108, para 13. Footnote 8 R. S. v Minister of Employment and Social Development, 2017 CanLII 84970 Footnote 9 Canada (Attorney General) v Stewart, 2018 FC 768. Footnote 10 Langlois v Canada (Attorney General), 2018 FC 1108. Footnote 11 Law v Canada (Minister of Employment and Immigration) [1999] 1 S.C.R. 497. Footnote 12 The Supreme Court of Canada explained this general principle in Mackay v Manitoba, [1989] 2 SCR 357. Footnote 13 Section 1(1) of the Social Security Tribunal Regulations. Footnote 14 See R. v Sharma, 2022 SCC 39 at paragraph 28. Footnote 15 For a recent discussion on this point see Landau v Attorney General of Canada, 2022 FCA 12 beginning at para 14. The FCA describes decisions from the Supreme Court of Canada and the Federal Court of Appeal and confirmed this point. Footnote 16 See GD0 for the hearing details.