ZM v Minister of Employment and Social Development

ZM v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2021-11-05 Neutral citation 2021 SST 658 Reference number AD-21-352 Member Janet Lew Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - ZM v Minister of Employment and Social Development - 2021 SST 549 - 2021-08-11 - General Division Decision Content Citation: ZM v Minister of Employment and Social Development, 2021 SST 658 Social Security Tribunal of Canada Appeal Division Leave to Appeal Decision Appellant: Z. M. Respondent: Minister of Employment and Social Development Decision under appeal: General Division decision dated August 11, 2021 (GP-21-841) Tribunal member: Janet Lew Decision date: November 5, 2021 File number: AD-21-352 On this page Decision Overview Issues Analysis Conclusion Decision [1] Leave (permission) to appeal is refused because the appeal does not have a reasonable chance of success. The appeal will not be going ahead. Overview [2] The Applicant, Z. M. (Claimant), is appealing the General Division decision. The General Division determined that the Respondent, Minister of Employment and Social Development (Minister), had correctly calculated the Claimant’s contributory period, which it used to decide the Claimant’s retirement pension rate. The General Division concluded that the Claimant was not entitled to a higher Canada Pension Plan retirement pension rate. [3] The Claimant argues that the General Division member was biased and failed to follow the rules of procedural fairness. He also argues that the General Division made several factual errors. [4] I have to decide whether the appeal has a reasonable chance of success.Footnote 1 Having a reasonable chance of success is the same thing as having an arguable case.Footnote 2 Issues [5] The issues are as follows: a) Is there an arguable case that the General Division was biased? b) Is there an arguable case that the General Division failed to follow the rules of procedural fairness? c) Is there an arguable case that the General Division made several factual errors about the Claimant’s contributions to the Canada Pension Plan? Analysis [6] The Appeal Division must be satisfied that the appeal has a reasonable chance of success before it gives an applicant permission to go ahead with their appeal. A reasonable chance of success exists if there is a certain type of error.Footnote 3 These errors are about whether the General Division: a) Failed to make sure that the process was fair; b) Failed to decide an issue that it should have decided, or decided an issue that it should not have decided; c) Made an error of law; or d) Based its decision on an important factual error. (The error has to be perverse, capricious, or without regard for the evidence before it.) [7] Once an applicant gets permission from the Appeal Division, they move to the actual appeal. There, the Appeal Division decides whether the General Division made an error, and if so, decides how to fix that error. Is there an arguable case that the General Division member was biased? [8] The Claimant argues that the General Division member was biased in two ways: The General Division member hesitated before letting him cross-examine the Minister’s representative [9] The Claimant argues that the General Division member was biased because he hesitated before letting him ask questions of the Minister’s representative. The Claimant argues that the member’s hesitation showed bias because he did not want to compel the Minister to produce what he considered important evidence for the Claimant’s case. [10] I see no merit to this allegation. The member had established procedural rules,Footnote 4 which it deemed the Claimant was not following. The member reminded the Claimant that, typically, he did not allow for cross-examination of a witness if that witness did not give any evidence.Footnote 5 And, once the parties had finished giving evidence, then that would have ended any chance for cross-examination of witnesses. The parties would then move on to oral arguments. [11] Even so, the member allowed the Claimant to go ahead with full cross-examination of the Minister’s representative. He allowed for cross-examination, even though the Minister, at that point, had already finished making oral arguments. [12] The test for whether a reasonable apprehension of bias exists is whether an informed person conclude, after they have looked at the facts realistically and practically, and thought about the matter. “Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”Footnote 6 [13] Here, the Claimant simply reminded the parties of the procedural rules that he had set. The member then granted the Claimant’s request. He let the Claimant go ahead with cross-examining the Minister’s representative, despite the fact that it went against the rules that the member had established. I fail to see how this showed bias or showed that the member would not decide the matter fairly. The General Division stated that the Claimant worked in another country [14] The Claimant argues that the General Division member was biased because he wrote that the Claimant was working in another country.Footnote 7 The Claimant says that this statement was unnecessary and done out of pure malice. The Claimant says that, had the member been fair, he would have cited all the details about the Claimant’s work history in Bosnia and Herzegovina. The Claimant provided details of his work history in his Application to the Appeal Division. [15] Having considered the context, and the origin of the statement, I do not find anything inappropriate, let alone malicious, in the member’s statement that the Claimant worked in another country. The member wrote: I realize the Claimant submitted that his contributory period should indicate “no data” instead of “zero” contributions because he was working in another country.Footnote 8 [16] Clearly, the member was simply restating the Claimant’s arguments for why his contributions to the Canada Pension Plan for the years 1973 to 1996 should be amended from “zero” to “no data.” I fail to see how re-stating the Claimant’s arguments could lead an informed person to conclude that the member would not decide fairly. [17] I am not satisfied that there is an arguable case that the General Division member was biased. Is there an arguable case that the General Division failed to follow the rules of procedural fairness? [18] The Claimant argues that the General Division failed to follow the rules of procedural fairness. He says this occurred when the member hesitated in responding to a question from the Claimant about whether he could get responses from the Minister to some of his outstanding questions. The Claimant says the member’s hesitation shocked and confused him, to the point that it derailed his train of thought and questioning. He says the member should have supported his efforts to collect all the facts. [19] The Claimant asked his question in the course of final submissions from the parties.Footnote 9 The Minister’s representative had concluded her arguments (which essentially was responding to questions from the member). The exchange was as follows: Claimant: May I ask Ms. Hoffman certain questions I have before we get to the closing statement? Member: Uhh.Well it’s. Minister:Footnote 10 I’m fine with that if you are. It’s up to you. Member: Just to give you the … generally, Mr. [Claimant] just so we follow the procedure. Generally then, if Ms. Hoffman had provided evidence, then of course you have the right to cross-examine. In this case it sounds like we’re… This is an informal hearing, so I’ll allow that. All that Ms. Hoffman has done is confirm that she has provided written submissions and answered questions I had in submissions, but go ahead, Mr. [Claimant]. If you have any questions, go ahead. [20] The Claimant then proceeded to ask questions of the Minister’s representative.Footnote 11 His questions were about whether months of “legal disability” could be dropped from the contributory period, and his Statement of Contributions. [21] I did not detect any hesitation by the member, but even if the member had hesitated before responding to the Claimant’s question, there is nothing procedurally unfair for a member to take the appropriate time to reflect on a suitable response, even if a party finds this shocking or confusing. [22] If the Claimant is suggesting that the member should have responded to his shock and confusion, nothing could have alerted the member that the Claimant was unable to continue. The Claimant certainly did not appear shocked or confused. There was no stuttering or hesitation on his part. He was able to ask his questions. Plus, he did not speak up or indicate that he could not continue. And, towards the end of the hearing, the member asked the Claimant if he had anything else to say.Footnote 12 The Claimant made what he called “his final word,” but at no time did he ever object or ask for any extra time. [23] I am not satisfied that there is an arguable case that the General Division failed to follow the rules of procedural fairness because the member “hesitated” before responding to the Claimant’s request. Is there an arguable case that the General Division made any factual errors about the Claimant’s contributions to the Canada Pension Plan? [24] The Claimant argues that the General Division misunderstood or overlooked important facts or arguments, as follows: At paragraph 12 – the Claimant had argued that he was under a “legal disability,” so was unable to contribute to the Canada Pension Plan from 1973 to 1996. He argues that the Minister should have dropped the number of months within this period of “legal disability” from his contributory period, much like the child rearing dropout provisions. The Claimant argues that the General Division did not address this issue because it focused instead on the start of his contributory period. At paragraph 13 – the Claimant argued that the Canada Pension Plan discriminates against those who immigrate to Canada later in life, because their contributions to the Canada Pension Plan are “more diluted”.Footnote 13 He argues that the General Division should have noted this in its decision, so the Minister’s representative could have pursued legislative change at higher levels. At paragraph 14 – the Claimant says that his contributions for the years 1973 to 1996 should have been recorded as “no data” instead of “zero” contributions. The contributory period [25] The Claimant says that the General Division should have focused on the fact that he was under a “legal disability,” rather than on when his contributory period started. The Claimant did not have legal status to work in Canada, so he could not contribute to the Canada Pension Plan. He says those months should be dropped from the contributory period. In essence, he says that the contributory period should only start from the time that he was legally entitled to work. [26] This may seem unfair to the Claimant. But, there is no legal basis to support his arguments to exclude months from his contributory period when he did not have legal status to work. The Canada Pension Plan does not have any provisions that allow for exclusion or drop out of these months. The Claimant refers to the fact that months of disability and child-rearing are excluded from the contributory period, but the Canada Pension Plan specifically provides for these exclusions. [27] While the Claimant effectively says the contributory period should only start from the time that he was legally entitled to work, the Canada Pension Plan clearly sets out when a contributory period starts. It starts the later of January 1, 1966, or when a contributor reaches 18 years of age.Footnote 14 There is no discretion to adjust the starting date of the contributory period, even if a contributor is unable to contribute to the Canada Pension Plan because they were living outside Canada. [28] I am not satisfied that the Claimant has a reasonable chance of success on this point. Seeking legislative change [29] The Claimant says the General Division should have noted the fact that immigrants who arrive in Canada later in life have fewer chances to contribute to the Canada Pension Plan. I see however that the General Division noted the Claimant’s arguments in this regard. [30] If the Claimant wants to see changes to the Canada Pension Plan, there are other, more appropriate avenues other than through an appeal at the General Division. The General Division is under no duty to make any recommendations for legislative change on behalf of a party. Indeed, there is no place for the General Division to do so. Fundamentally, its role as an adjudicator is simply to consider the evidence and interpret the law, to apply the law to the facts, and then arrive at a decision. [31] There is no arguable case that the General Division should have noted what the Claimant says are shortcomings in the Canada Pension Plan, or that it should have recommended changes to the Canada Pension Plan to address these “shortcomings.” “No data” versus “Zero” contributions [32] The Claimant argues that his contributions for the years 1973 to 1996 should have been recorded as “no data” instead of “zero” contributions. In essence, he says the General Division made a factual error in accepting that he had “zero” contributions for these years. [33] The Claimant does not have an arguable case on this point. The General Division did not make a factual error. It relied on the evidence before it. The Statement of ContributionsFootnote 15 clearly sets out that the Claimant had “$0.00” contributions for the years 1973 to 1995. As the General Division noted, the Claimant simply did not make any contributions to the Canada Pension Plan for the period from 1973 to 1996. [34] In any event, the General Division did not base its decision on whether the Statement showed “$0.00” or some other figure, if anything. Nothing turned on whether the contributions were “0” or “no data” because the General Division ultimately decided that the calculation of the contributory period did not hinge on what his contributions were. The General Division also rightfully rejected the Claimant’s arguments that he was entitled to exclude these months from his contributory period. Conclusion [35] The Claimant does not have an arguable case that the General Division made any legal or factual errors, or that it failed to follow the rules of procedural fairness. He also does not have an arguable case that the member was biased. Therefore, permission to appeal is refused. This means that the appeal will not be going ahead. This ends the Claimant’s appeal at the Appeal Division. Footnotes Footnote 1 Under section 58(2) of the Department of Employment and Social Development Act (DESDA), I have to refuse permission if I am satisfied, "that the appeal has no reasonable chance of success." Footnote 2 See Fancy v Canada (Attorney General), 2010 FCA 63. Footnote 3 See DESDA, section 58(1). Footnote 4 At approximately 2:44 of the audio recording of the General Division hearing. Footnote 5 While the Minister’s representative may not have given any oral testimony, there was evidence from the Minister in the way of filed materials. So, the Claimant was within his rights to cross-examine the witness on those materials. However, the Claimant was asking for cross-examination in the “wrong” order, as he should have done it before the Minister made their final arguments. Footnote 6 See dissenting opinion of Grandpré J. in Committee for Justice and Liberty v National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 SCR 369, at p. 394. Footnote 7 General Division decision, at para. 14. Footnote 8 General Division decision, at para. 14. Footnote 9 At approximately 22:11 of the audio recording of the General Division hearing. Footnote 10 Ms. A. Hoffman represented the Minister at the General Division hearing. Footnote 11 See series of questions from the Claimant, starting at approximately 23:30 of the audio recording of the General Division hearing. Footnote 12 At approximately 32:35 of the audio recording of the General Division hearing. Footnote 13 See Claimant’s Application to the Appeal Division--Income Security, filed October 15, 2021, at AD1-9. Footnote 14 See section 49 of the Canada Pension Plan. Footnote 15 See Statement of Contributions, dated March 8, 2018, at GD1-20. There is a nominal amount shown for 1996.