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Decision
[1] The Tribunal finds that the late E. S. did not make sufficient contributions to the Canada Pension Plan (CPP) to meet the Minimum Qualifying Period (MQP) in order for the Appellant to qualify for a CPP survivor’s pension or death benefit.
Introduction
[2] The Appellant’s applications for a CPP survivor’s pension and death benefit were date stamped by the Respondent on March 20, 2012. The Respondent denied the applications at the initial and reconsideration levels and the Appellant appealed to the Office of the Commissioner of Review Tribunals (OCRT).
[3] The hearing of this appeal was by written questions and answers for the reasons given in the Notice of Hearing dated December 11, 2014.
The law
[4] Section 257 of the Jobs, Growth and Long-term Prosperity Act of 2012 states that appeals filed with the OCRT before April 1, 2013 and not heard by the OCRT are deemed to have been filed with the General Division of the Social Security Tribunal.
[5] Section 44(1)(c) of the CPP provides that a death benefit shall be payable to the estate of a deceased contributor who has made contributions for not less than the minimum qualifying period.
[6] Section 44(1)(d) of the CPP provides that a survivor’s pension shall be paid to the survivor of a deceased contributor shall be paid to the survivor of a deceased contributor who has made contributions for not less than the minimum qualifying period.
[7] Section 44(3) of the CPP provides that for the purposes of section 44 (1) (c) a contributor shall be considered to have made contributions for not less than the minimum qualifying period only if the contributor has made contributions during the contributor’s contributory period
- (a) for at least one-third of the total number of years included either wholly or partly within his contributory period, excluding from the calculation of that contributory period any month in a year after the year in which he reaches sixty-five years of age and for which his unadjusted pensionable earnings were equal to or less than the basic exemption for that year, but in no case for less than three years; or
- (b) for at least ten years.
[8] Section 49 of the CPP provides that a contributor’s contributory period is the period commencing January 1, 1966 or when he reaches eighteen years of age, whichever is later, and ending in the month when the contributor dies, excluding any month that was excluded from the contributor’s contributory period by reason of disability.
[9] Section 92 (2) of the CPP provides that the Minister of National Revenue is responsible for the administration of Part I of the CPP which governs the calculation and collection of CPP contributions.
[10] Section 96 (1) of the CPP provides that every contributor may require the Minister of Employment and Social Development (the Minister) …to furnish or make available to the contributor a statement of the unadjusted pensionable earnings shown to the contributor’s account in the Record of Earnings, and if a contributor is not satisfied with the statement, they may request that it be reconsidered by the Minister.
[11] Section 97 (1) provides that notwithstanding section 96, except as provided in this section, any entry in the Record of Earnings relating to the earnings or contribution of a contributor shall be conclusively presumed to be accurate and may not be called into question after four years have elapsed from the end of the year in which the entry was made. (emphasis added)
[12] Section 97 (2) provides that if,
- (a) ) from information furnished or obtained from the records of an employer or a former employer, or an employee of an employer, or an person required to make contributions in respect of his self-employed earnings, after the time specified in subsection (1), or
- (b) for any other reason,
it appears to the Minister that the amount of the unadjusted pensionable earnings shown in the Record of Earnings to the account of an employee or former employee of that employer or to the account of that person is less than the amount that should be so shown in that Record, the Minister may cause the Record of Earnings to be rectified in order to show the amount of unadjusted pensionable earnings of the contributor that should be so shown therein.
Issue
[13] The issue is whether the contributor met the MQP earnings and contribution requirements in order for the Appellant to qualify for the CPP survivor’s pension and death benefit.
Background and evidence
[14] The Appellant is the widower of the late E. S. (the contributor) who was born in X X and died in March 2012. The contributor’s Record of Earnings (ROE) indicates that she only made contributions to the CPP for the years 1996 to 1973 (8 years). The Appellant does not dispute that this does not meet the minimum qualified period requirement of at least 10 years; however, he takes the position that the contributor earned sufficient employment income in 1995 and 1997, and that she did not pay CPP contributions for those two years because of an error at the time of filing her annual income tax returns.
[15] On April 20, 2012 the Appellant wrote to the Canada Revenue Agency requesting adjustments to the contributor’s CPP contributions for the years 1995 and 1997 for the purpose of achieving the minimum number of 10 years of eligibility. With respect to 1995 the Appellant indicated that the contributor was employed as a teacher for The Lung Association, Metropolitan Toronto and York Region; that she was paid for hours taught but was never provided with a T4 slip; that her income of $3,896.41 was determined from pay slips and reported on her Individual Tax Return; that the amount was incorrectly reported as other employment on line 104; and that CPP contributions were not paid on lines 308 or 310 as required. A similar history was reported with respect to 1997; however, the income was $5,156.51. The Appellant enclosed a copy of the Notice of Assessment on one of the pay slips for each of the years in question.
[16] On August 28, 2012 the Canada Revenue Agency notified the Appellant that the request for reassessment of the 1995 and 1997 tax returns could not be considered because they were with respect to tax years that were more than 10 calendar years prior to the request. The Appellant wants the contributor’s estate to make CPP contributions for 1995 and 1997 and is requesting that the Tribunal “pursue National Revenue or other appropriate parties to identify a mechanism for the Estate to pay the additional 2 years contributions.” (see GT6-2)
Submissions
[17] The Appellant submitted that he qualifies for the CPP death and survivor’s benefits because:
- a) The reasons given by the Canada Revenue Agency denying the request to collect 2 years of contributions for 1995 and 1997 were not relevant to the original request;
- b) He has provided documentation confirming that the required minimum employment income was earned for those years, but mistakenly not shown on the appropriate tax return line, which resulted in CPP contributions neither being paid nor requested;
- c) The contributor earned sufficient employment income for the required minimum 10 year period, but did not pay CPP contributions for two of those years (1995 &1997) because of an error at the time of filing her annual tax returns;
- d) The contributor’s estate should be permitted to make contributions for the additional two years.
[18] The Respondent submitted that the Appellant does not qualify for the CPP death benefit because:
- a) The contributor did not make sufficient contributions to the CPP for the Appellant to be eligible for the CPP death benefit;
- b) The contributory period for the deceased contributor began in January 1966 and ended in January 2007 for a total of 42 years. Accordingly, she required ten years of valid contributions for the Appellant to be eligible for the CPP death benefit and survivor’s pension. Since the deceased contributor has only had eight years of valid contributions the Appellant is not eligible for the benefits;
- c) Under s. 92(2) of the CPP, the Minister of National Revenue is responsible for the administration of Part 1 of the CPP, which governs the calculation and collection of CPP contributions from individual Canadians. The Minister of Employment and Social Development relies on the Minister of National Revenue to provide information on the earnings and contributions of individual Canadians as prescribed in s. 92(2) of the CPP. The Minister of Employment and Social Development does not directly collect information about individual earnings and contributions, and has no control over collection and maintenance of that data. The Minister of Employment and Social Development cannot deem a contributor’s earnings or contributions to the CPP. Only the Minister of National Revenue, acting under s. 92(2) of the CPP, can revise earnings and contributions information;
- d) The Minister of National Revenue declined to reassess the contributor’s income tax returns for the years 1995 and 1997, as per the letter of August 28, 2012 from the Canada Revenue Agency. Since the Minister of National Revenue has declined to reassess these years, the Minister of Employment and Social Development cannot consider them when determining the Appellant’s eligibility for the CPP death benefit and survivor’s pension;
- e) There is no provision in the CPP legislation that permits an individual or an estate to voluntarily make additional contributions to the CPP.
Analysis
[19] There is no dispute that for the Appellant to be eligible for the death benefit and survivor’s pension the deceased contributor must have made valid contributions for at least 10 years in order to satisfy the minimum qualifying period. There is also no dispute that the Record of Earnings indicates valid contributions for a period of only 8 years.
[20] The primary issue to be determined is whether the deceased contributor’s earnings in 1995 and 1997 can also be considered, even though she did not make any CPP contributions for those years. The Canada Revenue Agency has refused the Appellant’s request for reassessment because they were with respect to tax years that were more than 10 calendar years prior to the request. The Appellant is requesting that the Tribunal review this decision and identify a mechanism for the Estate to pay the additional two years of contributions.
[21] Section 97 (1) of the CPP provides that, except as provided in section 97 (2), any entry in the Record of Earnings shall conclusively presumed to be accurate and may not be called into question after four years have elapsed from the end of the year in which the entry was made. There is no question that 4 years have elapsed, and the Tribunal must consider whether section 97 (2), which provides for rectification of the record in certain cases, can be applied.
[22] In the Notice of Hearing dated December 11, 2014 the Tribunal indicated that, “It appears that the Appellant is requesting an adjustment for the years 1995 and 1997 under
s. 97 (2) of the CPP. This request does not appear to have been addressed in the hearing file.” By way of questions, the Tribunal Member asked each party to provide its submissions with respect to the applicability of s. 97 (2).
[23] The Appellant responded that he believes all required documentation has already been provided and that the estate of the deceased contributor wishes to contribute the required minimum CPP contributions [for 1995 & 1997] for the Appellant to qualify for the requested benefits. He is asking the Tribunal to agree with this request and to instruct the appropriate authority to advise of the amount and mechanism for payment of the remaining 2 years of qualifying benefits.
[24] The Respondent responded that the responsibility for collection of CPP contributions and maintaining the required information lies with the Minister of National Revenue, and that the Minister of Employment and Social Development relies on the Minister of National Revenue to collect information about individual earnings and contributions (see Respondent’s submissions, paragraphs 18 (c) and (d), supra).
[25] The decision of the Federal Court in Walters v. MEI [1996] FCJ No. 176 (C.A) indicates that s. 97 of the CPP “makes it indisputable that the amount shown in the Record prepared in accordance with the Plan is accurate....” The decision of the Pension Appeals Board in Pankewicz v MHRD (August 27, 2001), CP 12908 (PAB) indicates that where on a claim for survivor’s benefits the Record of Earnings showed that the deceased contributor had made only five years of contributions although seven were required, s. 97 requires that the Record of Earning be conclusively presumed to be accurate and the claim denied.
[26] In the subject case, the Record of Earnings shows only eight years of earnings, although ten are required, and the Record of Earnings must conclusively be presumed to be accurate.
[27] The Appellant argues that the Tribunal should instruct the appropriate authority (presumably the Canada Revenue Agency) to advise of the amount and mechanism for payment of CPP benefits for the years 1995 & 1997, which would then provide for the required additional two years of qualifying payments. The provisions cited by the Respondent (see subparagraphs 18 (c) and (d), supra) make it clear that the Minister of National Revenue has the responsibility for collection of CPP contributions. In this case the Canada Revenue Agency has indicated that it cannot reassess the deceased contributor’s tax returns for 1995 & 1997, which would presumably result in payment of additional CPP contributions and an amendment to the Record of Earnings.
[28] The Tribunal is not empowered to exercise any form of equitable power in respect of the appeals coming before it. It is a statutory decision-maker and clearly only has the powers specified in the CPP: MSD v Kendall (June 7, 2004), CP 21690 (PAB).
[29] The Tribunal has no jurisdiction to give directions to the Minister of National Revenue, nor does it have the power to review in any way decisions made by the Canada Revenue Agency. Further, there is no provision in the CPP legislation that permits an individual or an estate to voluntarily make additional contributions to the CPP.
[30] Accordingly, the Tribunal does not have the jurisdiction to allow the Appellant’s request.
Conclusion
[31] The appeal is dismissed.