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Introduction
[1] The Appellant and the Added Party were divorced a number of years ago. After their separation, the Added Party applied for a division of unadjusted pensionable earnings under the Canada Pension Plan. This application was accepted, and in 2004 the pension credits were divided. The Added Party and the Appellant requested that the Respondent reverse this division of pension credits. The Respondent denied this request, relying on section 55.1 of the Canada Pension Plan, which provides that once the Minister has been informed of a divorce and the necessary information is received, the division of unadjusted pensionable earnings is mandatory. The only exception to this is if the division would be detrimental to both parties. That exception did not apply in this case.
[2] The Appellant appealed this decision to the Office of the Commissioner of Review Tribunals. A Review Tribunal dismissed the appeal. The Appellant pursued appeals and applications for judicial review from this decision. By 2013 all such appeals and applications for judicial review had been heard and his claims dismissed (a detailed history of proceedings is set out in the decision of the General Division of the Social Security Tribunal dated December 16, 2014).
[3] The Appellant then sought to have the decision of the Minister dated February 15, 2005, that the division of pension credits was mandatory, rescinded or amended based on new facts. The Minister refused this. The Appellant appealed this decision to the General Division of the Social Security Tribunal. On December 16, 2014 the General Division summarily dismissed the appeal.
[4] The Appellant appealed the decision of the General Division. He contended that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction, it erred in law in making its decision, whether or not the error appeared on the face of the record and there was a reasonable chance of success if fully heard.
[5] The Respondent argued that because the Appellant had exhausted all appeal mechanisms for the decision in question, the decision of the Minister of February 2005 is final, and not subject to review based on new facts. In the alternative, the Respondent submitted that the Appellant had not presented any new facts under the Canada Pension Plan. Therefore, the General Division decision to summarily dismiss the appeal was correct.
[6] This appeal was decided on the written record after considering the following:
- a) The fact that the credibility of the parties is not a prevailing issue.
- b) The information in the file and that there was no need for additional information.
- c) The requirements under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
- d) The nature of the proceeding and the materials already filed by both parties, including submissions on this appeal, and the Appellant’s statement that he had no further submissions to file.
Analysis
[7] Neither party made any submissions on what standard of review should be applied to the General Division decision in this matter. The leading case on this is Dunsmuir v. New Brunswick 2008 SCC 9. In that case, the Supreme Court of Canada concluded that when reviewing a decision on questions of fact, mixed law and fact, and questions of law related to the tribunal’s own statute, the standard of review is reasonableness; that is, whether the decision of the tribunal is within the range of possible, acceptable outcomes which are defensible on the facts and the law. As the issue before me is one of mixed fact and law, the standard of review to be applied is that of reasonableness. Issues of natural justice are to be reviewed on a standard of correctness.
[8] The Department of Employment and Social Development Act governs the operation of this Tribunal. Section 58 of the Act sets out what grounds of appeal can be considered. Section 59 of the Act sets out what remedies may be granted on an appeal. They are reproduced in the Appendix to this decision. Therefore, the Appellant must satisfy me, on a balance of probabilities, that the General Division decision contains an error under section 58 of the Act that renders the decision unreasonable.
[9] The Appellant, first, submitted that the General Division failed to observe a principle of natural justice or acted without jurisdiction. He did not set out how that was to have occurred. The principles of natural justice are concerned with ensuring that parties to a legal dispute have an adequate opportunity to present their case, have the opportunity to respond to the case against them, and have the decision made based on the law and the evidence by an impartial decision maker. There is no indication that the General Division breached any of these principles. Similarly, there is nothing in the General Division decision that points to any error of jurisdiction. Therefore, this argument fails.
[10] The Appellant also argued that the General Division erred in law. He also wrote that the General Division failed to meet tenants [sic] of Canadian law. Again, no specifics regarding this were provided. The General Division decision correctly set out the relevant terms of the Canada Pension Plan, the Department of Employment and Social Development Act, the Social Security Tribunal Regulations and the case law that applied in this case. The law was reasonably applied to the facts and a decision made on this basis. The General Division decision clearly sets out the evidentiary basis for the conclusions reached. I am not satisfied that the General Division made any error in law, or any error of mixed law and fact.
[11] Finally, the Appellant argued that there was a reasonable chance of success if the matter was fully argued. The meaning of this statement is unclear. If the Appellant meant by this that he did not have a full opportunity to present his case, he should have indicated what evidence he could not provide or how the General Division did not consider it. He did not do this.
[12] In addition, in Pantic v. Canada (Attorney General), 2011 FC 591, the Federal Court concluded that a ground of appeal cannot be said to have a reasonable chance of success if it is not clear. On this basis, this argument fails.
Conclusion
[13] The appeal dismissed. For the reasons set out above, I am not satisfied that the General Division decision contains any errors. The decision is reasonable; it is defensible on the law and the facts.
Appendix
Department of Employment and Social Development Act
58. (1) The only grounds of appeal 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.
58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
59. (1) 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 decision of the General Division in whole or in part.