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Reasons and decision
Persons in attendance
Appellant: S. M., Guy Lauzon, MP (Witness/Representative), Daniela Tedesco (Witness)
Respondent: Written submissions only
Overview
[1] The Appellant attended at the constituency office of Guy Lauzon, his Member of Parliament (MP), on January 18, 2013. During that visit, he received the help of a constituency assistant to complete a passport application and an application for his Canada Pension Plan (CPP) retirement pension (January Application). In the usual course, the applications would have been mailed to their respective destinations later that day and the Appellant’s passport was received approximately four to six weeks later.
[2] Having not received any information about his retirement pension, the Appellant returned to his MP’s office on April 15, 2013, at which point another constituency assistant contacted the Respondent and was advised that the January Application had never been received. A new application was completed that day and sent to the Respondent by fax and mail (April Application). The April Application was approved that same month, with payments starting the following month, in May 2013.
[3] Given that he acted diligently and could not be blamed for the loss of the January Application, the Appellant argued that his retirement pension ought to begin in February 2013, as though the January Application had been received. In a reconsideration decision dated May 28, 2013, the Respondent denied the Appellant’s request to make his retirement pension payments retroactive to February 2013. It is the May 28, 2013 reconsideration decision that is now being appealed to this Tribunal.
[4] For the reasons that follow, the appeal is dismissed.
Method of proceeding
[5] The hearing of this appeal was by teleconference for the following reasons:
- the method of proceeding provides for the accommodations required by the parties or participants;
- videoconferencing is not available within a reasonable distance of the area where the Appellant lives;
- the issues under appeal are not complex;
- there are gaps in the information in the file and/or a need for clarification;
- credibility is not a prevailing issue; and
- this method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
The law
[6] For the purposes of this appeal, the Tribunal was prepared to consider the relevant statutory provisions as they were at the time of the January Application, which is also the time when the Appellant first became eligible to receive his retirement pension. On inspection, however, the Tribunal noted that the relevant provisions had not changed between then and the date of the hearing. For the sake of clarity, the relevant provisions relied on by the Tribunal are attached as Schedule A to these Reasons and Decision.
[7] Retirement pensions are established by s. 44(1)(a) of the CPP. The amount of a retirement pension is set out in s. 46 of the CPP, but is subject to an adjustment in accordance with ss. 46(3.1) and (7) of the CPP and s. 78.3 of the Canada Pension Plan Regulations (CPP Regulations).
[8] The effect of the adjustment in s. 78.3 of the CPP Regulations is that pensioners between 60 and 65 may see their pension reduced by a certain amount. The amount of the reduction decreases (and the amount of the pension increases) the closer pensioners are to 65 when they start to receive their pension. All other things being equal, therefore, people who start receiving their retirement pension in the month after their 60th birthday will receive slightly less than people who start receiving their retirement pension in the second month after their 60th birthday.
[9] The method of applying for benefits is also prescribed by the CPP and its Regulations. Subsection 60(1) of the CPP states that “No benefit is payable to any person under this Act unless an application therefore has been made by him or on his behalf and payment of the benefit has been approved under this Act.” [Underlining added.] Subsection 60(6) provides that applications must be made in the prescribed manner and at the prescribed location. In turn, s. 43 of the CPP Regulations specifies that applications are to be made “in writing at any office of the Department of Human Resources Development or the Department of Human Resources and Skills Development.” Subsection 60(7) of the CPP states that the Minister must consider an application “forthwith on receiving [it]” and advise the applicant in writing of his decision. [Underlining added.]
[10] The rules governing the commencement of a retirement pension in circumstances such as these are set out at s. 67(3.1) of the CPP:
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.]
Issue
[11] The question the Tribunal must decide, therefore, is whether the effective date of the Appellant’s retirement pension can be changed from May 2013 to February 2013?
Evidence
[12] At the hearing of the appeal, the Tribunal heard the evidence of the Appellant, his MP (Mr. Lauzon) and of Mr. Lauzon’s Constituency Assistant, Daniela Tedesco. Their evidence was entirely consistent and was not challenged in any way. It is accepted in its entirety and without hesitation.
[13] Mr. Lauzon explained that his is a busy constituency office that handles approximately 10,000 requests for assistance every year. Each day, his office handles numerous applications for government services and benefits, such as for passports and for benefits under the CPP and Old Age Security Act. He said that problems such as this one have arisen very infrequently in his 10-or-so years as an MP. Mr. Lauzon explained that applications are not normally sent by fax because handling problems almost never occur and, on the one or two occasions when they did occur, he has always been able to remedy the situation by sending letters such as the one in this case (at GD3-19). In that letter, Ms. Tedesco confirmed to Service Canada that she had assisted the Appellant with his application for a CPP retirement pension on January 18, 2013, and that the application was subsequently put in the mail. Ms. Tedesco urged Service Canada to accept her letter in support of the Appellant’s request for his retirement pension to be made effective from February 2013.
[14] It was Mr. Lauzon’s evidence that constituents often treat his office and Service Canada offices interchangeably, with some constituents saying that better service is offered by the assistants in his office, since they provide more advice and guidance, particularly to those who do not know how to use computers. Indeed, he said that Service Canada sometimes refers people to his office for assistance and said that government departments have previously treated applications as being made on the day they were received by his office.
[15] In addition to Ms. Tedesco’s letter at GD3-19, Mr. Lauzon said that he also appealed directly to the former Minister of Employment and Social Development to try to assist with this situation and that the Minister had agreed to do so, but that his letter of July 2015 to the effect ultimately went unanswered (which might be explained by the federal election and subsequent change in government). The Tribunal pauses simply to note that Mr. Lauzon’s July 2015 letter to the Minister is not part of the Tribunal’s record.
[16] For her part, Ms. Tedesco has a specific recollection of helping the Appellant on January 18, 2013, to complete his passport application and application for a CPP retirement pension. The encounter stands out for her because the Appellant informed her that it was his 60th birthday. According to Ms. Tedesco’s evidence, the assistance she provided to the Appellant on that day was ordinary in every way and similar to the work that she does several times per day. Once the applications were complete, each would have been put into its own envelope and put aside for mailing. She explained that all such envelopes are then put into the mail by one of Mr. Lauzon’s assistants at the end of each day. She said that applications are not normally sent by fax unless there is some urgency and that copies of applications are not normally made unless requested by the constituent. In any event, Ms. Tedesco is confident that the usual procedures worked correctly in this case because the Appellant received his new passport some four to six weeks later.
[17] Ms. Tedesco also explained that each encounter with a constituent is recorded in a database maintained by her and the other assistants in Mr. Lauzon’s office. While she is confident that she opened a file for the Appellant and entered all of the necessary information into the database, the information has mysteriously disappeared. Ms. Tedesco attributed this issue to a “glitch in the system”, which she said had happened a few times before.
[18] The Appellant testified briefly to confirm what was said above. He respectfully acknowledged that he did know how or where his application was lost and did not seek to cast blame. He simply asked that this honest mistake be corrected.
Submissions
[19] In short, the Appellant submitted that he ought to be entitled to his retirement pension from February 2013 because the January Application was completed at the office of his MP and lost through no fault of his own.
[20] The Respondent submitted that it applied the provisions of the CPP correctly, particularly paragraph 67(3.1)(b), which specifies that, for applicants under 65, a pension is payable starting in the month following the month in which the application was received. Since the Appellant’s application was received in April 2013, when he was under 65, his pension was made effective from May 2013.
[21] Neither party submitted prior cases on the issue of applications for benefits being lost or mishandled. However, by letter dated September 24, 2015 (GD11), the Tribunal drew the attention of the parties to a Federal Court decision that it felt was potentially relevant and binding: Canada (A.G.) v. Vinet-Proulx, 2007 FC 99. Indeed, a copy of the decision and summary of it prepared by the Tribunal were both provided. The Tribunal invited submissions from the parties as to the effect, relevance and/or proper interpretation of that decision, but none were received.
[22] At the hearing, Mr. Lauzon and Ms. Tedesco submitted that Vinet-Proulx might be distinguished from the facts of this case because: (1) there was sworn and compelling evidence supporting the fact the Appellant had completed and mailed the January Application; and (2) the application was completed in the office of his MP, which is, in a sense, a government office.
Analysis
[23] In this case, the Respondent received the Appellant’s April Application by fax on April 15, 2013 (GD3-13), and by mail on April 23, 2013 (GD3-7). It appears as though the Respondent acted on the faxed copy of the April Application since a handwritten note on the application (at GD3-11) says “approved by R. M. / April 19, 2013 / eff. May 2013”. In order to choose the date when payment of the retirement pension would begin, s. 67(3.1) of the CPP prescribes that the following relevant dates must be considered:
- The month in which the applicant reached sixty years of age: February 2013 (the CPP deems a person to have reached a certain age at the beginning of the month following the month of their birth);
- The month following the month in which the application was received: May 2013;
- The eleventh month preceding the month in which the application was received: this paragraph does not apply because the Appellant was under 65 years old at the time of his application; and
- The month chosen by the applicant in their application: none was chosen by the Appellant in the April Application.
[24] As required by the legislation, the Respondent chose the latest of the dates above, being May 2013, as the date when the Appellant’s retirement pension began.
[25] Does the January Application have any impact on the analysis above given that the Respondent says that it was never received?
[26] The Appellant presented very strong evidence with respect to the completion and mailing of the January Application. While there is no corroborating documentary evidence of the January Application, nothing turns on this omission given the compelling and uncontested evidence of Mr. Lauzon and Ms. Tedesco.
[27] The Tribunal is aware of inconsistent judgments on the question of lost applications. In earlier cases, the Pension Appeals Board (one of the Tribunal’s predecessors), held that statutes like the CPP should be interpreted generously and that receipt by the Minister is proven if an applicant can show that he or she did everything necessary to complete and submit the application: Hopkins v. MNHW (June 2, 1980), CP 430 (PAB), Mandel v. MNHW (October 20, 1993), CP 02715 (PAB). In more recent cases, strict compliance with the statute was required and applications were found not to have “made” their application until it was physically in the office of the Respondent: D.T. v. MHRSD (November 26, 2007), CP 24399 (PAB), MHRD v. Della Maestra (April 16, 2003), CP 17784 (PAB). All of these decisions focus very much on the meaning of “making” an application.
[28] However, Pension Appeals Board decisions are not binding on the Tribunal. In contrast, the Federal Court’s decision in Vinet-Proulx is binding on the Tribunal if the Tribunal finds that the two cases are sufficiently similar.
[29] Vinet-Proulx was decided in a slightly different context because the claimant in that case had applied for Old Age Security (OAS) benefits (and not a CPP retirement pension). The two cases are similar, however, in the sense that an application for benefits was inexplicably lost.
[30] Ms. Vinet-Proulx’s first application was received by the Department but denied as premature, since she was not yet 65 years old. A second application was given to her accountant but he ignored it. In March or April of 2003, Ms. Vinet-Proulx’s new accountant realized that she was not in receipt of her OAS benefits and confirmed with the Department that it was because no application had been received. As a result, a third application was quickly completed and mailed to the Department at about that time (although no copy or proof of postage was kept). A year later, in April 2004, Ms. Vinet-Proulx’s accountant realized that she was still not receiving her OAS benefits. Therefore, a fourth application was completed and sent to the Department by registered mail on April 13, 2004, and received by the Department the following day.
[31] The Department approved Ms. Vinet-Proulx’s application and provided the greatest amount of retroactivity available under the statute, but based on the date when the fourth application was received by the Department (and not based on the third application that was sent about a year earlier but never received by the Department). A Review Tribunal allowed Ms. Vinet-Proulx’s appeal and decided to grant further retroactivity on the basis of the third application. The Review Tribunal accepted the evidence of Ms. Vinet-Proulx and of her accountant regarding the existence and mailing of the third application and concluded that she had done what she needed to do to make an application for benefits. In other words, the posted application was presumed to have been received by the Department.
[32] On further appeal to the Federal Court, Justice Martineau considered the relevant statutory provisions and concluded that the Minister was bound to apply the provisions of the statute to the application that it had received. In the Court’s view, the Minister had no discretion to award any additional retroactivity and the Review Tribunal exceeded its jurisdiction by making an award that the Minister could not have made in the first place. Accordingly, the Review Tribunal’s decision was set aside and the Minister’s decision was restored.
[33] Upon comparing the facts in the present appeal to those in Vinet-Proulx, the Tribunal concludes that it is bound to follow the Federal Court’s decision in that case.
[34] While the two statutory schemes are somewhat different (for example, the CPP does not contain the same deeming provision as in s. 3(2) of the Old Age Security Regulations), when one considers the overall scheme of the statutes, the receipt of an application is key to their operation.
[35] Subsection 60(6) of the CPP says that an application to the Minister must be made in the prescribed manner and at the prescribed location. According to CPP Regulation 43(1), that means that applications must be made in writing and at any office of the Department of Human Resources Development or the Department of Human Resources and Skills Development. “[O]n receiving an application for a benefit” [underlining added] the Minister must consider it forthwith and decide whether it is approved or not: CPP, s. 60(7). Finally, no benefit is payable under the CPP until an application for the benefit has been made and payment of the benefit has been approved: CPP, s. 60(1).
[36] In other words, under both the CPP and the Old Age Security Act, an application must be received by the Minister before it can be approved and the approval can only be based on the application that the Minister has before him or her. In turn, a benefit is only payable once the application has been approved and the amount of retroactivity that can be awarded (albeit different in each case) is specifically prescribed based on certain dates, including when the application is received. On the question of retroactivity, the Minister is left with no discretion. And the Tribunal, being a creature of statute without recourse to the principles of fairness or equity, has no more discretion than the Minister and cannot award an amount of retroactivity that was beyond the power of the Minister to award: Vinet-Proulx at para. 12.
[37] It follows from the analysis above that the receipt of an application by the Respondent is the key triggering event: a benefit is not payable until it has been approved by the Minister and the Minister cannot grant his or her approval until an application for the benefit has been received.
[38] In this context, the Tribunal has difficulty following the earlier cases in which it was held that an application was deemed to have been made because a claimant exercised due diligence in preparing the application and has convincing proof that it was sent. Be that as it may, the claimant’s benefit does not become payable until the application has been made and approved and the application cannot be approved by the Minister until it is actually received.
[39] Once an application is approved, the date on which the application was received becomes critical again for determining the pension’s commencement date. Paragraph 67(3.1)(b) of the CPP refers to the month in which an application was received (not the month in which it was made or deemed to have been made). The provision is specific and leaves the Minister without discretion to choose a commencement date that he or she might prefer. On appeal, the Tribunal’s discretion is no greater or less than that of the Minister.
[40] Turning more specifically to the facts of this case and applying the analysis in Vinet- Proulx, it is only the April Application that was received by the Respondent and that could have been approved. Once approval was obtained, s. 67(3.1)(b) dictated, based on when the April Application was received, that May 2013 would be the commencement date of the Appellant’s retirement pension. It is on the basis of the April Application that the Respondent made its decision and it is that decision that, in turn, gave rise to certain rights of review.
[41] On appeal to this Tribunal, the Tribunal essentially puts itself in the place of the Respondent, meaning that it too must consider the commencement date of the Appellant’s retirement pension based on the April Application. As already stated, the Tribunal concludes that the Respondent committed no error when determining the commencement date of the Appellant’s retirement pension in the way that it did.
[42] On the Appellant’s behalf, Mr. Lauzon and Ms. Tedesco argued that Vinet-Proulx should be distinguished because of the strength of the evidence in this case that the January Application had been completed and mailed. The Tribunal cannot accept that argument as a reason to distinguish Vinet-Proulx. Both in this case and in Vinet-Proulx (at para. 4), oral testimony was accepted as proof that a previous application had been completed and mailed.
[43] Mr. Lauzon and Ms. Tedesco also argued that the January Application was “made” in their office since it is akin to a government office and is considered by many to be the equivalent of a Service Canada office. The Tribunal is unable to accept that argument either since doing so would mean ignoring the specific language in CPP Regulation 43(1), which requires that application be made at any office of the Department of Human Resources Development or the Department of Human Resources and Skills Development.
[44] In concluding as it has, the Tribunal is not suggesting that applications for a CPP retirement pension must always be delivered in person and must never be sent by mail. To the contrary, applications that are sent by mail are received and validly made on a regular basis. However, applicants who choose to send their applications by mail accept a very small and well- known risk that their documents could be inexplicably lost. This risk can be minimized, but it is one that people regularly accept.
Conclusion
[45] As described above, the Tribunal accepts that the January Application was prepared and mailed in the usual course. However, its receipt cannot be proven and the Appellant is unable to investigate the matter any further. Rather, the Appellant said that he is merely seeking his due in an unfortunate situation where no blame can be assigned.
[46] However, by completing his application for retirement benefits at Mr. Lauzon’s constituency office and mailing the application to the Respondent, the Appellant failed to comply with a procedural aspect of the law (i.e. that applications be made at any office of the Department of Human Resources Development or the Department of Human Resources and Skills Development). In doing so, the Appellant was not being reckless or irresponsible. As Mr. Lauzon confirmed, the risk of an application being lost between his office and the intended recipient is very small and one that people accept all the time.
[47] Even if the Tribunal were prepared to find that the January Application had been “made” (based on earlier, non-binding cases from the Pension Appeals Board and the strong evidence of Mr. Lauzon and Ms. Tedesco), it is unable to escape the statutory requirement that applications be made and approved before a benefit becomes payable. For that reason, the Tribunal finds it more reasonable to conclude that an application cannot be “made” until it is received by the Respondent. It is the receipt of an application that triggers the Respondent to make a decision (on the basis of that application). And it is only if the application is approved that claimants become entitled to payment of a benefit. Alternatively, in the event of an unfavourable decision, then rights of review and appeal arise. But when no application is received, then no decision is made and no such rights arise.
[48] The April Application is at the heart of the Respondent’s initial decision, the reconsideration decision and of this appeal. The law was applied to the April Application correctly and this Tribunal is without jurisdiction to vary or dispense with its requirements.
[49] In his testimony, Mr. Lauzon said that he had tried to resolve this matter by discussing it with and writing to the former Minister. The Tribunal agrees that, if there is a solution to this unfortunate situation, it lies elsewhere.
[50] In the OAS context, Justice Martineau suggested in Vinet-Proulx that the correct approach could be to apply for an exercise of Ministerial discretion. Such a power also exists under the CPP: s. 66(4). It is not clear whether the Appellant has yet tried this route. However, embarking on an investigation and deciding whether or not the January Application was lost due to an administrative error is not something that this Tribunal can do. Rather, such investigations and determinations can only be made by the Respondent. Further, the way in which the Respondent might choose to exercise his or her discretion under s. 66(4) cannot be appealed to this Tribunal: Vinet-Proulx at para. 12.
[51] The Tribunal is sympathetic to the Appellant’s case; however, it is bound to follow the law as it is written and interpreted by the Federal Court. Although it may be of little comfort to the Appellant, the upshot of his retirement pension starting in May 2013 is that his monthly payments ought to be a bit higher than if his pension had started a few months earlier.
[52] The appeal is dismissed.
Schedule a – Relevant statutory provisions
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44. (1) Sous réserve des autres dispositions de la présente partie :
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46. (1) Subject to this section, a retirement pension payable to a contributor is a basic monthly amount equal to twenty-five per cent of his average monthly pensionable earnings. […] (3.1) Subject to subsections (4) to (6), a retirement pension that becomes payable after December 31, 2010 commencing with a month other than the month in which the contributor reaches 65 years of age is a basic monthly amount equal to the basic monthly amount calculated in accordance with subsection (1) or (2), as the case may be, adjusted by a factor fixed under subsection (7). […] (7) For the purposes of subsection (3.1), the Governor in Council may make regulations fixing one or more adjustment factors or the methods of calculating them — including factors or methods that may apply on specified dates — to reflect the time interval between the month in which the retirement pension commences and the month in which the contributor reached, or would reach, 65 years of age, but the time interval is deemed never to exceed five years. |
46. (1) Sous réserve des autres dispositions du présent article, une pension de retraite payable à un cotisant est un montant mensuel de base égal à vingt-cinq pour cent de la moyenne mensuelle de ses gains ouvrant droit à pension. […] (3.1) Sous réserve des paragraphes (4) à (6), la pension de retraite qui devient payable après le 31 décembre 2010, lors d’un mois autre que le mois au cours duquel le cotisant atteint l’âge de soixante-cinq ans, est un montant mensuel de base égal au montant mensuel de base calculé aux termes des paragraphes (1) ou (2), selon le cas, ajusté par un facteur établi en vertu du paragraphe (7). […] (7) Pour l’application du paragraphe (3.1), le gouverneur en conseil peut prendre des règlements pour établir un ou plusieurs facteurs d’ajustement ou leur mode de calcul — notamment des facteurs ou modes de calcul applicables à des dates précisées — afin de tenir compte de l’intervalle existant entre le mois au cours duquel la pension de retraite commence et le mois au cours duquel le cotisant atteint, ou atteindrait, l’âge de soixante-cinq ans, cet intervalle étant réputé ne jamais pouvoir excéder cinq ans. |
60. (1) No benefit is payable to any person under this Act unless an application therefor has been made by him or on his behalf and payment of the benefit has been approved under this Act. […]
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60. (1) Aucune prestation n’est payable à une personne sous le régime de la présente loi, sauf si demande en a été faite par elle ou en son nom et que le paiement en ait été approuvé selon la présente loi. […]
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the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in under this Act had the erroneous advice not been given or the administrative error not been made. |
66. (4) Dans le cas où le ministre est convaincu qu’un avis erroné ou une erreur administrative survenus dans le cadre de l’application de la présente loi a eu pour résultat que soit refusé à cette personne, selon le cas :
le ministre prend les mesures correctives qu’il estime indiquées pour placer la personne en question dans la situation où cette dernière se retrouverait sous l’autorité de la présente loi s’il n’y avait pas eu avis erroné ou erreur administrative. |
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67. (3.1) En ce qui concerne une pension de retraite qui devient payable à compter du 1er janvier 2012, si les requérants ne sont pas des ayants droit et sous réserve de l’article 62, la pension dont le paiement est approuvé est payable mensuellement à compter du dernier en date des mois suivants :
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43. (1) An application for a benefit […] shall be made in writing at any office of the Department of Human Resources Development or the Department of Human Resources and Skills Development. |
43. (1) La demande de prestations […] doit être présentée par écrit à tout bureau du ministère du Développement des ressources humaines ou du ministère des Ressources humaines et du Développement des compétences. |
78.3 For the purposes of subsection 46(3.1) of the Act, the adjustment factor for a retirement pension that becomes payable in a month before the month in which the contributor reaches 65 years of age shall be determined by the formula 1 – (A × B) where
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78.3 Pour l’application du paragraphe 46(3.1) de la Loi, le facteur d’ajustement pour une pension de retraite qui devient payable au cours d’un mois antérieur à celui au cours duquel le cotisant atteint l’âge de 65 ans est obtenu par la formule suivante : 1 – (A × B) où :
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