Other Canada Pension Plan (CPP)

Reasons and decision

Introduction

[1] The Appellant appeals a decision dated November 9, 2015 of the General Division, whereby it summarily dismissed her appeal of a decision denying her request to increase the retroactivity of payment of a retirement pension under the Canada Pension Plan. The General Division summarily dismissed the appeal, given that it was satisfied that it did not have a reasonable chance of success.

[2] The Appellant filed an appeal of the decision of the General Division on December 8, 2015 (the “Notice of Appeal”). No leave is necessary in the case of an appeal brought under subsection 53(3) of the Department of Employment and Social Development Act (DESDA), as there is an appeal as of right when dealing with a summary dismissal from the General Division. Having determined that no further hearing is required, this appeal before me is proceeding pursuant to subsection 37(a) of the Social Security Tribunal Regulations.

Issues

[3] The issues before me are as follows:

1. Did the General Division err in choosing to summarily dismiss the Appellant’s appeal?
2. Did the General Division err in determining that the Appellant was not entitled to greater retroactivity of payment of a retirement pension under the Canada Pension Plan?

History of proceedings

[4] The Appellant was born in May 1941.  She turned seventy years of age in May 2011. She applied for a Canada Pension Plan retirement pension in May 2014. A retirement pension was payable commencing in June 2013, 11 months prior to the date

her application was submitted. The Appellant sought greater retroactivity of payment of her retirement pension to June 2011, the month after her 70th birthday.

[5] The Respondent denied the Appellant’s request for greater retroactivity, initially and upon reconsideration. The Appellant appealed the reconsideration decision to the General Division on October 15, 2014.

[6] On June 3, 2015, the Respondent filed submissions.  The Respondent submitted that under subsection 67(3.1) of the Canada Pension Plan, the Appellant was not entitled to greater retroactivity of her retirement pension.

[7] On September 21, 2015, the Respondent filed a request that the appeal be dismissed. The Respondent submitted that the Appellant’s request to change the commencement date of her retirement pension could not succeed as the Canada Pension Plan did not permit the Respondent to do so. The Respondent submitted that the Appellant was not eligible for further retroactivity of her Canada Pension Plan retirement pension, and she had already received her retirement pension at the earliest possible date as outlined in the Canada Pension Plan.

[8] By letter dated October 6, 2015, the General Division gave notice in writing to the Appellant, advising that it was considering summarily dismissing the appeal. The General Division wrote:

Subsection 67(3.1) of the CPP determines when a contributor may start to receive his or her pension. If payment of the retirement pension is approved, the pension is payable from the latest of:

1. (i) the month when the applicant turned sixty years of age;
2. (ii) the month following the month when the application was received, if the applicant was under sixty-five years of age at the time of application;
3. (iii) the eleventh month preceding the month when the application was received, if the applicant reached sixty-five years of age at the time of application;
4. (iv) the month chosen by the applicant in the application

The evidence contained in your file confirms that your application for a retirement pension was received by the Minister on May 16, 2014. At the time your application was received you were over the age of sixty-five; therefore the earliest date that your retirement pension could commence would be the eleventh month proceeding the month when the application was received by the Minister, which would be June 2013.

[9] The General Division invited the Appellant to provide detailed written submissions by no later than November 6, 2015, if she believed that the appeal should not be summarily dismissed, and that she should explain why her appeal had a reasonable chance of success.

[10] The Appellant filed submissions with the Social Security Tribunal on October 30, 2015, advising that she did not apply for a retirement pension sooner as she was unaware “that the eleven-month rule for retroactive payments existed and that it would be applied that rigidly”. She submitted that she should be entitled to retroactive payments to June 2011, given that she had made contributions to the Canada Pension Plan throughout the years she was employed, and given that she was unaware that she could receive a retirement pension even while she continued to be employed after age 70. She wrote that “[b]eing misinformed should not cause an individual to lose out to that extent”.

[11] The General Division rendered its decision on November 9, 2015.  The General Division found that the earliest date that the Appellant’s retirement pension could commence would be June 2013, the eleventh month proceeding the month that her application was received by the Respondent. The General Division also found that there were no provisions within the Canada Pension Plan that conferred any jurisdiction or authority on the General Division to chance the commencement date of the Appellant’s retirement pension. As the General Division found that the appeal had no reasonable chance of success, it summarily dismissed the appeal.

[12] On December 8, 2015, the Appellant filed an appeal from the summary dismissal decision of the General Division. She alleged that the General Division had failed to observe a principle of natural justice. She advised that she had been unaware that she could have applied for a retirement pension sooner, despite working past age 70.

[13] The Social Security Tribunal wrote to the Appellant on December 23, 2015, seeking clarification and information on how the General Division failed to observe a principle of natural justice. The Appellant responded to the Social Security Tribunal by letter dated January 4, 2016.

Submissions

[14] Subsection 58(1) of the DESDA sets out the only grounds of appeal.  They are as follows:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (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.

[15] The Appellant submits that the General Division failed to observe a principle of natural justice.  She submits that as she had:

…paid into the Canada Pension Plan during all [her] years of employment, withholding payments retroactively to age 70, when [she] would have been entitled to receive them, is unjust and falls into the category of “failing to observe a principle of natural justice” on the part of the General Division ... This is a great loss to [her] and a great price to pay for being misinformed regarding the deadline for submitting an application for Canada Pension Plan benefits. Justice should ensure that benefits be paid retroactively to when CPP contributions were no longer being made, even if there were a small penalty for late application. A just decision would not impose a penalty of that severity, that is two years’ worth of benefits, simply for missing the application deadline.

[16] The Respondent did not file any submissions in these proceedings.

Issue 1: Did the General Division err in choosing to summarily dismiss the appellant’s appeal?

[17] The Appellant did not address the issue of the appropriateness of the summary dismissal of her appeal before the General Division, but I will nonetheless briefly address it.

[18] Subsection 53(1) of the DESDA requires the General Division to summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success. If the General Division either failed to identify the test or misstated the test altogether, this would qualify as an error of law.

[19] The first step required the General Division to correctly state the test for a summary dismissal. It did that by citing subsection 53(1) of the DESDA at paragraph 4 of its decision. Having correctly identified the test, the second step required the General Division to apply the law to the facts.

[20] The General Division found that there was no chance for the Appellant to succeed on an appeal, given the law and the facts. There was no dispute over the facts or the law. The General Division addressed the Appellant’s submissions that the result of limited retroactivity of a retirement pension was unjust. The General Division noted that there were no provisions within the Canada Pension Plan which permitted it to increase the retroactivity of payments. The General Division found that it was empowered only to the extent of its governing statute and that it was required to interpret and apply the provisions as set out in the Canada Pension Plan. The General Division found the provisions of the Canada Pension Plan to be clear and the evidence unequivocal.

[21] I find that as the General Division was satisfied that the appeal was without any merit, it rightly concluded that the appeal had no reasonable chance of success, and properly summarily dismissed it on that basis.

Issue 2: Did the General Division err in determining that the appellant was not entitled to greater retroactivity of payment of a retirement pension?

[22] Setting aside the issue of the appropriateness of summarily dismissing the appeal, I will consider whether, as the Appellant alleges, the General Division erred in determining that she was not entitled to greater retroactivity of payment of a retirement pension, on the grounds that it failed to observe a principle of natural justice.

[23] While the General Division may not have been swayed by the consequences of denying greater retroactivity of payment of a retirement pension to the Appellant, this does not sound in a failure to observe the principles of natural justice. After all, as my colleague P. Lafontaine identified in D.P. v. Canada Employment Insurance Commission and D.R.A. Holdings Ltd. (November 23, 2015), currently unreported (AD-15-989), the principles of natural justice exist to ensure that everyone who falls under the jurisdiction of a judicial or quasi-judicial forum is given adequate notice to appear and is allowed every reasonable opportunity to present his or her case and the decision given is free of bias or the reasonable apprehension or appearance of bias.  The fact that the Appellant has suffered a great loss does not indicate that the General Division failed to provide her with a reasonable opportunity to present her case, or that it appeared or was actually biased against her. Hence, it cannot be said that the General Division failed to observe a principle of natural justice.

[24] There is no suggestion by the Appellant that the General Division otherwise refused to exercise its jurisdiction. As the General Division rightly noted, it did not have any jurisdiction or authority to extend the maximum retroactivity period under the Canada Pension Plan.

[25] The Respondent relied on subsection 67(3.1) of the Canada Pension Plan which applies to a retirement pension that commences to be payable on or after January 1, 2012. However, the Appellant suggests that she is entitled to have a retirement pension be payable commencing in June 2011. Theoretically, if that were so, subsection 67(2) of the Canada Pension Plan would seem to govern.  Subsection 67(2) stipulates that a retirement pension commences to be payable for each month commencing with the latest of:

. . .

1. (e) the twelfth month preceding the month following the month in which the applicant applied, if he was over seventy years of age when he applied, . . .

[26] Even subsection 67(2) provides for limited retroactivity of payment of a retirement pension. Even if this subsection were applicable (which it is not), the “twelfth month preceding the month following the month” still results in commencement of a retirement pension after January 1, 2012. Hence, subsection 67(3.1) of the Canada Pension Plan necessarily applies.  That section reads:

Commencement of retirement pension – on or after January 1, 2012

(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

1. (a) the month in which the applicant reached sixty years of age,
2. (b) the month following the month in which the application was received if they were under sixty-five years of age when they applied,
3. (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
4. (d) the month chosen by the applicant in their application. (My emphasis)

[27] The latest of these scenarios is paragraph 67(3.1)(c).  The General Division correctly calculated that the “eleventh month preceding the month in which the application was received” in this case was June 2013. Under the Canada Pension Plan, this was the earliest whereby the Appellant could expect commencement of payment of a retirement pension, given the circumstances.

Conclusion

[28] Given these considerations, the appeal is dismissed.