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Reasons and decision
Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated October 14, 2015. The General Division proceeded on the record. The General Division determined that the Applicant had not demonstrated that she met the definition of “survivor” as defined in subsection 42(1) of the Canada Pension Plan and that she therefore was not entitled to a survivor’s pension. The Applicant filed an Application Requesting Leave to Appeal to the Appeal Division on January 12, 2016. To succeed on this application, I must be satisfied that the appeal has a reasonable chance of success.
Issue
[2] Does the appeal have a reasonable chance of success?
Submissions
[3] The Applicant raises a number of grounds of appeal. She alleges, for instance, that the General Division relied on falsified documents from the Added Party, in finding that the Applicant and the deceased had been separated between January 1, 2006 until the deceased’s death on April 24, 2009, and that the Added Party and the deceased resided together in a common-law relationship during this time.
[4] The Applicant alleges that the Added Party never resided with her deceased spouse in a common-law relationship. The Applicant alleges that, at most, the Added Party was merely an employee of the deceased, and that the Added Party somehow managed to falsify documents in an effort to portray herself as the common-law spouse of the deceased, and thereby fraudulently obtain benefits to which she was not lawfully entitled to receive.
[5] The Applicant submits that she had provided information to the Social Security Tribunal to show that she and the deceased resided together between January 1, 2006 and April 24, 2009. The Applicant advises that she provided copies of lease agreements to show that she and the deceased resided together until January 1, 2009. She submits that she provided this information to the Social Security Tribunal on time, but the General Division did not receive nor consider it before rendering its decision on October 14, 2015.
[6] The Applicant submits that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction, in that it rendered its decision without providing her with a fair or reasonable opportunity to present her case. She submits that the Social Security Tribunal notified her by a letter dated September 18, 2015 that she would have until October 19, 2015 by which she could file any additional documents or submissions, but that despite this, the General Division rendered its decision before this date.
[7] The Respondent has not filed any written submissions.
Analysis
[8] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal as being limited to the following:
- (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.
[9] I need to be satisfied that the reasons for appeal fall within any of the grounds of appeal and that the appeal has a reasonable chance of success, before leave can be granted. The Federal Court of Canada recently affirmed this approach in Tracey v.Canada (Attorney General), 2015 FC 1300.
[10] The Social Security Tribunal sent two letters dated September 18, 2015 to the Applicant. The first letter reads in part:
Filing period
If parties have additional documents or submissions to file, they must be received by the Tribunal no later than October 19, 2015. A copy of any new documents received by the Tribunal will be provided to the other parties and they will be given an opportunity to respond.
Response period
The Filing Period is followed by a Response Period. If a party wishes to respond to any documents filed during the Filing Period, the response must be received by the Tribunal no later than November 13, 2015.
[11] The second letter dated September 18, 2015 to the Applicant reads:
As mentioned in the Tribunal’s letter dated September 18, 2015, the parties have until October 19, 2015 to file additional documents or submissions, and until November 13, 2015 to respond to documents filed during the Filing period. Documents filed after these deadlines will be provided to the other party but they will be considered only at the Tribunal Member’s discretion. Parties will be informed whether documents filed late will be excluded or considered by the Tribunal Member in making the decision, either in writing or during the hearing.
[12] A review of the hearing file indicates that the Applicant had filed a 98-page document with the Social Security Tribunal on October 16, 2015. The General Division was not provided with and did not consider this document.
[13] The Applicant expected that she could file any additional documents and submissions up to and including October 19, 2015, given the letters dated September 18, 2015 from the Social Security Tribunal. She also expected that the General Division would review and consider these documents, prior to rendering its decision. Instead, she learned that the General Document rendered its decision on October 14, 2015. It seems that the General Division should have waited until October 19, 2015 had passed, before rendering its decision.
[14] It is not for me to evaluate the documents filed by the Applicant on October 16, 2015, but they may have had some probative value and may have had some impact on the outcome of these proceedings.
[15] The Applicant alludes to other irregularities, but for the purposes of this leave application, it is not necessary for me to address them, as I am satisfied that the appeal has a reasonable chance of success, on the basis that the General Division may have failed to observe a principle of natural justice in ensuring that the Applicant had a fair opportunity to present her case.
Conclusion
[16] The application for leave to appeal is granted.
[17] This decision granting leave in no way presumes the result of the appeal on the merits of the case. However, given the strength of the ground of appeal and the legal nature of the issue involved on appeal, I am inclined to proceed to hearing the matter on the record at the earliest opportunity available, short of any compelling submissions from the Respondent. The parties may make submissions within the time permitted under the DESDA, or may, by consent of the parties, seek to abridge the time to respond.