Other Canada Pension Plan (CPP)

Reasons and decision

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division (GD) dated July 22, 2015. The GD conducted a hearing on the record and determined that the Applicant was not eligible for a survivor’s pension under the Canada Pension Plan, as it found that she was not the deceased contributor’s common-law partner at the time of his death.

[2] On October 16, 2015, the Applicant filed an incomplete Application for Leave to Appeal the GD decision. In response, the Appeal Division (AD) allowed her until January 17, 2016 to submit additional information, and she perfected her application within the specified timeframe.

The law

[3] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESD Act), an appeal to the AD may only be brought if leave to appeal is granted and the AD must either grant or refuse leave to appeal.

[4] Subsection 58(2) of the DESD Act provides that leave to appeal is refused if the AD is satisfied that the appeal has no reasonable chance of success.

[5] According to subsection 58(1) of the DESD Act the only grounds of appeal are the following:

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

[6] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for the Applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the Applicant does not have to prove the case.

Issue

[7] Does the appeal have a reasonable chance of success?

Submissions

[8] The Applicant submits that the GD based its decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before it. She made the following points:

• In or around June 2009, she broke her ankle and she was ordered by her doctor not to put weight on it. As the deceased contributor could not care for her while she was immobilized, she went to live with her girlfriend in North Vancouver.
• The deceased contributor was ordered by court to have no contact with her so he chose to stay at the homes of his daughter and son in Langley, even though he was reluctant to do so. His lawyer suggested the only way he could return home to X X was to “get rid” of her, but he never took decisive steps to end the relationship.
• The statements contained in the letters from the deceased contributor’s criminal lawyer were false, unsupported by evidence and based on hearsay.
• A bank statement indicates that she made numerous purchases during January 2010 at the X X Market in X X. This indicates she was living with the deceased contributor.
• The GD came to an incorrect conclusion because it failed to consider that the court ordered the deceased contributor not to have contact with her, while her doctor ordered her to take measures to protect her health.

Analysis

[9] The Federal Court of Appeal has held that whether an appeal has a reasonable chance of success is akin to determining if there is an arguable case at law: Fancy v. Canada (Attorney General), 2010 FCA 63. The Applicant has not persuaded me that she has an arguable case on the claimed grounds.

[10] The Applicant’s October 12, 2015 letter, which initiated her Application for Leave, set out a narrative similar to what was contained in her prior submissions, in particular her correspondence of April 8 and 9, 2013. It amounted to a recapitulation of her evidence and argument that she was the common-law partner of the deceased contributor at the time of his death. There was nothing of substance in her Application that was not already put before the GD, nor did she articulate any erroneous finding of fact that could cause me to overturn GD decision. Most, if not all, of her allegations were explicitly considered and addressed in the GD’s reasons.

[11] The GD made its decision after conducting what appears to be to be a thorough assessment of the record, weighing the evidence as it deemed appropriate. The Applicant had ample opportunity to present her side of the story, and it appears that she took full advantage of it, making numerous submissions in the more than three years it took for this matter to come to hearing.

[12] The Federal Courts have previously addressed this issue in other cases where it has been alleged that administrative tribunals failed to consider all of the evidnce. In Simpson v. Canada (Attorney General), 2012 FCA 82, the appellant’s counsel identified a number of medical reports which she said that the Pension Appeals Board ignored, attached too much weight to, misunderstood, or misinterpreted. In dismissing the application for judicial review, the Court of Appeal held:

First, a tribunal need not refer in its reasons to each and every piece of evidence before it, but is presumed to have considered all the evidence. Second, assigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact…

[13] Although she did not specifically base her application for appeal on any breach of a principle of natural justice, the Applicant did allege that the GD relied on hearsay evidence. The GD did indeed give weight to Mr. J’s letters, which contained statements purportedly made by the deceased contributor that provided insights into his intentions. Nevertheless, the Federal Court of Appeal ruled in Caron v. Canada (AG), 2003 FCA 254, that an administrative tribunal is not bound by strict rules of evidence applicable in criminal or civil courts and that it is permitted receive and accept hearsay evidence.

[14] The Applicant is requesting that I reassess and reweigh the evidence and decide in her favour, but I am unable to do this, as my authority permits me to determine only whether any of her reasons for appealing fall within the specified grounds and whether any of them have a reasonable chance of success. I am not satisfied that this appeal can succeed on the ground of erroneous finding of fact. An appeal to the AD is not an opportunity for an applicant to re-argue their case and ask for a different outcome.

Conclusion

[15] The Application is refused.