Other Canada Pension Plan (CPP)

Reasons and decision

Decision

The appeal is dismissed.

Introduction

[1] This is an appeal of a decision of the General Division of the Social Security Tribunal (Tribunal) dated April 10, 2016 summarily dismissing the Appellant’s appeal of the Respondent’s approval of the Added Party’s application for a division of unadjusted pensionable earnings (DUPE or credit split) under the Canada Pension Plan (CPP).

[2] No leave for appeal is necessary in the case of an appeal to the Appeal Division 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.

Overview

[3] The Appellant and the Added Party were married on October 1, 1985 and separated on April 28, 2001. The divorce was finalized on November 15, 2001. On May 2, 2001, they entered into a separation agreement indicating that both parties reside in Ontario and that the agreement was to be governed by the law of Ontario. Paragraph 9 of the separation agreement provides:

Neither the husband nor the wife will make a claim to a share in any pension of the other, and each hereby releases any right, title or interest or claim he or she may have in any pension of the other now or in the future.

[4] On November 28, 2014, the Added Party submitted an application for a DUPE in relation to her marriage to the Appellant. The Respondent approved the Added Party’s application for a DUPE for the period from January 1, 1985 to December 31, 2000.

[5] On April 10, 2015, the Appellant requested reconsideration, taking the position that the Added Party waived her right to a DUPE under the separation agreement dated May 2, 2001 and the divorce decree dated October 15, 2002. The Respondent maintained its position on reconsideration, and the Appellant appealed to the Tribunal on November 20, 2015.

[6] In the submissions accompanying his notice of appeal, the Appellant raised a potential Charter challenge. On February 17, 2016, the Tribunal notified the Appellant that if he wished to argue constitutional grounds, he was required to file a notice in accordance with paragraph 20(1)(a) of the Social Security Tribunal Regulations (SST Regulations). The Appellant was also advised that if he failed to file the notice, his appeal would proceed by regular appeal, and he would not be given the opportunity to raise any constitutional issues during the appeal process. The Appellant did not file the requisite notice by the specified submission deadline of March 25, 2016.

[7] In its decision dated April 10, 2016, the General Division summarily dismissed the Appellant’s appeal, finding that the separation agreement and divorce decree did not expressly mention the CPP, suggesting that the parties did not intend that a division be made. It also found that, since the separation agreement was signed in Ontario after June 4, 1986, and the province of Ontario does not have a law allowing couples to opt out of CPP credit splits, neither the separation agreement nor the divorce decree prevented a DUPE.

[8] The Appellant submitted an Application Requesting Leave to Appeal to the Appeal Division on July 7, 2016. Notwithstanding the fact that he used the incorrect form, his appeal was declared complete within the requisite 90-day deadline. I have decided that an oral hearing is unnecessary and the appeal can proceed on the basis of the documentary record for the following reasons:

1. There are no gaps in the file or need for clarification;
2. The form of hearing respected the requirements under the SST Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

The law

DESDA and Associated Regulations

[9] According to subsection 58(1) of the DESDA, the only grounds of appeal are that:

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 made in a perverse or capricious manner or without regard for the material before it.

[10] Subsection 53(1) of the DESDA states that the General Division must summarily dismiss an appeal if satisfied that it has no reasonable chance of success.

SST Regulations

[11] An appellant who wishes to pursue a constitutional challenge before the Tribunal must file a notice in accordance with paragraph 20(1)(a) of the SST Regulations.

[12] Section 22 of the SST Regulations states that before summarily dismissing an appeal, the General Division must give notice in writing to the appellant and allow the appellant a reasonable period of time to make submissions.

CPP

[13] Under section 55.1 of the CPP, a former spouse may apply for a DUPE, which triggers an equitable sharing of CPP credits after a separation or divorce. According to paragraph 55.1(1)(a), a DUPE is mandatory in the case of spouses, following a judgment granting a divorce after January 1, 1987.

[14] Subsection 55.2(2) of the CPP states that, except as provided in subsection (3), where, on or after June 1986, a written agreement between persons subject to a division under section 55 or 55.1 was entered into, or a court order was made, the provisions of that agreement or court order are not binding on the Minister for purposes of a DUPE.

[15] Subsection 55.2(3) of the CPP provides that a spousal agreement signed on or after June 4, 1986, is binding on the Minister and prevents a division of pension credits if:

1. (a) the terms of the agreement expressly mention the CPP and the parties’ intention that no division be made;
2. (b) such a provision is expressly permitted under the provincial law governing the agreement;
3. (c) in the case of a division under paragraph 55.1(1)(a), the agreement was entered into before the judgment granting divorce; and
4. (d) that provision of the agreement has not been invalidated by a court order.

Issues

[16] The issues before me are as follows:

1. What standard of review applies when reviewing decisions of the General Division?
2. Did the General Division breach a principle of natural justice in its conduct of the Appellant’s appeal?
3. Did the General Division err in refusing to hear the Appellant’s Charter argument?
4. Did the General Division err in choosing to summarily dismiss the Appellant's claim?
5. Did the General Division err in allowing a DUPE between the Appellant and the Added Party?

Submissions

[17] In his notice of appeal received on dated July 7, 2016, the Appellant made the following submissions:

1. He is disgusted with the General Division’s decision and disenchanted with the appeal process. If a decision cannot be based on fairness, compassion and extenuating circumstances, then what is the point of the appeal process? None of his questions have been answered.
2. His appeal was heard by an individual, not a panel, which did not look at the whole picture. There was no point to the proceeding, if its sole purpose was to state the obvious.
3. He served in the Canadian Forces for 27 years and based his retirement, in part, on what he calculated would be his CPP pension. Eight years later, he was told by the federal government he owed his former wife money, despite his court-ratified separation agreement, which clearly stated in paragraph 9 that “Neither the husband nor the wife will make a claim to a share in any pension of the other…”
4. It is ludicrous and unfair to disregard the intention of the separation agreement merely because his CPP was not expressly included. The General Division quoted a paragraph from Service Canada’s website but did not rely on any legal source for its decision.
5. He did not respond to the General Division’s request for submissions on a constitutional challenge, as he will raise it if, or whenever, he chooses to do so. He does not require permission from the Tribunal.

[18] In a letter dated August 19, 2016, the Respondent made the following submissions:

1. The General Division correctly stated the test for a summary dismissal under section 53 of the DESDA and correctly set out the law with respect to a DUPE under sections 55.1 and 55.2 of the CPP. The General Division did not err in its application of the law to the facts, which are not in dispute. According to the CPP, a DUPE is mandatory following a judgment of divorce once the Respondent is informed of the divorce judgment. A court order is not binding on the Respondent for the purposes of a DUPE unless the requirements in subsection 55.2(3) of the CPP are met. Ontario, where the divorce decree in this case was issued, has not enacted legislation that allows parties to opt out of the CPP credit splitting provisions.
2. In this case, a credit split was mandatory, since the separation agreement and divorce decree were made in Ontario, which does not have legislation permitting the parties to opt out of a DUPE under the CPP. The General Division did not err in summarily dismissing the appeal, as it had no reasonable chance of success. Its decision was reasonable and is owed deference.
3. The Appellant was barred from raising a constitutional challenge before the General Division because he did not comply with the requirements of paragraph 20(1)(a) of the SST Regulations. In the General Division’s correspondence of February 17, 2016, the Appellant was advised that his appeal would proceed as a regular appeal and he would not be given the opportunity to raise any constitutional issues during the appeal process if he failed to file the required notice. The Appellant did not file such notice or request additional time in which to do so. Having been afforded the opportunity to mount a constitutional challenge at the General Division, he cannot now attempt to circumvent the process and argue the Charter before the Appeal Division.

[19] Neither the Appellant made nor the Respondent made any specific submissions on the appropriate standard of review or the level of deference owed by the Appeal Division to determinations made by the General Division.

[20] The Added Party did not file any submissions.

Analysis

Standard of Review

[21] Until recently, it was accepted that appeals to the Appeal Division were governed by the standards of review set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick.^{Footnote 1} In matters involving alleged errors of law or failure to observe principles of natural justice, the applicable standard was held to be correctness, reflecting a lower threshold of deference deemed to be owed to a first-level administrative tribunal. In matters where erroneous findings of fact were alleged, the standard was held to be reasonableness, reflecting a reluctance to interfere with findings of the body tasked with hearing factual evidence.

[22] The Federal Court of Appeal decision Canada (MCI) v. Huruglica^{Footnote 2} has rejected this approach, holding that administrative tribunals should not use standards of review that were designed to be applied by appellate courts. Instead, administrative tribunals must look first to their home statutes for guidance in determining their role.

Natural Justice

[23] In his submissions, the Appellant suggested that he was entitled to, or at least had a reasonable expectation of, an oral hearing before a multi-person panel, but the law is unambiguous on these matters. The principles of natural justice are concerned with ensuring that appellants have a reasonable opportunity to present their case, that they have a fair hearing, and that decisions are rendered free of bias. Subsection 45(2) allows for hearings before single members of the General Division. Section 21 of the SST Regulations makes it clear that there is no right to an oral hearing: even when an appellant has an arguable case, the General Division has the discretion to decide how an appeal will be heard, whether in writing, by teleconference, videoconference or in person. The absence of any right to an oral hearing is underlined by the fact that the DESDA also provides for a summary dismissal process.

Charter Argument

[24] I agree with the Respondent that, as the Appellant failed to comply with the formal requirements set out in paragraph 20(1)(a) of the SST Regulations, he was barred from raising a constitutional challenge, either before the General Division or at the Appeal Division.

Summary Dismissal

[25] Where questions of law and natural justice are concerned, the prevalent jurisprudence suggests that an appellate body should show little or no deference when reviewing the actions of the trier of fact. In this case, the General Division cited subsection 53(1) of the DESDA at paragraph 3 of its decision, correctly stating that an appeal must be summarily dismissed if it has no reasonable chance of success.

[26] It is not enough to merely recite the correct test without properly applying it to the established facts. In a succession of cases,^{Footnote 3} the Federal Court of Appeal has reframed the test as follows: Is it plain and obvious on the face of the record that the appeal is bound to fail, regardless of the evidence or arguments that could be presented at a hearing? As long as there is an adequate factual foundation to support the appeal and the outcome is not obvious, then the matter is not appropriate for a summary dismissal. A case that is merely weak would not be appropriate for a summary disposition, as it would necessarily involve assessing the merits of the case and examining the evidence and assigning weight to it.

[27] Having reviewed the law and the facts in this case, I must conclude that the General Division did not err in law when it invoked the summary dismissal provision to this particular set of circumstances. For reasons that I will explain in detail below, I find the appeal had no reasonable chance of success.

DUPE

[28] Whether the General Division erred in allowing a credit split between the Appellant and the Added Party is an issue closely intertwined with the preceding issue as to whether the General Division erred in choosing to summarily dismiss the Appellant’s claim. As I have noted above, the Appellant did not advance any specific allegations of error which may have been made by the General Division. The thrust of his submissions, however, is that the General Division failed to consider the separation agreement and divorce decree to be final and binding on the Added Party. He submitted that the separation agreement and divorce decree should preclude a DUPE under the CPP.

[29] These submissions mirror those that the Appellant made previously to the General Division. In reviewing the law and in particular, sections 55.1 and 55.2 of the CPP, the General Division concluded that after a divorce has been granted and after a party applies for a credit split, then a DUPE is mandatory. Under subsection 55.2(2) of the CPP, a spousal agreement or court order is not binding on the Respondent. The division is made, subject to the exception set out under subsection 55.2(3) of the CPP—that is, when there is a written agreement entered into between the parties in which they explicitly mention the CPP and opt out of the division, and that provision of the agreement is expressly permitted in the province that governs the agreement. In my view, the General Division’s restatement of the law as it pertains to DUPEs was correct.

[30] In this case, both the separation agreement and divorce decree were governed by the laws of Ontario. The Appellant criticized the General Division for quoting Service Canada’s website in support of its finding that only Quebec, Saskatchewan, British Columbia and Alberta have laws permitting parties to waive the provisions of subsection 55.2(2) of the CPP, but he made no submissions to show that Ontario had similar legislation. Given this, the General Division was within its authority to accept the Respondent’s submission that there was nothing in Ontario law that allowed the Appellant and his former wife to opt out of the mandatory DUPE.

[31] The Appellant also insisted that the General Division failed to adequately consider his submission that the overarching language of the separation agreement and divorce decree necessarily prohibited division of the CPP, as well as other pensions. However, subsection 55.2(3) of the CPP permits parties to opt out the mandatory credit split only when a written agreement between them explicitly mentions the CPP, and that is not the case here. In any case, as noted above, even if there had been explicit mention of the CPP in the separation agreement, Ontario law does not permit opting out.

[32] Based on the set of facts before it, the General Division was left with no option but to dismiss the Appellant’s appeal against a DUPE occurring. Given that there was no basis to deny a credit split—that is, there were no triable issues or any merit to the claim—the General Division rightly concluded that the matter could be disposed of by way of a summary dismissal.

[33] The Appellant clearly feels that fairness demands that the DUPE be disallowed. Unfortunately, both the General Division and the Appeal Division must follow the letter of the law and lack the discretion to provide a remedy in this situation. They can only exercise such jurisdiction as granted by their enabling statute. Support for this position may be found in Canada (MHRD) v. Tucker,^{Footnote 4} among many other cases, which have held that an administrative tribunal is not a court but a statutory decision-maker and therefore not empowered to provide any form of equitable relief.

Conclusion

[34] For the reasons set out above, the appeal is dismissed.