Other Canada Pension Plan (CPP)

Reasons and decision

Decision

The appeal is allowed.

Introduction

[1] This is an appeal of decisions of the General Division of the Social Security Tribunal of Canada (Tribunal), both issued on May 16, 2016, which determined that the Tribunal had no jurisdiction to consider whether the Respondent was justified in terminating the Appellants’ disabled contributor’s child’s benefits (DCCB) and in demanding recovery of what it deemed were overpayments. Leave to appeal was granted on March 23, 2017, on the grounds that the General Division may have erred in rendering its decision.

Overview

[2] The Appellants are brother and sister. A. B. was born in March 1991 and M.-B. was born in January 1993.

[3] The position of the Appellants is that H. B. is their father and that he is married to their mother, J. B.

[4] H. B. immigrated to Canada in June 1996, and applied for Canada Pension Plan (CPP) disability benefits in March 2001. The Respondent approved his application in October 2001.

[5] In April 2002, J. B. applied for the DCCB on behalf of the Appellants. She claimed that H. B., the disabled contributor, was their father. The Respondent approved this application, with the children’s benefits payable to J. B. effective January 2001.

[6] In April 2008, the Respondent commenced an investigation to determine whether H. B. was the father of the children for whom J. B. was receiving the DCCB. In October 2012, following a series of interviews and a detailed review of the available documentation, the Respondent’s Integrity Services Branch concluded that the birth and marriage certificates provided by the Appellants were likely fraudulent. In separate letters dated November 7, 2012, the Respondent notified the Appellants that they had failed to prove they were H. B.’s children. A. B. and M. B. were advised that that they had been overpaid the sums of $5,437 and $3,751, respectively, for the periods in which they had been enrolled in school over the age of 18.

[7] The Respondent denied the Appellants’ requests for reconsideration, and they appealed to the General Division on September 17, 2013. Following a hearing by way of written questions and answers, the General Division issued a decision, dated May 16, 2016, in which it determined that it could not consider the Appellants’ entitlement to the DCCB because it lacked jurisdiction to hear the appeal. It cited a line of cases, beginning with Pincombe v. Canada,^{Footnote 1} that suggest the General Division was barred from entertaining appeals from a discretionary decision of the Respondent to take, or decline to take, remedial action under subsection 66(4) of the CPP.

[8] On October 5, 2016, beyond the 90-day deadline permitted by law, the Appellants jointly filed an application for leave to appeal with the Tribunal’s Appeal Division, alleging that the General Division erred in law by refusing to hear their appeal on its merits.

[9] In my decision of March 23, 2017, I permitted an extension of time to appeal and agreed there was an arguable case that the General Division erred in law when it determined that it lacked jurisdiction.

[10] On April 20, 2017, the Respondent submitted a letter in which it consented to the matter being referred back to the General Division for redetermination by a different member.

[11] Having heard from the parties, I have now decided that an oral hearing is unnecessary and that the appeal can proceed on the basis of the documentary record for the following reasons:

1. The Respondent has indicated that it does not object to a new hearing before the General Division.
2. There are no gaps in the file or need for clarification.
3. This form of hearing respected the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

The law

Department of Employment and Social Development act

[12] According to subsection 58(1) of the Department of Employment and Social Development Act (DESDA), the only grounds of appeal are the following:

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.

[13] According to subsection 59(1) of the DESDA, the Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate, or confirm, rescind or vary the decision of the General Division in whole or in part.

Canada Pension Plan and associated regulations

[14] Subsection 44(1) of the CPP provides that a DCCB shall be paid to each child of a disabled contributor subject to certain conditions.

[15] Subsection 42(1) of the CPP defines a child of a contributor as a natural child of the contributor; a child who was legally adopted, or adopted in fact by a contributor while the child was under 21; or a child of whom, either legally or in fact, the contributor had custody and control before the child was 21 years old.

[16] Subsection 42(1) of the CPP also defines a contributor’s child as a child who is less than 18 years of age, as well as a child between 18 and 25 who is in full-time attendance at a school or university as defined by regulation.

[17] Subsection 66(1) of the CPP provides that “[a] person or estate that has received or obtained by cheque or otherwise a benefit payment to which the person or estate is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person or estate is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be.”

[18] Subsection 66(2) of the CPP provides that “[i]f a person has received or obtained a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, the amount of the benefit payment or the excess amount, as the case may be, constitutes a debt due to Her Majesty and is recoverable at any time in the Federal Court or any other court of competent jurisdiction […].”

[19] Subsection 66(3) of the CPP states:

Notwithstanding paragraph 61(2)(b) and subsections (1) and (2) of this section, where a person has received or obtained a benefit payment to which he is not entitled, or a benefit payment in excess of the amount of the benefit payment to which he is entitled, and the Minister [for the purposes of this appeal, the Respondent] is satisfied that:

1. (a) the amount or excess of the benefit payment cannot be collected within the reasonably foreseeable future,
2. (b) the administrative costs of collecting the amount or excess of the benefit payment are likely to equal or exceed the amount to be collected,
3. (c) repayment of the amount or excess of the benefit payment would cause undue hardship to the debtor, or
4. (d) the amount or excess of the benefit payment is the result of erroneous advice or administrative error on the part of the Minister or an official of the Department of Employment and Social Development acting in an official capacity in the administration of this Act,

the Minister may, unless that person has been convicted of an offence under any provision of this Act or of the Criminal Code in connection with the obtaining of the benefit payment, remit all or any portion of the amount or excess of the benefit payment.

[20] Subsection 66(4) of the CPP provides that if the Minister [Respondent] is satisfied that, as a result of erroneous advice or an administrative error, a person has been denied:

1. (a) a benefit to which that person would have been entitled,
2. (b) a division of unadjusted pensionable earnings, or
3. (c) an assignment of a retirement pension,

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 had the erroneous advice not been given or the administrative error not been made.

[21] Section 75 of the CPP provides that where a DCCB is payable to the child of a disabled contributor, the payment shall be made to the person having custody and control of the child if the child has not reached the age of 18 years.

[22] Subsection 76(1) of the CPP states that a DCCB ceases to be payable with the payment for the month in which:

1. (a) the child ceases to be a dependent child;
2. (b) the child dies;
3. (c) the contributor’s disability benefit ceases to be payable;
4. (d) the child is adopted legally or in fact by someone other than the disabled contributor or the disabled contributor’s spouse or common-law partner, unless the disabled contributor is maintaining the child, as defined by regulation; or
5. (e) the disabled contributor ceases to have custody and control of the child, where the child is a child as defined in subsection 42(1) by reason of the disabled contributor having had such custody and control.

[23] Section 52 of the Canada Pension Plan Regulations (CPP Regulations) sets out information and evidence that the Minister may request for the purpose of determining an applicant’s eligibility for a benefit, the amount that an applicant is entitled to receive as a benefit, or a beneficiary’s eligibility to continue to receive a benefit. The information and evidence that may be requested includes whether a disabled contributor’s dependent child is in fact his or her child.

[24] Subsection 59(1) of the CPP Regulations provides that:

where evidence is required under the Act or these Regulations to determine the eligibility or continuing eligibility of any beneficiary to receive any amount payable as a benefit and where the Minister has requested such evidence and the beneficiary has not complied with the request or the Minister is not satisfied with the evidence furnished by that beneficiary, the Minister may, on 30 days written notice, withhold payment of the benefit until such time as the beneficiary has furnished the evidence and the Minister is satisfied as to the eligibility of that beneficiary to receive benefits.

Issues

[25] The issues before me are as follows:

1. Did the General Division err in law when it determined that it could not consider the Appellants’ entitlement to the DCCB because it lacked jurisdiction to hear the appeal?
2. If the answer to the above question is “yes,” then what is the appropriate remedy?

Submissions

[26] In their applications requesting leave to appeal, the Appellants alleged that the General Division erred by basing its decision on “hypo-technical” grounds of jurisdiction. After the Respondent notified the Appellants that they were ineligible for the DCCB and demanded repayment of past benefits, it advised them that they had the right to appeal the decision to the ’Income Security Section of the Tribunal. The Appellants duly appealed to the General Division and submitted written answers to questions from the presiding member. Nowhere was it ever communicated to the Appellants during this process that they were appealing to the wrong forum. The General Division did not assess the large volume of documentary evidence that the Appellants produced to show they were the disabled contributor’s children; only at the tail end of the proceedings did the General Division inform them that the matter was beyond its jurisdiction.

[27] In its letter of April 20, 2017, the Respondent maintained its position that the Appellants were not entitled to receive the DCCB, but it conceded that the General Division member appeared to have been under the mistaken impression that the Appellants had accepted the Respondent’s decision regarding entitlement and that they were merely seeking to avoid having to repay monies already received pursuant to subsection 66(3) of the CPP. The General Division’s misunderstanding of the issue led to its determination that it lacked jurisdiction to consider the appeals. The Respondent added that, while the General Division was correct in finding it lacked jurisdiction to hear an appeal regarding a decision made under subsection 66(3) of the CPP, this was not the issue before it.

[28] In light of this error, the Respondent recommended that the Appeal Division refer the matter back to the General Division for a new hearing, pursuant to subsection 59(1) of DESDA.

Analysis

[29] Having reviewed the submissions, I agree with the parties that the General Division erred in finding that it lacked jurisdiction to hear the Appellants’ appeals on their merits. The General Division’s analysis began by noting the statutory authorities (subsections 66(1) and (2) of the CPP and subsection 51(9) of the CPP Regulations) relied upon by the Respondent to terminate the Appellants’ DCCB and seek recovery of benefits already paid. It then declared that “[t]he seminal case dealing with jurisdiction in cases such as this is the decision of the Federal Court of Appeal in Pincombe,” which addressed the Minister’s discretionary powers under what are now subsections 66(3) and 66(4) of the CPP to take remedial action where a benefit has been denied or overpaid or as a result of erroneous advice or an administrative error. The General Division ultimately found that it could not entertain an appeal on a discretionary decision of the Minister that was properly subject to review by application to the Federal Court.

[30] The General Division’s reasoning raises two questions. First, I am not sure whether the Minister’s decision to deny the Appellants the DCCB and seek recovery could be categorized as discretionary. It is true that subsection 59(1) of the CPP Regulations allows the Minister discretion in how it assesses the evidence surrounding eligibility, but the substance of that eligibility is set out in subsection 44(1) of the CPP, which says that the DCCB shall be paid to each child of a disabled contributor. If that is the case, a right of appeal to the Tribunal would be established under sections 81 and 82 of the CPP, which offer recourse to beneficiaries who are “dissatisfied with any determination as to the amount of a benefit payable [...].”

[31] Second, having cited Pincombe, nowhere in its decision did the General Division specify what “erroneous advice or administrative error” the Respondent may have made. If the General Division was referring to the Respondent’s original decision to approve the Appellants for the DCCB, I am not sure whether this can be characterized as “advice,” “administrative” or an “error.” Rather, it would seem to be a substantive act—one that, on the face of it, had no applicability to the remedies enshrined in subsections 66(3) or 66(4).

[32] For this reason, I do not believe that Pincombe and its descendants apply in the present situation. A plain reading of subsections 66(3) and 66(4) suggests that they were intended to help claimants who have been denied or overpaid benefits through clerical or staff errors; they are not, on their face, meant to be mechanisms by which the Minister makes or corrects substantive determinations regarding entitlement. It is notable that the Appellants never claimed they were denied benefits because of an administrative error or erroneous advice, nor did the Minister admit to such a mistake; rather, the Appellants were denied benefits because of a deliberate decision that was made in the wake of a comprehensive investigation. If there was an error here, it might have been in granting the DCCB to the Appellants in the first place, but even so, the Minister would likely argue that it came about only because of a fraudulent misrepresentation.

Conclusion

[33] For the reasons discussed above, the appeal is allowed.

[34] Section 59 of the DESDA sets out the remedies that the Appeal Division can give on appeal. To avoid any apprehension of bias, it is appropriate in this case that the matter be referred back to the General Division for a de novo hearing before a different General Division member.