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Reasons and decision
Decision
[1] The application for leave to appeal (Application) is refused.
Overview
[2] The Applicant, J. V., seeks a credit splitting under the Canada Pension Plan (CPP). The Respondent denied her request, because the Applicant did not apply for credit splitting within 36 months of the day that her marriage was legally terminated. Had both spouses agreed in writing to credit splitting, the Respondent, Minister of Employment and Social Development, could have waived the 36-month time limit. However, the Applicant’s ex-spouse passed away years before her 2016 request to the Respondent.
[3] The Applicant claims that she filed an initial request for credit splitting in 1983 or 1984, and that that request was lost by the Respondent. She did not realize that credit splitting had not, in fact, occurred until long after her ex-spouse passed away in 2009. The Applicant relies on this initial request to establish her entitlement to a credit split, but the Respondent refuses to recognize that she had made an earlier request.
[4] Hence, the Applicant appealed to the General Division of the Social Security Tribunal of Canada (Tribunal), claiming that the Respondent’s refusal is unfair because it had made an administrative error by losing her initial request for a credit split.
[5] The Applicant’s appeal to the General Division was filed late. The General Division refused to grant an extension of time. It concluded that the Tribunal does not have jurisdiction to correct the Respondent’s administrative error or erroneous advice and, therefore, there was no arguable case and no basis to extend the time for appeal. The Applicant filed an Application to the Tribunal’s Appeal Division.
Issues
[6] Before I can grant leave to appeal, I must decide whether the appeal has a reasonable chance of success (on the issue of whether the General Division had exercised its discretion judiciously in refusing to extend the time for filing the late application). In other words, is there an arguable ground upon which the proposed appeal might succeed?Footnote 1
[7] The General Division’s decision turns on its conclusion that it did not have the authority to correct the Respondent’s alleged administrative error. Does the Tribunal have the authority to intervene, even if the Applicant is able to prove that she filed an application for credit splitting in 1983 or 1984?
Analysis
[8] An appeal to the Appeal Division may be brought only if leave to appeal is granted and the Appeal Division must either grant or refuse leave to appeal.Footnote 2
[9] Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of successFootnote 3 based on a reviewable error.Footnote 4 The only reviewable errors are the following: the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; it erred in law in making its decision, whether or not the error appears on the face of the record; or it 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.
[10] The law confers on the General Division the discretionary power to extend the time for appeal. The factors that are taken into account in determining whether to allow further time to appeal are whether there is a continuing intention to pursue the appeal, whether there is a reasonable explanation for the delay, whether there will be prejudice to the other party and whether there is an arguable case,Footnote 5 with the overriding consideration being that the interests of justice be served.Footnote 6 The General Division concluded that the only factor that was not met was an “arguable case”; however, it is the most important factor here, because the Tribunal simply does not have jurisdiction to grant the remedy sought.
[11] In order to successfully appeal a discretionary decision of the General Division, the Applicant would need to demonstrate that the General Division improperly exercised its discretionary power. An improper exercise of discretion occurs if a member gives insufficient weight to relevant factors, proceeds on a wrong principle of law or erroneously misapprehends the facts, or where an obvious injustice would result.
[12] The Applicant submits that her lawyer applied for credit splitting “in 1983 or 1984” and that the Respondent lost the application. She became aware that credit splitting had not taken place 22 years later. That is why she applied for credit splitting in May 2016. Her ex-spouse had long since passed away, and it was not possible to get a written agreement to credit split from him. In any event, she says that her lawyer had applied for credit splitting within 36 months of the divorce.
[13] Although the Applicant does not refer to one of the reviewable errors, I read her grounds of appeal as either a refusal to exercise jurisdiction or an error of law.Footnote 7 An improper exercise of discretion by the General Division would be an error of jurisdiction or an error of law.
[14] I note that the Applicant relies on a letter, in the appeal record, from her lawyer, which she says “supports her claim.” The letter states that her divorce petition would not have included an application for a CPP credit splitting, because, at that time, it was not necessary.
[15] I also note that even if the Applicant could prove that an application (or some form of request) for credit splitting was filed in 1983 or 1984 and that the Respondent had lost it, only the Respondent has the authority to provide a remedy for an administrative error. The CPP refers to “administrative error in the administration of this Act” at subsection 66(4), and it is clear that the authority to take remedial action is reserved for the Minister.Footnote 8 The Tribunal does not have jurisdiction to entertain an appeal of a decision under subsection 66(4).Footnote 9
[16] The Tribunal does not have the power to provide a remedy for an administrative error (such as the loss of a document filed with the Respondent). The Tribunal also cannot vary the legal provisions in the CPP. The General Division properly exercised its discretionary power as it weighed the relevant factors, did not proceed on a wrong principle of law and did not erroneously misapprehend the facts in arriving at its decision. Therefore, the General Division did not commit a reviewable error. In the absence of a reviewable error, the law does not permit the Appeal Division to intervene.
[17] I am satisfied that the appeal has no reasonable chance of success.
Conclusion
[18] The Application is refused.