Other Canada Pension Plan (CPP)

Reasons and decision

Decision

[1] The appeal is allowed and the matter is referred back to the General Division for reconsideration.

Overview

[2] This appeal concerns the extent to which the law permits retroactive payment of the Disabled Contributor’s Child Benefit (DCCB). On February 22, 2016, the Appellant applied for the DCCB on behalf of his two children. The Respondent approved his application with an effective date of March 2015, which it determined was the fullest period of retroactivity permitted under the Canada Pension Plan (CPP).

[3] The Appellant appealed this decision to the General Division of the Social Security Tribunal of Canada (Tribunal), claiming that

• the effective date of payment should be January 2011, when his children first came under his custody and control;
• he was incapacitated from making a DCCB application after January 2014;
• the law was unfair and the Respondent’s refusal to pay more benefits violated his children’s rights under the Canadian Charter of Rights and Freedoms (Charter).

[4] The General Division summarily dismissed the appeal, finding that none of the Appellant’s grounds had a reasonable chance of success. The Appellant then submitted a notice of appeal to the Tribunal’s Appeal Division alleging that the General Division erred in rendering its decision.

[5] I see no need for a further hearing and have decided this appeal on the basis of the existing documentary record.^{Footnote 1} For the following reasons, I find that the General Division erred in law when it summarily dismissed the Appellant’s appeal in the face of an arguable Charter challenge related to the inapplicability of the CPP’s incapacity provisions to DCCB applications.

Issues

[6] The issues before me are as follows:

1. How much deference should the Appeal Division extend to General Division decisions?
2. Did the General Division err in limiting the Appellant to 11 months of retroactive DCCB payments?
3. Did the General Division err in finding that the incapacity provision of subsection 60(8) of the CPP does not apply to DCCB applications?
4. Did the General Division act appropriately in barring the Appellant from pursuing a Charter argument?
5. Did the General Division apply the correct test for a summary dismissal?

Analysis

(a) How much deference should the Appeal Division show the General Division?

[7] According to subsection 58(1) of the Department of Employment and Social Development Act (DESDA), the only grounds of appeal to the Appeal Division are that the General Division erred in law, failed to observe a principle of natural justice, or 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. 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, or vary the General Division decision in whole or in part. ^{Footnote 2}

[8] 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 3} Where errors of law or a failure to observe principles of natural justice were alleged, the applicable standard was held to be correctness, reflecting a lower threshold of deference deemed to be owed to a first-level administrative tribunal. 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.

[9] The Federal Court of Appeal decision Canada v. Huruglica^{Footnote 4} 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. This premise led the Court to determine that the appropriate test flows entirely from an administrative tribunal’s governing statute: “The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent […]”

[10] The implication here is that the standards of reasonableness or correctness will not apply unless those words, or their variants, are specifically contained in the home statute. Applying this approach to the DESDA, one notes that paragraphs 58(1)(a) and (b) do not qualify errors of law or breaches of natural justice, which suggests that the Appeal Division should afford no deference to the General Division’s interpretations. The word “unreasonable” is not found in paragraph 58(1)(c), which deals with erroneous findings of fact. Instead, the test contains the qualifiers “perverse or capricious” and “without regard for the material before it.” As suggested by Huruglica, those words must be given their own interpretation, but the language suggests that the Appeal Division should intervene when the General Division bases its decision on an error that is clearly egregious or at odds with the record.

(b) Did the General Division correctly limit retroactive DCCB payments to 11 months?

[11] As the General Division correctly noted, paragraph 74(2)(b) of the CPP limits payment of the DCCB to no earlier than “the twelfth month preceding the month following the month the application was received. The Appellant submitted his DCCB application on February 22, 2016. As a result, he was statute-barred from receiving more than 11 months of back payments following approval of his application.

[12] The issue then became whether there was any exception to the rule that would have permitted an extension of the period of retroactivity.

(c) Did the General Division err in finding incapacity inapplicable to the DCCB?

[13] The Appellant has not persuaded me that the General Division erred in law by finding the CPP’s incapacity provision irrelevant to his DCCB application.

[14] Read together, subsections 74(1) and (2) of the CPP suggest that a disabled contributor’s child must make a separate application for the DCCB and cannot rely on their parent’s disability application. The Appellant’s situation resembles the facts in Statton v. Canada,^{Footnote 5} a case that the General Division followed. There too, the incapacity provision in subsection 60(8) of the CPP was found to apply only to the person on whose behalf the application is made (the children) and not to the person actually making the application (the parent). This interpretation of the law was subsequently upheld by the Federal Court of Appeal,^{Footnote 6}which found that subsection 60(8) was, in effect, inapplicable to DCCB applications.

[15] I agree with the Appellant that there may be a legislative oversight or gap that effectively penalizes children of claimants who fail to either file early applications or include their children in their application; however, a plain reading of the CPP as written offers no path of redress. The General Division is bound by decisions of the Federal Court of Appeal, and so is the Appeal Division. Both divisions of the Tribunal are constrained by their enabling legislation and lack the authority to render decisions on the basis of equity, compassion or extenuating circumstances.

(d) Did the General Division inappropriately bar the Appellant’s charter argument?

[16] Legislation that is inequitable on its face may give rise to an argument that it contravenes the Charter. On several occasions, the Appellant has mentioned the Charter in his submissions, although that does not necessarily mean he has, in fact, raised a Charter argument or done so in the correct form. In his notice of appeal dated January 11, 2017, the Appellant wrote: “Therefore, this decision by Minister to deny any part of retroactive benefit to the appellant's children is a violation under Canada Pension Plan, Canadian Charter of Rights and Freedoms and Canadian Human Rights Act.” This was his sole reference to any potential constitutional issue, other than a further allegation that the Respondent’s refusals discriminated against children.

[17] In its notice of intention to summarily dismiss dated March 1, 2017, the General Division informed the Appellant that, under paragraph 20(1)(a) of the SST Regulations, mounting a constitutional challenge of a CPP provision required him to file a notice with the Tribunal that (i) set out the provision that was at issue, and (ii) contained any submissions in support of the issue raised. The General Division gave him five weeks to comply, or else the appeal would proceed on a regular basis, and he would not be allowed to raise any constitutional issues.

[18] The Appellant replied with a lengthy submission on March 31, 2017. He repeated many of the arguments he had made previously and had this to say about the Charter:

[26] In addition, Section C (13) [of the application for the DCCB] clearly says “as a disabled contributor & Citizen, I exercise my disability right to support R./S. J., under Canadian Charter to overcome their financial difficulties in Education & Physical Activities”. In knowing these above facts the Minister could have ask the appellant on receiving the application if the applicant incapacitated or not during the declaration, but the Minister did not asked. At the same time, on April 1, 2016 Minister received filled out questionnaire GD11-16 and came to know that the children were in applicant’s custody and control and began to live with the applicant as of January, 2011. In knowing these facts, the Minister could have approved the application as of January, 2011 or Minister could have request for more information as to why the application was delayed or if the appellant is incapacitated or the Minister could have ask the appellant to fill out the incapacity report from the doctor as it did around October, 2016.

[19] Later, the Appellant added: “Supreme Court of Canada has recognized accommodation as a fundamental principle of equality for people with disabilities, and that the failure to accommodate a person with a disability is discriminatory.”

[20] On April 10, 2017, the Respondent urged the General Division to bar the Appellant from pursuing a Charter argument:

Although, lengthy and mainly focused on the issue of the Appellant's incapacity, [the Appellant’s submission] does not set out the constitutional provision at issue or contain support of the issue that is being raised … Furthermore, the Respondent does not believe that the Appellant's statement at paragraph 26 to be a constitutional Charter challenge, rather the Appellant raises the issue of ‘incapacity’ which does not constitute a valid constitutional appeal.

[21] In its decision, the General Division agreed with the Respondent that the Appellant had not complied with paragraph 20(1)(a) of the SST Regulations. In doing so, the General Division committed what I see as an error of fact and law. In my view, the Appellant did what was necessary to carry on with his Charter argument, crude though it may have been.

[22] Subsection 20(1) of the SST Regulations does not impose an unduly high burden on claimants who seek to challenge the constitutionality of some aspect of benefits-conferring legislation. Subparagraph 20(1)(a)(i) requires a party to set out the provision at issue, and while the Appellant did not cite problematic provisions immediately after invoking the Charter, he did repeatedly refer to subsections 60(8) and 74(2) of the CPP throughout his March 31, 2017, letter. The thrust of his submissions as a whole was that the non-applicability of the incapacity provision to the DCCB was unfair and discriminatory toward parents, their children or both. Subparagraph 20(1)(a)(ii) requires a party seeking to mount a Charter challenge to file a notice containing any submissions in support of the issue that is raised. Notably, it does not specify the form or content of those submissions. The Appellant did in fact file a Charter argument in some fashion and, although it may have lacked sophistication, it was not the General Division’s role at that point to assess its quality.

(e) Did the General Division apply the correct test for summary dismissal?

[23] The Appellant was not represented and did not directly address the legal test for summary dismissal. Rather, his submissions expressed his view that the General Division should have considered his Charter argument.

[24] The General Division disposed of the Applicant’s appeal by invoking subsection 53(1) of the DESDA, which allows it to summarily dismiss an appeal if it is satisfied that the appeal has no reasonable chance of success. In paragraph 4 of its decision, and again at paragraph 27, the General Division correctly stated the wording of the relevant provision. However, it is insufficient to simply cite legislation without properly applying it to the facts. The General Division found that, in the absence of a valid Charter argument, the Respondent had correctly interpreted the CPP to mean that retroactive DCCB payments were limited to 11 months. It went on to find that the CPP’s incapacity provision did not create an exception to this rule.

[25] The decision to summarily dismissal an appeal relies on a threshold test. It is not appropriate to consider the case on the merits in the parties’ absence and then find that the appeal cannot succeed. In Fancy v. Canada,^{Footnote 7} the Federal Court of Appeal determined that a reasonable chance of success is akin to an arguable case at law. The Court also considered the question of summary dismissal in the context of its own legislative framework and determined that the threshold for summary dismissal is very high.^{Footnote 8} The question to be asked is whether it is plain and obvious on the record that the appeal is bound to fail. The question is not whether the appeal must be dismissed after considering the facts, the case law and the parties’ arguments. Rather, the question is whether the appeal is destined to fail regardless of the evidence or arguments that might be submitted at a hearing.

[26] My review of the General Division’s reasons leads me to conclude that it erred in law by applying an inappropriately low threshold to summarily dismiss the appeal. The General Division barred the Appellant from a constitutional challenge, but it did so on essentially technical grounds—the Appellant’s purported failure to fulfill the minimal filing requirements of paragraph 20(1)(a). I have already found that the Appellant did in fact meet those requirements, but even if he had not, the Charter argument, whatever its substantive merits, would have continued to exist. The legislation and attendant case law simply require an Appellant to put forward an arguable case; they do not specify what kind of case it must be and certainly do not rule out constitutional challenges that might—or might not—have technical deficiencies.

[27] Some indication that the Appellant’s Charter challenge was at least arguable can be seen in the General Division’s decision itself, which, even as it summarily dismissed the Appellant’s appeal, contemplated the possibility of a successful Charter challenge:

Although it may seem harsh and unreasonable that children are being penalized by the failure of a parent to make an earlier application, the Tribunal (subject to a successful constitutional challenge to the applicable provisions) is bound by the CPP provisions.

[28] In my view, it was not plain and obvious on the record that the Appellant’s Charter challenge was bound to fail, regardless of what evidence or arguments might have been submitted at a hearing.

Conclusion

[29] For the reasons discussed above, I am allowing this appeal on the ground that the General Division erred in law and fact by barring the Appellant’s Charter argument, despite the Appellant having met the requirements of paragraph 20(1)(a) of the SST Regulations. The appeal also succeeds because the General Division did not apply the proper test in summarily dismissing the appeal.

[30] 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.