Other Canada Pension Plan (CPP)

Reasons and decision

Decision

Leave to appeal is refused.

Introduction

[1] This concerns a request for leave to appeal a decision of the General Division of the Social Security Tribunal of Canada (Tribunal) dated December 15, 2016, which dismissed the Applicant’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] On March 6, 2017, within the specified time limitation, the Applicant submitted an application requesting leave to appeal to the Appeal Division.

Overview

[3] On January 1, 2014, the Added Party applied for a DUPE in respect of her relationship with the Applicant. In her application, she indicated that she and the Applicant lived together in a common-law relationship from July 30, 1982, and were married on March 13, 1987. They separated on July 2, 2000.

[4] In correspondence dated September 2, 2014, the Respondent informed the Applicant’s former spouse that, as she had not provided requested documents, her application for a credit split was denied. The Added Party provided additional information to the Respondent on October 24, 2014.

[5] In correspondence dated December 10, 2014, the Respondent informed the Applicant that it had received information concerning the dissolution of his marital relationship. The Applicant was asked to confirm whether he and his former spouse had lived together from July 30, 1982, until July 3, 2000. In a letter dated December 28, 2014, the Applicant wrote that he and his former spouse lived together from September 1986 until July 2000. In an addendum, the Applicant wrote that his former spouse had made a verbal promise to not request a credit split of his pension.

[6] On May 8, 2015, the Respondent advised the Added Party that the requested credit split with the Applicant had been approved. In its reconsideration decision dated July 7, 2015, the Respondent notified the Applicant that it had accepted his former spouse’s application for a CPP credit split for the period from January 1986 to December 1999:

[T]here is no legislative or discretionary authority to adjust eligibility conditions based on economic circumstances or financial hardship. If we receive sufficient information that a separation of legal spouses has taken place after the year 1987 we must proceed with the division of pension credits. Since sufficient information was provided to us in the initial application, we were required to proceed with this request in accordance with the legislation. In regards to your request, we understand that you and your ex-spouse began living together in September 1986, and were married in March 1987, and that you separated in July 2000. It is also our understanding that these dates are not in dispute.

[7] On September 16, 2015, the Applicant appealed this decision to the General Division. On October 3, 2016, the Added Party filed a Hearing Information Form (HIF) with the Tribunal, in which she stated that she would not participate in a hearing either by personal appearance or videoconference. She explained that she could not be in the same room as the Applicant, because he was a long-term drug abuser and had threatened her life after receiving notice of the credit split. The Applicant also filed an HIF, indicating that he declined to participate by videoconference or teleconference. He followed up with a letter denying that he used drugs or alcohol or that he had threatened the Added Party. He demanded an in-person hearing so that he could properly reply to what he described as false and derogatory statements.

[8] On October 28, 2016, the presiding member of the General Division issued a brief interlocutory decision advising the parties that it would be deciding the appeal based on the documentary record. In its decision dated December 15, 2016, the General Division dismissed the Applicant’s appeal, finding that the DUPE was correctly performed and calculated in accordance with subsection 55.1(1) of the CPP. Any verbal promise that the Applicant may have given to forgo a credit split had no effect in law.

[9] The Applicant submitted an application requesting leave to appeal to the Appeal Division on March 6, 2017. Among other arguments, he suggested that the Respondent and the General Division had violated his rights under the Canadian Charter of Rights and Freedoms (Charter).

[10] On September 20, 2017, the Appeal Division wrote to the Applicant, seeking clarification of his application requesting leave to appeal. It asked him whether he intended on pursuing a Charter argument and, if so, what statutory provisions were at issue. As of the decision date, the Applicant had not responded to the Appeal Division’s letter.

[11] I have 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. There are no gaps in the file or need for clarification.
2. The form of hearing respects the requirement under the Social Security Tribunal Regulations (SST 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 subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), 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.

[13] Subsection 58(2) of the DESDA provides that leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.

[14] According to subsection 58(1) of the 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.

[15] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada.^{Footnote 1} The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether, legally, an appeal has a reasonable chance of success: Fancy v. Canada.^{Footnote 2}

[16] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is a first hurdle for an 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 to appeal stage, the applicant does not have to prove the case.

Social Security Tribunal regulations

[17] An applicant 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.

Canada Pension Plan

[18] 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.

[19] 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 the purposes of a DUPE.

[20] 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.

Issue

[21] The Appeal Division must decide whether the appeal has a reasonable chance of success.

Submissions

[22] The Applicant submitted two applications requesting leave to appeal, the first on March 6, 2017, and the second on March 20, 2017. Both were accompanied by handwritten letters detailing various errors on the part of the Respondent and the General Division, respectively, in deciding to effect and uphold the Added Party’s credit split. Each application also included copies of the General Division’s decision, as well as past correspondence from the Respondent, which the Applicant had marked with annotations. I have categorized the Applicant’s submissions as follows:

1. He is disgusted with the General Division’s decision and disenchanted with the appeal process.
2. He alleges that the Respondent did not have all the facts when it awarded the DUPE to the Added Party. It was not aware that the Added Party had promised to leave his pension alone in return for all proceeds from the sale of their house and the chattels in it.
3. He suggests that the Added Party supported her DUPE application with falsified documents and defamatory statements. The Respondent divided his pension without first forwarding these documents to his attention and giving him an opportunity to respond.
4. He requested a hearing by personal appearance so that he could counter the Added Party’s lies more effectively. In rendering its decision based on the documentary record, he was denied his right to be heard.
5. He believes his Charter rights have been violated by the false allegations against him.

Analysis

DUPE

[23] The Applicant accused the Respondent of relying on the Added Party’s allegedly false representations and ignoring her promise not to seek a credit split.

[24] I do not see an arguable case on this ground of appeal. First, it mirrors submissions that the Applicant previously made to the General Division. The Appeal Division has no mandate under the DESDA to rehear evidence on its merits and is permitted to consider only those grounds that fall under the categories described in subsection 58(1).

[25] Second, the General Division’s application of the law to the facts was, in my view, correct. 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. The general rule, under subsection 55.2(2) of the CPP, is that a spousal agreement is not binding on the Respondent unless the exception set out under subsection 55.2(3) applies—that is, where 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 this case, the evidence indicates that there was no written agreement to exclude the division of CPP benefits. In any case, it would appear that, at the time of their separation, the Applicant and his former wife were governed by the laws of Ontario, which does not permit parties to waive the provisions of subsection 55.2(2).

[26] Based on the facts that were before it, I do not see an arguable case that the General Division erred in condoning the DUPE. The Applicant clearly feels aggrieved, but the General Division had no choice but to follow the letter of the law. Both divisions of the Tribunal can exercise such jurisdiction only as is granted by their enabling statute, and neither is empowered to provide any form of equitable relief. Support for this position may be found in Canada (Minister of Human Resources Development) v. Tucker,^{Footnote 3} among many other cases, which have held that an administrative tribunal is not a court but a statutory decision-maker.

Form of hearing

[27] Although he did not frame it as such, the Applicant implicitly argues that the General Division acted in violation of a principle of natural justice by rendering its decision on the basis of the existing documentary record. He submits that his right to be heard was compromised by the General Division’s decision not to hold an oral hearing, preferably one that called for the appearance of the parties in person.

[28] I see no arguable case on this ground of appeal. Section 21 of the SST Regulations states that the General Division may hold a hearing by one of several methods. Use of the word “may” in the absence of qualifiers or conditions in the text suggests that the General Division has discretion to make this decision. This is not to suggest that the General Division’s discretion to make such a decision can be completely divorced from reason. However, the Federal Court of Appeal has confirmed that setting aside a discretionary order requires an appellant to prove that the decision-maker committed a “palpable and overriding error,”^{Footnote 4} and I see nothing like that here.

[29] The parties submitted HIFs that put forward diametrically opposed positions on the question of what form the hearing should take. In a letter dated October 28, 2016, the General Division advised the parties that, having reviewed their correspondence, it would be proceeding on the record. In doing so, the General Division exercised its discretion to select what it believed was the most appropriate form of hearing and advised the parties of its choice. The Applicant suggests that he was unfairly denied an opportunity to question the Added Party about her purported “lies,” but I doubt that the kind of cross-examination envisaged by the Applicant would elicit evidence of any great relevance, given the unambiguous result demanded by the law (see above). Moreover, the Applicant was given ample opportunity in which to make written submissions, and the record indicates that he took full advantage of it, filing numerous letters challenging the Added Party’s credibility and the Respondent’s supposed complicity in unjustly denying him a portion of his pension.

[30] While the General Division has wide discretion to rule on this matter, I am satisfied that its decision to hear the appeal on the record was not made on a whim, but for reasons explained, albeit cursorily, in its letter of October 28, 2016. In Baker v. Canada,^{Footnote 5} the Supreme Court of Canada held that the concept of procedural fairness is variable and is to be assessed in the specific context of each case. Baker listed a number of factors that may be considered to determine what the duty of fairness requires in a particular case, including the importance of the decision to the individual affected, the legitimate expectations of the person challenging the decision, and the choices of procedure made by the agency itself, particularly when the legislation gives the decision-maker the ability to choose its own procedure.

[31] I accept that the issues in this matter are important to the Applicant, but I also place great weight on the nature of the statutory scheme that governs the General Division. The Social Security Tribunal was designed to provide for the most expeditious and cost-effective resolution of disputes before it. To accomplish this, Parliament enacted legislation that gave the General Division the discretion to determine how hearings are to be conducted, whether in person, by videoconference or in writing, etc. The discretion to decide how each case will be heard should not be unduly fettered.

Charter argument

[32] The Applicant did not specify what legislative provisions he believes violated his rights under the Charter. As such, he failed to comply with the formal requirements set out in paragraph 20(1)(a) of the SST Regulations and is barred from raising a constitutional challenge before the Appeal Division.

[33] In any case, the Applicant still needed to satisfy me that this ground of appeal had a reasonable chance of success, and simply alleging a violation of the Charter cannot be equated with an arguable case. In this case, the Applicant failed to identify what rights were breached and how the General Division breached them.

Conclusion

[34] For the reasons set out above, the application for leave to appeal is therefore refused.