Other Canada Pension Plan (CPP)

Decision and Reasons

Decision

[1] Leave to appeal is granted.

Overview

[2] This appeal is about what it means for a case to be “arguable.”

[3] The Applicant, D. T., applied for a Canada Pension Plan (CPP) survivor’s pension in June 2016, shortly after the death of L. D., a contributor to the Canada Pension Plan with whom she claimed to have been in a common-law relationship.

[4] In her application and in a subsequent statutory declaration,the Applicant reported that she and the deceased contributor were not married but that she began living with him in April 1990 and eventually had two children with him—a son born in 1994 and a daughter born in 1999. She said that L. D.’s excessive drinking eventually tore their family apart and they ceased to cohabit in November 2015. While intoxicated, he assaulted and threatened to kill her, and they were under a no-contact restraining order at the time of his death. The Applicant claimed that she and L. D. planned to reconcile once his criminal charges were resolved and he received treatment for alcohol abuse. She provided various items of evidence to support her claim that she and L. D. were in a common-law relationship at the time of his death.

[5] The Respondent, the Minister of Employment and Social Development (Minister), refused to approve the application because it had determined that the Applicant was not a survivor, as defined by the CPP. The Applicant asked for reconsideration, but the Minister upheld its position in a letter dated February 16, 2017.

[6] On July 10, 2017, beyond the 90-day limit set out in the Department of Employment and Social Development Act (DESDA), the Applicant submitted an appeal to the General Division of the Social Security Tribunal.

[7] On November 27, 2017, the General Division issued a decision in which it determined that the Applicant’s appeal was late. It refused to permit an extension of time after finding that she had failed to present an arguable case on appeal.

[8] The Applicant was previously without representation. On February 23, 2018, her newly retained lawyer submitted an application requesting leave to appeal from the Appeal Division. In it, he alleged, among other things, that the General Division had applied an inappropriately high standard in refusing to hear his client’s appeal and that it assessed the merits of the matter instead of considering whether an arguable case existed.

[9] Having reviewed the General Division’s decision against the underlying record, I have concluded that the Applicant’s appeal has a reasonable chance of success.

Issues

[10] According to s. 58 of the DESDA, there are only three grounds of appeal to the Appeal Division: The General Division (i) failed to observe a principle of natural justice; (ii) erred in law; or (iii) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. An appeal may be brought only if the Appeal Division first grants leave to appeal,^{Footnote 1} but the Appeal Division must first be satisfied that it has a reasonable chance of success.^{Footnote 2} The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.^{Footnote 3}

[11] I must determine whether the Applicant has an arguable case based on the following questions:

Analysis

Issue 1: Was the Applicant’s appeal to the General Division filed late?

[12] The General Division assumed that the Minister’s reconsideration decision was communicated to the Applicant within 10 days of issuance—by February 27, 2017. Accordingly, it found that the Applicant had until May 29, 2017 to file an appeal in accordance with the 90-day deadline established in s. 52(1)(b) of the DESDA.

[13] Since the record shows that the Applicant did not file a complete notice of appeal until July 10, 2017—six weeks after the deadline—I see no indication that the General Division committed a factual error in determining that her appeal was late.

Issue 2: Did the General Division invoke the correct tests?

[14] Under s. 52(2) of the DESDA, the General Division has the discretion to allow further time within which to bring an appeal. In deciding whether to extend the deadline for the Applicant, the General Division appropriately weighed the four factors set out in Canada v. Gattellaro:^{Footnote 4}

1. (a) Whether the appellant demonstrated a continuing intention to pursue the appeal;
2. (b) Whether there was a reasonable explanation for the delay;
3. (c) Whether there was prejudice to the other party in allowing the extension; and
4. (d) Whether the matter disclosed an arguable case.

[15] The General Division also correctly cited another leading case on this subject, Canada v. Larkman,^{Footnote 5} which requires decision-makers to ensure, when deciding whether to grant an extension, that the interests of justice be served.

[16] Although the General Division determined that the first three Gattellaro factors favoured the Applicant, it ultimately concluded that her failure to make an arguable case outweighed other considerations and militated against the appeal going forward. In my view, this reasoning is consistent with the law. It is well established that, while all four Gattellaro factors must be considered, they do not necessarily have to be given equal weight. In this case, it was within the General Division’s discretion to determine that a single factor overwhelmed the others.

Issue 3: Did the General Division apply the correct standard for an “arguable case?”

[17] That said, I see a reasonable chance of success for the Applicant’s submission that the General Division misapplied the fourth Gattellaro factor when it found that she had failed to advance an “arguable case.” As noted, this phrase is also seen in the jurisprudence surrounding the Appeal Division’s right to refuse leave, as well as the General Division’s powers of summary dismissal. In both cases, an appeal may be halted if there is no reasonable chance of success. This has been consistently held to be a fairly low threshold to meet, permitting dismissal only if there is so little merit to the appeal that it is plain and obvious that it is certain to fail. On this issue, I will defer to my colleague on the Appeal Division, Janet Lew, who undertook a survey^{Footnote 6} of the relevant case law on this subject and concluded:

It is apparent from this line of authorities that when determining the appropriateness of the summary dismissal procedure and deciding whether an appeal has a reasonable chance of success, a decision‑maker must determine whether there is a “triable issue” and whether there is any merit to the claim. This requires one to distinguish an “utterly hopeless” from a “weak” case. In the latter case, the evidence in support of a position might be flimsy, but there is at least some factual or evidentiary support for it, whereas in an “utterly hopeless” case, there is no or an inadequate factual foundation to support that position, and the outcome is “manifestly clear.” The weak case would not be appropriate for a summary disposition, as it necessarily involves assessing the merits of the case and examining, i.e. analyzing and assigning weight, to that evidence…

[18] If the standard for an arguable case is “weak,” as opposed to “utterly hopeless,” then it seems to me that the Applicant’s appeal to the General Division falls into the former category, rather than the latter. The CPP provides for a survivor’s pension to be paid to the survivor of a deceased contributor.^{Footnote 7} A “survivor” can include a person who was the common-law partner of the contributor at the time of the contributor’s death.^{Footnote 8} A “common-law partner” is defined as a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having done so for a continuous period of at least one year before the contributor’s death.^{Footnote 9}

[19] It is true that the Applicant admitted that she and L. D. had not lived together for more than seven months at the time of his death, but cohabitation is only one of many factors that a decision-maker must take into account when determining the existence of a common-law relationship, among them conjugal, familial, social and economic ties such as financial interdependence, mutual dependency, and shared assets and responsibilities. The leading case on the subject is Hodge v. Canada,^{Footnote 10} in which the Supreme Court of Canada held that cohabitation is not synonymous with co-residence. A key element of the test is the intention of the parties, which may be deduced from their words and actions. Since Hodge, a long line of cases has held that there is no exhaustive definition for a common-law relationship and that each case must be decided according to its own particular facts.

[20] The question at this stage is not whether the Applicant was in a common-law relationship with the deceased contributor, but whether she had raised at least an arguable case before the General Division that she was. My preliminary review indicates that, while Applicant’s case may have been weak, it was not utterly hopeless. She presented evidence that she and L. D. lived under the same roof for more than 25 years and produced two children. While they were living apart at the time of L. D.’s death, she declared that they had a mutual intention to reconcile once he had dealt with his problems. She submitted statements suggesting that they may have continued to share some accounts after their “temporary” separation.

[21] A further indication that the Applicant mounted an arguable case may be seen in the effort that the General Division expended to refute it. A refusal to extend time for lack of an arguable case should be akin to a summary dismissal, yet the General Division devoted three pages to an analysis of the Applicant’s evidence in the context of the applicable law. This by itself suggests that the General Division was faced with something other than an open-and-shut case meriting quick disposal.

[22] There is no question that the General Division considered the Gattellaro factors, but that consideration alone is insufficient to satisfy the Larkman mandate to serve the interests of justice. It would be unfortunate if the Applicant were denied a hearing on her survivorship claim simply because she was a few weeks late in fulfilling what, in the end, is a mere technical requirement in the appeal process.

Conclusion

[23] I am granting leave to appeal on all grounds put forward by the Applicant. Should the parties choose to make further submissions, they are free to offer their views on whether a further hearing is required and, if so, what format is appropriate.

[24] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.