Other Canada Pension Plan (CPP)

Decision and Reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] This appeal is about the extent to which the lawpermits retroactive payment of the Canada Pension Plan (CPP) children’s benefit.

[3] The Applicant, E. B., was married to the late R. B., a contributor to the CPP. Together, they had two children. The couple separated in 2001, and R. B. later began a relationship with C. B., who was also a CPP contributor. In January 2006, R. B. and C. B. died within one day of each other.

[4] In February 2006, the Applicant applied for a CPP survivor’s pension and children’s benefit.^{Footnote 1} He named R. B. as a deceased contributor who had care and custody of his children. At that time, the Applicant also submitted a statutory declaration disclosing that, at the time of his wife’s death, he and R. B. were separated, and she was living with C. B. in a common-law relationship. The Respondent, the Minister of Employment and Social Development (Minister), approved the application.

[5] Eight years later, the Minister initiated a review of the Applicant’s entitlements. Following an investigation, it determined that the Applicant had never qualified for the survivor’s pension because R. B. was in a conjugal relationship with C. B. at the time of her death. In September 2014, the Minister terminated the Applicant’s survivor’s pension and ordered him to repay the more than $32,000 that he had received between February 2006 and May 2014.^{Footnote 2}

[6] At this point, the Applicant submitted a second application for the CPP survivor’s pension and children’s benefit. This time, he named C. B. as a deceased contributor who had care and custody of his children. The Minister approved the application and commenced payment as of October 2013, which it said was the maximum period of retroactivity permitted under the law. The Applicant then requested reconsideration of the decision to limit the benefit, alleging that he had been the victim of poor advice from a Service Canada agent when he had first inquired about his potential entitlements. He argued that it was only fair that the children’s benefit granted in respect of C. B. should be backdated to February 2006—the month in which he had submitted his first application.

[7] The Minister affirmed its initial decision, and the Applicant then brought an appeal to the General Division of the Social Security Tribunal. In a decision dated January 22, 2018, the General Division dismissed the appeal, finding that his 2006 application was in respect of R. B. only and therefore could not be used to calculate the effective date of the children’s benefit in respect of C. B..

[8] On April 20, 2018, the Applicant submitted an application for leave to appeal to the Tribunal’s Appeal Division. He made the following points:

• The General Division refused to backdate the children’s benefit in respect of the second application because it found that it did “not have the authority to amend the provisions related to the effective date of the orphan’s benefits.” If the General Division does not have the authority, then who does? Under s. 66(4) of the CPP, the Minister can take appropriate remedial action where an applicant has been unjustly denied a benefit as a result of erroneous advice or administrative error.
• This case is a clear example of erroneous advice given by the Minister’s agents. Had he been provided with correct information in 2006, he would have applied for the children’s benefit in respect of not only his wife, but also C. B.. At the time, he told Service Canada that his wife and C. B. were living together in a romantic relationship with his children. None of the agents to whom he spoke were aware that he might qualify for the children’s benefit in respect of both of the deceased. This clearly reflects a lack of training for staff serving the public.

[9] Having reviewed the General Division’s decision against the underlying record, I must conclude that the Applicant’s appeal has no reasonable chance of success.

Issues

[10] My task is to determine whether any of the Applicant’s submissions fall into the categories specified in s. 58(1) of the Department of Employment and Social Development Act (DESDA) and, if so, whether there is an arguable case for any of them. The issues, as I see them, are as follows:

Issue 1: Did the General Division err in determining that the Applicant’s first application for the children’s benefit had no bearing on the start date of the benefit received pursuant to his second application?

Issue 2: Did the General Division err in failing to consider whether the Minister’s refusal to extend retroactive payment was fair?

Issue 3: Did the General Division err in failing to consider the remedy available under s. 66(4) of the CPP where a claimant has been subject to erroneous advice or administrative error?

Analysis

[11] Under s. 58(1) 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. An appeal may be brought only if the Appeal Division first grants leave to appeal.^{Footnote 3} Leave to appeal will be granted if the Appeal Division is satisfied that the appeal has a reasonable chance of success.^{Footnote 4} As the Federal Court of Appeal has determined, a reasonable chance of success is akin to an arguable case at law.^{Footnote 5}

Issue 1: Did the General Division err in determining that the Applicant’s first application for the children’s benefit had no bearing on the start date of the benefit received pursuant to his second application?

[12] As much as I may sympathize with the Applicant’s story, my hands are tied by the CPP and the laws that govern the Tribunal.

[13] It must be said at the outset that the Applicant’s submissions mirror arguments that were already presented to the General Division. They amount to a recapitulation of his claim that he was misdirected by Service Canada staff in 2006. However, under the narrow parameters of s. 58(1) of the DESDA, the Appeal Division has no mandate to reassess evidence or re-hear claims for CPP benefits on their merits. I am permitted only to determine whether any of the reasons cited fall within the enumerated grounds of appeal and whether any of them have a reasonable chance of success.

[14] The General Division began its analysis by citing s. 60(1) of the CPP, which states that “[n]o benefit is payable to any person […] unless an application therefor has been made....” In doing so, the General Division aptly highlighted a key component of the CPP—that entitlement to benefits is driven, in part, by the act of making an application.

[15] The General Division then correctly noted that s. 74(2)(b) of the CPP limits payment of the children’s benefit to no earlier than “the twelfth month preceding the month following the month in which the application was received.” The Applicant submitted the second children’s benefit applicationinSeptember 2014. As a result, he was statute-barred from receiving more than 11 months of retroactive payments following approval of his application.

[16] I do not see an arguable case that the General Division erred in its application of the governing statute.

Issue 2: Did the General Division err in failing to consider whether the Minister’s refusal to extend retroactive payment was fair?

[17] The Applicant implies that the General Division failed to consider the fact that he went to a Service Canada office in 2006 with the intention of applying for whatever benefits were available to him under the law. My review of its decision indicates that the General Division was aware of this fact but determined that it had no bearing on the question of whether the children’s benefit from the second application could be paid earlier than October 2013. The issue then became whether the General Division had the discretion to order what it considered to be a fair result. In the end, it decided that it did not, and I see no arguable case that it erred in arriving at this conclusion.

[18] In this case, the General Division confirmed that the Minister had correctly followed the CPP in determining the Applicant’s entitlement to the children’s benefit. It then determined that it lacked the jurisdiction to consider “extenuating circumstances,” such as the incompetence of Service Canada staff.

[19] I see no arguable case that the General Division erred in arriving at this conclusion. As administrative tribunals, both the General Division and the Appeal Division are limited to the powers conferred by their enabling legislation—in this case, the DESDA. We lack the authority to simply ignore the letter of the law and order a solution that we think is fair. Such power, known as “equity,” has traditionally been reserved to the courts, although even they typically exercise it only if there is no adequate remedy at law. Canada v. Tucker,^{Footnote 6}among many other cases, has confirmed that an administrative tribunal is not a court but a statutory decision-maker and, therefore, is not empowered to provide any form of equitable relief.

Issue 3: Did the General Division err in failing to consider the remedy available under s. 66(4) of the CPP where a claimant has been subject to erroneous advice or administrative error?

[20] The General Division considered the Applicant’s argument that Service Canada should have addressed all possible benefits to which he or his children may have been entitled when it processed his application in 2006. In the end, the General Division appears to have found no evidence that the Minister’s agents had given him poor advice. Yet even if they had, there was nothing, in my view, that the General Division could have done to remedy it.

[21] The Applicant suggests that the General Division overlooked s. 66(4) of the CPP, but a plain reading of that provision makes it clear that the remedies contained in it are available only to the Minister in its discretion. It says, “Where the Minister is satisfied that, as a result of erroneous advice or administrative error in the administration of this Act, any person has been denied a benefit, or portion thereof, to which that person would have been entitled […], the Minister shall take such remedial action as the Minister considers appropriate….”

[22] Parliament’s use of the word “satisfied” suggests that use of this power is left to the Minister’s choice or judgment. The Minister has the discretion to place a person in the position that they would have been in had the erroneous advice not been given; however, in this case, the Minister has not admitted to any error and has thus chosen not to exercise its discretion to provide a remedy. Case law, led by Tucker^{Footnote 7} and Pincombe v. Canada,^{Footnote 8} has held that neither the General Division nor the Appeal Division has the jurisdiction to review a discretionary decision of the Minister.

[23] I do not see an arguable case for this ground of appeal.

Conclusion

[24] Since the Applicant has not identified any grounds of appeal under s. 58(1) of the DESDA that would have a reasonable chance of success on appeal, the application for leave is refused.