Other Canada Pension Plan (CPP)

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] P. G. (Claimant) applied for a survivor’s pension under the Canada Pension Plan (CPP) in 2014. She argued that she was entitled to the survivor’s pension because she was still married to R. G. (Deceased Contributor) when he died in October 2014, although they had been separated for many years. The Minister approved the payment of the pension to the Claimant in January 2015, and the payments started effective November 1, 2014.

[3] The Minister received an application for the survivor’s pension from J. M. (Added Party) in September 2016. The Added Party argued she was entitled to the survivor’s pension because she stated she was in a common-law relationship with the Deceased Contributor from 1997 until he died. The Minister approved the Added Party’s application for the survivor’s pension in December 2016 and then explained to the Claimant she was disqualified from receiving the survivor’s pension. The Claimant argued that the Added Party and the Deceased Contributor did not live together and that the Deceased Contributor was living in an apartment he rented in X—not the Added Party’s home in X—when he died. The Minister upheld its decision to disqualify the Claimant on reconsideration.

[4] The Claimant appealed to this Tribunal, and the General Division dismissed her appeal on August 16, 2018. The Claimant filed an application for leave to appeal the General Division’s decision on November 13, 2018 and the Appeal Division granted leave to appeal. The Appeal Division must determine whether it is more likely than not that the General Division made an error under the Department of Employment and Social Development Act (DESDA).

[5] The Claimant has not proven on a balance of probabilities that the General Division made an error of fact under the DESDA. The appeal is dismissed.

Issue

[6] Did the General Division make an error of fact by reaching its conclusions without having regard for two pieces of evidence provided by the Claimant?

Analysis

Appeal Division’s review of the General Division’s decision

[7] The Appeal Division does not provide an opportunity for the parties to re-argue their case in full at a new hearing. Instead, the Appeal Division reviews the General Division’s decision to determine whether it contains errors. That review is based on the wording of the DESDA, which sets out the grounds of appeal for cases at the Appeal Division.^{Footnote 1}

[8] The DESDA says that a factual error occurs when the General Division bases 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.^{Footnote 2} For an appeal to succeed at the Appeal Division, the legislation requires that the finding of fact at issue from the General Division’s decision be material (“based its decision on”), incorrect (“erroneous”), and made in a perverse or capricious manner or without regard for the evidence.

Survivor’s pension

[9] To be eligible for a survivor’s benefit under the CPP, a claimant must be the survivor of a deceased contributor.^{Footnote 3} In this context, a survivor is a person who was living in a common-law relationship with the deceased contributor for at least 12 consecutive months before death or was legally married to the deceased at the time of death, if the deceased contributor was not in a common-law relationship at the time of death.^{Footnote 4} In this context, a common-law partner means “a person who is cohabiting with the contributor in a conjugal relationship” at the time of the contributor’s death, “having so cohabited with the contributor for a continuous period of at least one year.”^{Footnote 5}

Did the General Division make an error of fact by reaching its conclusions without having regard for two pieces of evidence provided by the Claimant?

[10] The Claimant has not established that it is more likely than not that the General Division ignored two particular pieces of evidence.

[11] The General Division does not have to refer to every piece of evidence that is before it.^{Footnote 6} We presume that the General Division considered all of the evidence unless the importance of that evidence means that it needed to be discussed.^{Footnote 7}

[12] First, the Claimant argues that the General Division ignored the email she provided from the Deceased Contributor to his landlord at an apartment he rented in X.^{Footnote 8} The parties all agree that the Deceased Contributor rented this apartment in X for many years. The Claimant argues that the Deceased Contributor did not actually live with the Added Party at the time of his death, and she relies on a letter the Deceased Contributor wrote to his landlord that contains phrases like “over the nearly 20 years which I’ve lived at this location” and “should I one day decide to vacate my apartment,” which could suggest that the Deceased Contributor lived in the apartment he rented in X and not with the Added Party.^{Footnote 9}

[13] The Minister argues that the General Division member expressly listed this email as part of the evidence in its decision, but that the email was not important enough that the General Division needed to discuss it in the analysis. The Minister notes that the parties all agreed that the Deceased Contributor rented an apartment in X for many years. The General Division found that the Deceased Contributor shared a common residence with the Added Party based on a joint tenancy agreement, the Added Party’s testimony, and the testimony of the Added Party’s son and ex-husband.

[14] The Minister argues:

The content of this email was of limited probative value, given that the Deceased Contributor’s maintenance of a separate residence was not in dispute. The fact that the General Division did not expressly discuss the content of the email in its reasons does not mean it ignored the evidence. It weighed all of the [Claimant’s] evidence that the Deceased Contributor maintained a separate residence, including the email, but ultimately determined that it did not negate the evidence of a common-law relationship. The email did not contradict the evidence relied upon by the General Division in finding that the Deceased Contributor lived with the Added Party and so it was not required to specifically discuss the contents of the email in its decision. The [Claimant], in alleging that the General Division ignored the email, is essentially asking the Appeal Division to reweigh this evidence and come to a different conclusion.^{Footnote 10}

[15] I find that the Claimant has not established on a balance of probabilities that the General Division made an error of law in relation to this evidence. The General Division listed this letter as a piece of evidence it considered in reaching the decision. The General Division did not expressly discuss the contents of the email, but I accept the Minister’s arguments about why the email was of limited importance and did not need to be discussed in the analysis.

[16] The General Division decided that the Deceased Contributor had an address apart from the Added Party. The General Division decided that the Added Party lived in a common-law relationship with the Deceased Contributor and that he merely maintained his address in X for several reasons as described by the Added Party, including wanting to “help his friend financially by allowing him to stay in a lower-rent apartment; utilizing the space as storage; and not wanting to change his address for some banking and tax purposes.”^{Footnote 11}

[17] The General Division did not discuss the contents of the email, including the reference to “living” at the X address and the reference to whether he might “vacate” the address in future. The reference to “living” at the address in this email was not important enough that the General Division needed to discuss it in light of the other evidence the General Division relied on, including the testimony the General Division accepted from the Added Party and her witnesses about the Deceased Contributor living in a conjugal relationship with the Added Party. The General Division did not make an error of fact by ignoring the email to the landlord: it just did not discuss it in light of the totality of the evidence showing that the Deceased Contributor was in a conjugal relationship with her for a continuous period of at least one year at the time of his death.

[18] Second, the Claimant argues that the General Division ignored a letter from the Added Party to the Deceased Contributor.^{Footnote 12} More specifically, the Claimant argues that the General Division ignored the envelope she produced for the letter and that the year 2013 was written on that envelope. It seems the Claimant argues that this means the letter was also written in 2013, which, if that were true, would make the letter more relevant to the question the General Division had to decide about the relationship between the Deceased Contributor and the Added Party in the 12 months before his death.

[19] The General Division listed the letter in the evidence it considered from the Claimant.^{Footnote 13} In its analysis, the General Division expressly considered the letter from the Added Party to the Deceased Contributor, determining that while the letter was not dated, it referenced relationship issues 14 years after they met.^{Footnote 14} The General Division found that the letter was genuine but irrelevant because it was likely dated sometime in 2011 and therefore did not help the member determine whether the Added Party was a common-law spouse in the 12 months before the Deceased Contributor’s death in October 2014.^{Footnote 15}

[20] The Claimant argues that in dating the letter to sometime in 2011, the General Division ignored the date of 2013 on the envelope.^{Footnote 16}

[21] The Minister argues that:

The [Claimant’s] claim that the letter was in an envelope dated 2013 is not probative evidence of the date of the letter. The only evidence of the date of the letter were the references in the letter itself to relationship issues which occurred 14 years after the couple met. In her submissions to the Appeal Division and before the General Division, the [Claimant] does not claim to have knowledge that the letter was written in 2013. Further, at the hearing before the General Division, the [Claimant] did not testify that she knew the date of the letter. Rather she suggested that the letter could be dated using the references to relationship issues 14 years after the couple met.

[…]The date on the envelope is not contradictory evidence that needed to be addressed by the General Division, given that there was evidence in the letter itself as to its date, which was not contested by [Claimant].^{Footnote 17}

[22] I find that the Claimant has not established on a balance of probabilities that the General Division made an error of fact. The General Division does not need to refer to every piece of evidence in its decision. I accept the arguments that the Minister has made: the importance of the date on the envelope is limited, given that the letter itself references issues in the relationship that occurred 14 years after the Deceased Contributor and the Added Party met. In light of the evidence in the letter itself and the fact that the Claimant did not take issue with the reference in the letter to issues 14 years after the couple met, the date on the envelope was not so important that it needed to be discussed.

Conclusion

[23] The appeal is dismissed.