Other Canada Pension Plan (CPP)

Decision and Reasons

Decision

[1] The application for leave to appeal is refused.

Overview

[2] G. P. (Claimant) turned 60 on October 13, 2018. She applied for a Canada Pension Plan (CPP) retirement pension on November 6, 2018. She says that she was delayed in applying because her CPP contributions from 1985 were missing.^{Footnote 1} Also, there was a postal strike in the fall of 2018.

[3] The Minister approved the Claimant’s application for a retirement pension. The Minister decided that the payment started December 2018, the month after the month Minister received the application. The Claimant asked that the payments start in October 2018, the month she turned 60. The Minister denied that request on reconsideration.

[4] The Claimant appealed the Minister’s decision to this Tribunal. On June 5, 2019, the General Division dismissed the Claimant’s appeal.

[5] The Appeal Division must decide whether there is an arguable case that the General Division made an error under the Department of Employment and Social Development Act (DESDA) that justifies granting permission (leave) to appeal.

[6] I find that there is no arguable case for an error under the DESDA. The Claimant’s application for leave to appeal is refused.

Issue

[7] Is there an arguable case that the General Division failed to provide the Claimant a fair process?

Analysis

[8] The Appeal Division grants leave to appeal General Division decisions only where there is an arguable case that the General Division has made an error. The only errors that allow the Appeal Division to grant leave to appeal are those that are listed in the DESDA. These errors are referred to as the “grounds of appeal.”^{Footnote 2}

[9] The General Division makes an error when it fails to observe a principle of natural justice, or otherwise fails to exercise or acts beyond its jurisdiction.^{Footnote 3} Failing to observe a principle of natural justice is about failing to provide a fair process. What fairness requires depends on the context of each case. The Supreme Court of Canada set out a list of factors to consider when deciding whether a process was fair.^{Footnote 4} At the heart of this analysis is whether, considering all the circumstances, the people who are affected by the process had a meaningful opportunity to present their case fully and fairly.

[10] At the leave to appeal stage, a claimant must show that the appeal has a reasonable chance of success.^{Footnote 5} To meet this requirement, the claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 6}

Is there an arguable case that the General Division failed to provide the Claimant with a fair process?  

[11] The General Division member provided a fair process. The General Division member could not rely on the reasons the Claimant was late in applying for the retirement pension as a reason to select a different payment start date.

[12] The General Division decision described the law that applies to the calculation of the start date for a retirement pension like this:^{Footnote 7}

I cannot grant the Claimant’s request to change the commencement date of her retirement pension. The Claimant’s application was processed under s. 67 (3.1) which applies to retirement pensions that commence on or after January 2012.4 The pension is payable for each month starting with the latest of the situations set out in 67 (3.1), rather than a choice between the four situations. In this case, paragraph (a) and (d) are October 2018. Paragraph (b) is December 2018. Paragraph (c) does not apply as the Claimant is not yet 65 years of age. In this case, the latest date is the month following the month the application was received, December 2018. The CPP does not allow for further retroactive benefits for individuals who have not reached age 65.5 I have no authority to override clear statutory provisions on the basis of fairness, compassion, or extenuating circumstances but must follow the provisions of the CPP.6

[13] The Claimant argues that the General Division failed to provide her with a fair process by failing to consider the reasons she applied for the CPP retirement pension late. The Claimant explains that the reasons that she was late were beyond her control. She states that if the General Division member had considered her evidence about the delay, she would have started the payments beginning in the month that the Claimant turned 60, not the month after she applied.

[14] The Claimant has not shown an arguable case for an error by the General Division. The General Division member did make note of the Claimant’s explanation for the delay in her decision.^{Footnote 8} But the General Division member must apply the CPP as it is written. The CPP requires the General Division to choose the payment date from the available list based on which date is latest. The requirement to provide for a fair process does not allow the General Division to select a different date based on the idea that the reasons the Claimant applied late were out of her control.

[15] It is not the Appeal Division’s role in deciding leave to appeal to hear the case over again, or to reweigh the evidence.^{Footnote 9} The claimant provides all the evidence and arguments required under the DESDA.^{Footnote 10} However, the Appeal Division should go beyond what the Federal Court has called a “mechanistic” review of the grounds of appeal.^{Footnote 11}

[16] Accordingly, I have reviewed the documentary record. I am satisfied that the General Division did not overlook or misconstrue the evidence in the Claimant’s case. The Claimant would have liked her retirement pension payments to start sooner, but the General Division considered the evidence and applied the law here to decide when the payments start according to the CPP.  

Conclusion

[17] The application for leave to appeal is refused.