Other Canada Pension Plan (CPP)

Decision and Reasons

Decision

[1] I am allowing the appeal. The General Division failed to provide a fair process. I am sending the matter back to the General Division for reconsideration. These reasons explain why.

Overview

[2] S. F. (deceased) married T. F. (Added Party) in 1993 and separated from her in 2006. They never divorced. S. F. died in a motorcycle accident in May 2017.

[3] D. P. (Appellant) claimed to be the deceased’s common law spouse when he died. Initially, the Appellant received a survivor’s pension under the Canada Pension Plan (CPP).

[4] The Added Party applied for the CPP survivor’s pension in September 2017. However, the Minister denied her application initially and on reconsideration. The Minister denied the application because it had already decided to award the survivor’s pension to the Appellant.

[5] The Added Party appealed the Minister’s decision to this Tribunal’s General Division. The General Division member heard the appeal over two full days and two half days from September 5, 2019, to February 13, 2020. The Added Party was successful at the General Division.

[6] I need to decide whether the General Division made an error under the Department of Employment and Social Development Act (DESDA). If the General Division did make an error, I need to decide how to remedy (that is, fix) it.

[7] The General Division failed to provide a fair process to the Appellant. Given that the hearing was unfair, I will return the matter to the General Division for reconsideration. At that stage, the parties will be able to make arguments about how the General Division handles the reconsideration.

Issue

[8] Did the General Division fail to provide a fair process to the Appellant because of the way it handled documents from the Claimant?

Analysis

Reviewing General Division decisions

[9] The Appeal Division does not give parties a chance to reargue their case in full at a new hearing. Instead, the Appeal Division reviews the General Division’s decision to decide whether it made an error. The DESDA sets out the errors I can consider, or “grounds of appeal.”^{Footnote 1} These errors are that the General Division made an error of fact, law, or jurisdiction or failed to provide a fair process.

Fair process errors

[10] The DESDA says that it is an error when the General Division fails to observe the principles of natural justice.^{Footnote 2} The principles of natural justice are about the fairness of the process. What fairness requires in each case depends on several factors.^{Footnote 3}

[11] Fairness includes the right to be heard and the right to an impartial hearing.^{Footnote 4}

[12] The right to be heard is about giving people the chance to make arguments on every fact or factor likely to affect the decision.^{Footnote 5} It also includes the right to know and answer the case presented by the other parties.^{Footnote 6} In other words, a person must have all the evidence the other parties intend to rely on and enough time to prepare and defend the case.^{Footnote 7}

Did the General Division fail to provide a fair process?

[13] The Appellant’s right to a fair process was negatively impacted by the way the General Division handled documents from the Added Party. The Appellant focuses on the documents the General Division numbered GD12, so that is how I will refer to them in this decision.

[14] Between July 10 and July 15, 2019, the Added Party submitted GD12 electronically, which was over 1,000 pages long. GD12 is mostly electronic messages between the deceased and the Added Party.

[15] The Appellant’s lawyer wrote to the Tribunal on July 19, 2019, saying that the Appellant objected to the Tribunal accepting any documents after July 7, 2019. The Tribunal did not answer this objection before the hearing. The first day of hearing was September 5, 2019.

[16] The Appellant’s lawyer objected to GD12 going in the record on the first day of hearing. The General Division member advised her that he had the authority to allow the documents. The Appellant’s lawyer acknowledged that the General Division member had the discretion (that is, the choice) to admit these documents.

[17] The Appellant’s lawyer questioned the Appellant and two other witnesses on the first hearing day without the benefit of having reviewed GD12.

[18] On September 16, 2019, the Appellant’s lawyer asked for GD12 and other documents she needed to review.^{Footnote 8} She received them on October 8, 2019.^{Footnote 9}

[19] The Appellant argues that the General Division failed in its duty to give her a fair opportunity to present her case. She also argues that the Tribunal had a clear and ongoing duty to make sure that everyone had all the documents and had time to review them.

[20] More specifically, the Appellant argues that her right to be fully heard was taken away because she did not have an earlier chance to review and respond to GD12. The Appellant’s lawyer explains that she needed GD12 to prepare for cross-examining the Added Party’s witnesses, so receiving GD12 on October 8, 2019, was too late (cross-examination was over). She did not know the case she had to meet, or have a fair opportunity to present her case.

[21] The Appellant highlights how important GD12 was to the case. GD12 contains many pages of documents. Ultimately, she argues that the General Division member referred to documents from GD12 18 times in his decision, sometimes on important issues, including providing information about the deceased’s marriage and separation, his fidelity to the Appellant, his place of residence, and the way he is alleged to have viewed his relationship with the Appellant in 2014.

[22] At the Appeal Division hearing, the Appellant’s lawyer explained that she had wanted GD12 excluded because she considered it late.

[23] The record shows that the General Division acknowledged receiving GD12 on July 10, 2019. On July 22, 2019, it sent a copy to the Minister and copied the Appellant’s lawyer. However, the cc line on that letter did not state the address the General Division used for the Appellant’s lawyer. It may have been an address that the Appellant’s lawyer was not using or a postal box that did not match the business address she used for corresponding with the Tribunal.

[24] The larger question, the Appellant argues, is that she asked for GD12 in writing on September 16, 2019, after the first day of hearing. She did not receive it until October 8, 2019, which was not in time for the second day of hearing.

[25] At the Appeal Division level, the Minister has conceded that the General Division failed to provide a fair process. For a process to be fair, the Minister recognizes that the parties must have access to the same evidence, along with adequate time to prepare and/or defend the case.

[26] The Minister’s view is that the Appellant provided enough evidence that the General Division failed to provide a fair process. The Appellant did not receive GD12 before two hearing days concluded.^{Footnote 10} She was denied an opportunity to know and answer the case presented by the other parties. She did not have all the evidence, or enough time to prepare her case before the General Division.  

[27] In contrast, the Added Party argues that the Appellant contributed to the problems that arose in this case:

1. Her lawyer did not make clear on the first day of hearing that she did not actually have GD12.
2. Her lawyer also failed to make sure that the General Division had the correct address for her business.

[28] This raises a question about whether the Appellant should be considered to have waived (that is, given up) any right to argue that problems with GD12 amounted to a lack of fair process. In another case, I found that implying waiver (that is, assuming that the appellant has given up their right to make a certain argument) should not apply at this Tribunal.^{Footnote 11}

[29] The Minister did not argue that I should consider the Appellant to have waived her right to a fair process in this case.

[30] I do not consider that the Appellant waived her right to raise fairness issues with the timing of her receiving GD12 in this case. The Appellant’s lawyer objected to GD12 going in the record both before and on the first day of hearing. Her request was denied on the first day of hearing, and the General Division did not give her any detailed reasons why.

[31] After the first day of hearing, the Appellant’s lawyer realized she still did not have GD12, she wrote to the Tribunal and asked for it again before the next day of hearing (which was September 20, 2019) and did not receive it until October 8, 2019. Taken together, these facts make it difficult to imply waiver in this case, even if I were inclined to do so generally. Although it seems that the Appellant’s lawyer was at least partly to blame for the delay in receiving GD12, she acted diligently at several steps in the process.

[32] Ultimately, the Tribunal failed to at least make sure that the Appellant’s lawyer had received GD12 before she cross-examined the Added Party on the second day of hearing. The Tribunal is to provide documents filed by one party to the other without delay.^{Footnote 12}

[33] In my view, GD12 was compelling evidence against the Appellant that could not have been appropriately challenged at the hearing because the Tribunal took too long to provide the documents to the Appellant.  

[34] I agree with the Appellant and the Minister that the critical fairness issue arose after the Appellant’s lawyer requested the missing documents on September 16, 2019. She did not receive the documents in time for the second hearing date on September 20, 2019, and received it only on October 8, 2019 (the next hearing date was November 8, 2019). By that time, she had missed the opportunity to know the case she had to meet. The Appellant’s lawyer needed those documents to do her job properly at the hearing on September 20, 2019. In fairness, the Appellant required an opportunity, before that second day of hearing, to make sure that her cross-examination was completed with the benefit of those documents.

[35] While it is true that the Appellant’s lawyer could have requested an adjournment of the second day of hearing, this in my view does not negate the requirement for the Tribunal to have simply responded to the request she made in writing for the missing documents prior to that second day of hearing. A Tribunal response to the Appellant’s request would have informed next steps procedurally and would have been more fair. The Appellant did not receive a fair process.

Remedy

[36] Once I have found an error by the General Division, I can send the case back to the General Division for reconsideration, or I can give the decision that the General Division should have given.^{Footnote 13}

[37] The Appellant argues that, if I find a fair process error, then the matter should go back to the General Division. The Appellant has preferences about how best to proceed at the General Division to avoid the duplication of work already completed at the first hearing.

[38] The Minister argues that, if I find that the General Division made a fair process error, the appropriate remedy is to return the case to the General Division for a new (de novo)hearing held by a different General Division member.

[39] The Added Party argues that there is no fair process error, but that if there was, the matter should go back to the General Division. The Added Party also has some preferences about how the matter should proceed at the General Division so that she has an opportunity to present all the evidence that is currently available to her.

[40] I will return the matter to the General Division for a new hearing held by a different General Division member. This is the most fair way to proceed given that the error I am addressing involves fair process. I acknowledge that all the parties have ideas about how the process should unfold at the General Division. The General Division can make those decisions.

Conclusion

[41] I am allowing the appeal. I am returning the matter to the General Division for reconsideration by a different General Division member.