Other Canada Pension Plan (CPP)

Decision and reasons

Decision

[1] I am allowing the appeal. The General Division made errors. I am giving the decision that the General Division should have given: the Claimant is entitled to a disability pension under the Canada Pension Plan (CPP). These reasons explain why.

Background

[2] C. R. (Claimant) worked in tax accounting. She stopped working in May 2019 due a shortage of work. She did not return to any type of work because of her fibromyalgia.

[3] The Claimant applied for a disability pension under the CPP in August 2019. The Minister denied the application initially and on reconsideration. The Claimant appealed the reconsideration decision to this Tribunal.

[4] The General Division dismissed the Claimant’s appeal, finding that the Claimant did not prove that her disability was severe within the meaning of the CPP.

[5] I must 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 fix that error.

[6] I find that the General Division made two errors: one of fact, and another of law. To fix the errors, I will give the decision that the General Division should have given: the Claimant is entitled to a disability pension under the CPP.

Issues

[7] The issues are:

1. Did the General Division make an error of fact by ignoring evidence from the family doctor stating that it was unknown whether she would return to work in the future?
2. Did the General Division make an error of law by failing to analyze and discuss whether the Claimant’s functional limitations (set out in her testimony and medical documents) meant that her disability was severe?

Analysis

Reviewing General Division decisions

[8] The Appeal Division does not give people a chance to re-argue 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 Appeal Division bases that review on the wording of the DESDA, which sets out the grounds of appeal.

[9] The three reasons for an appeal arise when the General Division fails to provide a fair process (or decides something it cannot decide or fails to decide something it must decide), makes an error of law, or makes an error of fact.^{Footnote 1}

Error of Fact: ignoring evidence from the family doctor about returning to work

[10] The Claimant argues that the General Division ignored some of the evidence from her family doctor about whether he expected her to return to any type of work in the future.

[11] The Claimant’s family doctor completed the CPP medical report. She stated that the Claimant’s diagnosis was fibromyalgia. The Claimant’s impairments are chronic pain in muscles/joints, chronic fatigue/nonrestorative sleep, mood changes and some cognitive deterioration.^{Footnote 2}

[12] The same medical report form asks, “Did you recommend to your patient that they stop working?” In answer to that question, the Claimant’s family doctor selected “No.”^{Footnote 3} The next question asks: “(f)rom a strictly medical standpoint, do you expect your patient to return to any type of work in the future?” In response, the Claimant’s family doctor selected “Unknown.”^{Footnote 4}

[13] The General Division considered a note from the family doctor that stated she was no longer working as of July 22, 2019 due to medical reasons.^{Footnote 5} It seems the Claimant requested that note in order to apply for and receive Employment Insurance (EI) sick benefits (after her EI regular benefits ran out). The General Division member decided that she did:

…not accept that [the family doctor’s] note indicates [the Claimant] could no longer work at anything. In the medical report of August 2019, after the letter to Service Canada, [the family doctor] notes that she did not recommend the Claimant stop working. If [the family doctor] felt the Claimant could not continue working, she would have noted it on the medical report for the CPP disability application, as it is a direct question to the physician. The doctor reported the opposite, that she did not recommend the Claimant stop working.^{Footnote 6}

[14] In her conclusion, the General Division member states:

The Claimant does have fibromyalgia. She is being treated conservatively with the proper medication, and recommendations of a healthy lifestyle and exercise. Her doctor has not told her to stop working. While she may feel she is not dependable to work anywhere, there is no medical evidence, or evidence from her previous employer to suggest this to be the case.^{Footnote 7}

[15] The Claimant seems to be arguing that the General Division member made an error of fact in the way she interpreted the family doctor’s answers to the questions in the medical form. The Claimant questions how helpful the evidence from the doctor about not “recommending” she stop working can be given that it was a narrow question.

[16] If the General Division reaches its decision without regard for the record, that can be an error of fact.^{Footnote 8} The General Division does not have to refer to every piece of evidence in its decision.^{Footnote 9} I presume the General Division considered all of the evidence. However, the Claimant can overcome that presumption by showing that the evidence that the General Division was silent about in its reasons was important enough that the General Division needed to discuss it.^{Footnote 10} In other words, I can infer an error of fact when the General Division fails to mention some relevant evidence in its reasons. The more important the evidence is that the General Division fails to mention, the more likely the silence about that evidence leads to the inference that the General Division actually ignored that evidence.^{Footnote 11}

[17] The Minister argues that the General Division did not ignore the evidence from the family doctor. The Minister argues that the family doctor was unable to say whether the Claimant would be able to return to work because the Claimant was not following medical advice (namely, to do certain exercises). The Minister argued that if the Claimant followed treatment recommendations, the doctor would have known whether or when the Claimant might return to work.

[18] In my view, the General Division made an error of fact. The General Division did not mention the family doctor’s opinion that from a medical standpoint, it was unknown whether she expected the Claimant to return to any type of work in the future. This was important enough that the General Division needed to discuss it. The fact that the General Division did not discuss it leads me to conclude the General Division ignored it.

[19] The General Division concluded that there was no medical evidence to suggest that the Claimant was not dependable to work anywhere. Given that the family doctor both:

• confirmed that it was unknown when the Claimant would return to work; and
• wrote the note that the Claimant used initially to apply for EI sick benefits,

the family doctor’s opinion about whether the Claimant would return to work in future is quite important.

[20] In this case, it seems that General Division put some weight on the fact that the Claimant’s family doctor answered “no” to the question about whether she had recommended that the Claimant stop working. A doctor may well support a claimant’s decision to stop working, even if the doctor did not ever recommend outright that the claimant stop working.

[21] In this case, the family doctor wrote a note in July 2019 advising that the Claimant was no longer working due to health reasons, which the Claimant used to apply for EI sick benefits.^{Footnote 12} The General Division did not interpret this note to mean that the family doctor believed the Claimant was incapable of working in any substantially gainful job. However, in reaching that decision, was important to discuss and consider that the family doctor also stated that from a strictly medical standpoint, it was “unknown” whether they expected the Claimant to return to any type of work in the future.

[22] I cannot accept the Minister’s argument that the family doctor’s evidence that it was unknown when the Clamant would return to work was not important enough to discuss. I cannot infer from anything in the record that the family physician selected “unknown” about return to work because the Claimant was not following treatment recommendations.

[23] The failure to discuss this aspect of the evidence means in this case that I infer the General Division ignored it. The General Division made an error of fact because it based its decision about the Claimant’s ability to work without reference to the evidence about whether her doctor expected that she would return to work.

Error of law: failure to assess functional limitations

[24] The General Division made an error by failing to assess the limits to the Claimant’s functioning and how they might translate to limitations that influence her ability to work.

[25] The Claimant says she should have the disability pension because her disability is severe. That means she is incapable regularly of pursuing any substantially gainful work. In her appeal, she questions how the General Division found that she was capable of work given the pain, fatigue, and cognitive problems she faces and the fact that the General Division accepted she had fibromyalgia and its symptoms.

[26] To decide if a disability is severe, the focus is on the limitations to functioning that impact the ability to work, not simply the medical diagnosis.^{Footnote 13}

[27] The Minister argues that the General Division did not make an error by failing to assess the Claimant’s functional limitations. The General Division accepted that the Claimant had fibromyalgia and related symptoms. But ultimately, the General Division relied on the fact that the Claimant had worked during tax season in 2019, was reliable, and stopped working only when she felt she could no longer work. The Minister argues that there was no evidence that she was not dependable during that last tax season or that her work performance had deteriorated during that last season.

[28] In my view, the General Division made an error. The General Division specifically accepted that the Claimant had fibromyalgia and the symptoms associated with that fibromyalgia. The Claimant had to show that her disability was severe on or before the end of her minimum qualifying period (MQP). Her MQP ended on December 31, 2020. She stopped working after tax season in 2019. Normally, she would have continued to work part-time but she did not. By the summer of 2019, she was collecting EI sick benefits because she was not well enough to work.

[29] The Claimant and her physician listed a series of functional limitations that would affect the Claimant’s ability to work that are connected to her fibromyalgia: she had severe and widespread muscle and joint pain. She had non-restorative sleep and fatigue. She stated in her application that her ability to ability to stand, sit, and to use a computer were all poor. The General Division failed to analyze the evidence about these limits to the Claimant’s functioning. On their face, it seems that these limitations would have an impact on her ability to work, so the General Division needed to analyze them.

[30] The Claimant’s medical situation deteriorated enough that she says she could not work in May 2019. She did not work part-time as she normally would after tax season, she testified she was not able to work anymore due to her medical condition, and her doctor wrote a note for EI several months later stating that the Claimant could not work.

[31] The General Division decision does not link the limits to functioning like limits to sitting, standing and typing at a computer to the Claimant’s ability to work. It is not clear how or why it was that the General Division decided that the Claimant could work despite those limitations. It is not clear how she could be capable regularly of work, and how she could earn substantially gainful employment given the nature of the limitations in the record.

Remedy

[32] Once I find an error, I have two options to fix (remedy) it. I can give the decision that the General Division should have given, or I can return the case to the General Division for reconsideration.^{Footnote 14}

[33] At the Appeal Division hearing, the Minister and the Claimant agreed that if I found that the General Division made an error, I should give the decision that the General Division should have given.

[34] When the Claimant has had a fair chance to present the case, I give the decision that the General Division should have given. This is often the most fair and efficient way forward.^{Footnote 15} The General Division decision contains both an error of fact and an error of law. It is efficient for me fix those errors and give a decision.

[35] The Claimant had to show that her disability was severe and prolonged on the day she had her General Division hearing, which was December 10, 2020 (her minimum qualifying period, or MQP, ended a few weeks later on December 31, 2020). The Claimant applied for a disability pension in August 2019. The Claimant showed that she had a severe and prolonged disability within the meaning of the CPP as of July 2019. At that point, she had already stopped working and was applying for EI sick benefits. In reaching this conclusion, I have considered the Claimant’s medical conditions, functional limitations, and her personal circumstances.

“Severe” disability within the meaning of the CPP

[36] To be eligible for a disability pension, the Claimant must have a severe disability within the meaning of the CPP. A person with a severe disability is incapable regularly of pursuing any substantially gainful occupation.^{Footnote 16} When assessing the evidence about a claimant’s disability, the General Division considers both:

• the Claimant’s background (including age, education, language proficiency, past work and life experience); and
• the Claimant’s medical condition (which involves assessing the condition in its totality – all of the possible impairments that could affect capacity to work).^{Footnote 17}

[37] The General Division also considers the steps the Claimant took to manage the medical conditions, and whether the Claimant unreasonably refused any treatment.^{Footnote 18}

Claimant’s personal circumstances do not negatively impact her employability

[38] When deciding whether the Claimant has a severe disability, I need to consider how employable the Claimant is in the real world, given her:

1. age;
2. level of education;
3. Ability to speak, read, and write English; and
4. past work and life experience.^{Footnote 19}

[39] The Claimant was 52 years old when she had her hearing at the General Division. She took accounting in college but did not finish the degree. She has experience in tax preparation. She took courses through her company to upgrade her knowledge each year. She does not have barriers in terms of speaking, writing or reading in English. She has experience and skills that are transferrable in an office environment.

[40] In my view, the Claimant’s personal circumstances do not limit the Claimant’s employability. She is many years from the standard age for retirement in Canada, particularly under the CPP. She is capable of studying and learning and has office skills.

Claimant’s medical conditions limit her functioning and impact her ability to work

[41] Next, I need to identify what the Claimant’s medical conditions are, and how they affect the Claimant’s ability to work.

[42] The Claimant’s first family doctor thought that the Claimant had arthritis, but the next family doctor diagnosed fibromyalgia. When the Claimant’s diagnosis was arthritis, she exercised extensively – she walked seven kilometres a day until 2016. However, her condition deteriorated after that and she was no longer able to do that much exercise.^{Footnote 20}

[43] The Claimant’s medical files show that she has had testing over the years to rule out other physical conditions that could explain her pain. None of that testing resulted in some other explanation or diagnosis.

[44] I accept that the Claimant has fibromyalgia and related-symptoms. In the medical report for the CPP disability pension, the Claimant’s doctor explained that since 2019, the Claimant has severe widespread muscle and joint pain and tenderness, fatigue, non-restorative sleep, low mood and some cognitive dysfunction of memory and verbal fluency.^{Footnote 21}

[45] In the same form, the doctor checked the box to indicate that she did not recommend that the Claimant stop working, but also that from a strictly medical standpoint, it was unknown whether she expected that the Claimant would return to work. I interpret that evidence in the context of the note the family doctor wrote several months after the Claimant stopped working, which stated that the Claimant was not medically able to work.

[46] I find that while the Claimant’s doctor that she did not recommend that the Claimant stop working, the family doctor did not need to make that recommendation in order for the Claimant to qualify for the disability pension.

[47] The Claimant worked at a company preparing tax returns. Normally, she would work full time from January to April preparing taxes. The workdays were longer than 8-hour office days. After tax season, the employer laid off most people, but the Claimant would usually switch to some part time hours while collecting regular EI benefits until September. From September to December, she would attend courses to upgrade her tax knowledge for the coming tax season. It seems this was the pattern for several years at least: she testified that she worked at this tax company for 5 or 6 years, and her application for the disability pension states that she started in 2014.^{Footnote 22}

[48] The Claimant worked the tax season in 2019, and testified that she stopped work altogether in May 2019 as she could not continue because of her medical conditions. She did not work part-time instead as she normally would. Her record of employment stated that the employer laid her off due to a shortage of work. The Claimant applied for and received regular benefits from EI. When the EI benefits ran out, the Claimant’s doctor wrote that as of July 22, 2019, the Claimant was unable to work due to medical reasons.^{Footnote 23} As a result, she received EI sickness benefits.

[49] In the Claimant’s application for a disability pension, she rated as “poor” her ability to:

• Remain on her feet for at least 20 minutes;
• Go up and down 12-15 steps; and even
• Sit for at least 20 minutes in a straight back chair.

[50] She stated that her ability to stare at a computer screen for at least 20 minutes and use her index finger to press the keys on a computer keyboard was “fair.”^{Footnote 24}

[51] In the application, the Claimant stated that her hands, elbows, shoulders are “in pain 24/7.” The Claimant stated that most mornings she found it difficult to get out of bed. She describes herself as overwhelmed and depressed. The Claimant stated that she has problems with her memory and with concentration. She stated that every day is different based on how much she sleeps. She gets three to four hours per night, but not all at once. She described her fatigue as so strong that some days she feels she cannot lift a coffee cup. She takes medication to help her sleep but then reports feeling dazed and confused the next day. Her speech is slurred.^{Footnote 25} The Claimant says she is not reliable or dependable anymore because there are days when she is too fatigued or in too much pain. She cannot focus and do what needs to be done.^{Footnote 26}

[52] In my view, the medical evidence and the Claimant’s own description of her limitations in the summer of 2019 show that she was incapable regularly of any substantially gainful work. I accept both the medical evidence and the Claimant’s testimony. She has fibromyalgia. Her pain is severe and widespread. She has fatigue. She not suited to a sedentary position because her ability to sit for 20 minutes in a chair is poor, and her ability to type at a computer for at least 20 minutes is only fair.

[53] All of those limitations together have a significant impact the Claimant’s ability to work, even in a sedentary position. She cannot focus or sleep well and her mood is low.

[54] I am satisfied that the Claimant has taken steps to manage her conditions, as is required by the CPP in order to qualify for a disability pension.

[55] Once her new family doctor diagnosed her with fibromyalgia, she started to take a prescription medication to help manage her symptoms. The Claimant tried it. She testified that she gained a lot of weight with that medication, and did not feel that it was helping her. She stopped working in May 2019. She was taking a higher dose of the medication in the summer of 2019, which the doctor eventually reduced in December 2019. A few months before the General Division hearing in September 2020, the Claimant started a second prescription medication. There is evidence in the file that she also takes CBD oil and marijuana, but has not always been able to afford it. The Claimant testified that she does some exercise.

[56] There is some history of the Claimant trying other treatments like physiotherapy, but she did not benefit from them and they were costly.

[57] At the General Division hearing, the member asked the Claimant about counselling. The Claimant said that she was never referred for counselling. There is a reference in the file to trying cognitive behavioural therapy, but I accept the Claimant’s testimony that she never received a referral for that.^{Footnote 27}

[58] In my view, the evidence does not show that the Claimant has any (or residual) capacity for work that would trigger the need to show she meets the employment efforts test. The employment efforts test requires that people who have some capacity for work need to show that they have made efforts to get and keep work, and those efforts were unsuccessful because of the medical conditions.^{Footnote 28}

[59] The Claimant is not reliable and therefore capable regularly for even sedentary work. She spends some days in bed. Her fatigue and pain are significant. She does not have restorative sleep. She has cognitive limitations.

[60] The Claimant’s personal circumstances are such that they do not create an additional barrier to employment in the real world. However, the limits in her functioning as a result of fibromyalgia means that she is incapable regularly of pursuing any substantially gainful work.

The disability is prolonged

[61] The Claimant’s disability is likely to be long-continued and of indefinite duration. This means it is prolonged within the meaning of the CPP.^{Footnote 29}

[62] In the medical form, the Claimant’s family doctor stated that the Claimant’s fibromyalgia was likely to deteriorate, that the expected duration was more than a year, and that the frequency was continuous. The doctor noted also that the medication she was taking was not very helpful.^{Footnote 30} This evidence is consistent with the Claimant’s testimony that her condition has deteriorated.

[63] I find that the Claimant’s disability was severe and prolonged starting in July 2019. At that point, she had stopped working, she did not start up part-time employment as she normally did because she was not well enough, and her family doctor wrote her a note stating that she could not work. The Claimant used this note to apply for EI sick benefits.  The disability has been severe continuously from July 2019 to the date of the General Division hearing. There is no cure for fibromyalgia and even with treatment, the Claimant’s condition has not improved such that she can work.

[64] Payments start four months after July 2019, in November 2019.^{Footnote 31}

Conclusion

[65] I am allowing the appeal. I gave the decision the General Division should have given: the Claimant is entitled to a disability pension under the Canada Pension Plan.

Decision and reasons

Decision

[1] The appeal is allowed. The General Division exceeded its jurisdiction (went beyond its powers) when it granted the Respondent, G. C., additional retroactive Canada Pension Plan (CPP) retirement pension payments.

[2] I am substituting my decision for the General Division’s and confirming the Minister’s decision to start G. C.’s pension as of April 2020.

Overview

[3] The Minister is appealing a decision of the Social Security Tribunal’s General Division to start G. C.’s CPP retirement pension as of January 2020.

[4] G. C.’s completed an application for a CPP retirement pension on December 3, 2019. He says that, the next day, he had a friend mail the application to Service Canada from a post office in X, Nova Scotia.

[5] Service Canada did not stamp the application as received until March 16, 2020. The Minister started paying G. C.’s pension as of April 2020—one month after the application date, as required by law.

[6] G. C. thought that his payments should have started sooner. He was sure that Service Canada must have received his application earlier than what the date stamp showed. The Minister insisted that Service Canada received the application in March 2020, and it refused to change the start date.

[7] G. C. appealed the Minister’s refusal to the General Division. The General Division allowed G. C.’s appeal, finding it, more likely than not, that his application was mailed on December 4, 2019 and received within 10 business days. In coming to this conclusion, the General Division placed weight on evidence from G. C.’s friend, who said that she recalled handing the application to a post office employee.

[8] The Minister then asked the Appeal Division for permission to appeal the General Division’s decision. The Minister argues that the General Division lacked the power to decide whether the Minister made an administrative error in handling G. C.’s application.

[9] Late last year, I granted the Minister leave to appeal because I thought it had raised an arguable case. Now, having reviewed the record and heard the parties’ oral arguments, I have concluded that the General Division’s decision cannot stand.

Issues

[10] There are four grounds of appeal to the Appeal Division.^{Footnote 1} The party seeking to appeal must show that the General Division

1. did not follow procedural fairness;
2. exceeded or refused to exercise its jurisdiction;
3. made an error of law; or
4. based its decision on an important factual error.

[11] In this appeal, I had to answer the following questions:

• Did the General Division find that the Minister made an error? If so, what kind of error was it?
• If the Minister committed an administrative error, did the General Division have the power to move G. C.’s pension start date from April to January 2020?

Analysis

Did the General Division find that the Minister made an error?

[12] G. C. alleges that the Minister mishandled his pension application. He says that he had a friend mail it for him on December 4, 2019 and that Canada Post presumably delivered it to its destination within 10 days. He argues that, if Service Canada did not stamp the application until March 16, 2020, that means it must have lain unprocessed in its facility for more than three months.

[13] The Minister says that it investigated the matter and found no evidence of error. It maintains that the application did not arrive at its facility until March 2020.

[14] As a member of the Appeal Division, I have no mandate to make a finding about whether Minister in fact mishandled the application. But I can look at how the General Division considered that question and whether it did so properly.

[15] The General Division’s decision does not contain the word “error,” but it clearly convicts the Minister of mislaying G. C.’s application. The General Division

• accepted that the Claimant’s friend mailed the application on December 4, 2019;
• assumed that the application must have been delivered to Service Canada on or before December 16, 2019; and
• examined Service Canada’s mail processing procedures and found that it was rare for mail not to be opened, sorted, and routed on the day of delivery.

[16] On that last point, the General Division commented, “This sounds like a careful procedure. But it is not fool-proof. That is why Service Canada also has a process for locating lost items.”^{Footnote 2} It went on to find that, more likely than not, Service Canada had misplaced the application:

[C]ommon sense tells me that in any organization that receives large volumes of mail, some is bound to go missing. That includes Service Canada. Unopened or unstamped mail can be lost in the mailroom. An application can occasionally go astray, be found three months later, and then be processed as if it was just received.

I think that is most likely what happened here.^{Footnote 3}

[17] In effect, the General Division found that the Minister committed an error. And the error that it identified was an administrative error, not a substantive error. The error did not affect the Claimant’s substantive rights or his entitlement to the retirement pension. But it caused him to receive fewer payments than he would have received if Service Canada had processed his application properly.

Did the General Division have the power to move G. C.’s start date?

[18] Although the General Division found that the Minister made an error in handling G. C.’s application, it had no authority to do anything about it. By ordering the pension start date to be moved up three months, the General Division exceed its jurisdiction. I come to this conclusion for two reasons.

The General Division is barred from considering the Minister’s administrative errors

[19] The Minister denies that it received G. C.’s application any earlier than what the date stamp showed. However, the Minister argues that, even if it did mishandle G. C.’s application, the General Division had no power to force it to correct its mistake.

[20] Section 66(4) of the Canada Pension Plan allows the Minister to correct administrative errors:

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

1. (a) a benefit, or portion thereof, to which that person would have been entitled to under this Act

   […]

the Minister shall take such remedial action as the Minister considers appropriate to place the person in the position that the person would be in had the erroneous advice not been given or the administrative error not been made.

This provision contains language, highlighted above, suggesting that the Minister’s power to address its own administrative errors is discretionary or voluntary. That means that the Minister can take corrective action if it wants to, but it doesn’t necessarily have to.

[21] The Courts have said that non-judicial decision-makers such as the Social Security Tribunal can only exercise such powers as are given to it by statute. In a case called Pincombe,^{Footnote 4} the Federal Court of Appeal determined that the Review Committee (a predecessor of the General Division) could not entertain an appeal of a Ministerial decision made under a previous version of section 66(4).^{Footnote 5} The Court looked at the Review Committee’s powers under sections 81 and 82 of the Canada Pension Plan, and determined that they did not apply to a decision made under section 66(4).

[22] More than 25 years after Pincombe, these provisions remain essentially unchanged. Section 81 of the Canada Pension Plan says that a dissatisfied claimant may ask the Minister to reconsider a decision, but only if that decision falls under one of five listed categories. Section 82, in turn, limits the Tribunal to considering decisions made under section 81.

[23] Pincombe determined that section 81 did not include a Ministerial decision made under section 66(4). That analysis was confirmed by subsequent cases, including one called Tucker,^{Footnote 6} which specifically considered whether “erroneous advice or administrative error” might be the subject of section 81(1)(c). That section provides recourse where “a beneficiary is dissatisfied with any determination as to the amount of any benefit payable to him or as to his eligibility to receive that benefit [emphasis added]”

[24] Tucker was a case that involved Old Age Security (OAS) pension payments forgone because of Service Canada’s erroneous advice. Even so, it is applicable to G. C.’s appeal because the Old Age Security Act contains jurisdictional and Ministerial remediation provisions that mirror the Canada Pension Plan’s. In Tucker, the Federal Court of Appeal wrote:

Decisions as to the forgiveness of an overpayment (or the repayment of an underpayment) made as a result of erroneous advice are simply not decisions “respecting the amount of any benefit that may be paid to that person” within the meaning of subsection 27.1(1) [the equivalent of the Canada Pension Plan’s section 81(1)(c)]. The Act (just like the Plan at the relevant time in Pincombe) provides no other specific right of appeal of such a decision [emphasis added].^{Footnote 7}

[25] Pincombe, Tucker, and other cases^{Footnote 8} are clear. Under its governing legislation, the Tribunal has no jurisdiction over Ministerial decisions made under section 66(4) of the Canada Pension Plan. Since I am bound to follow Federal Court and Federal Court of Appeal cases, I have no choice but to find that the General Division exceeded its authority when it considered an appeal of the Minister’s refusal to take remedial action for an administrative error.

Administrative tribunals have no equitable power

[26] The Minister refused to take remedial action because it denied that it made an administrative error. That decision, whether right or wrong, is discretionary and therefore beyond the jurisdiction of either the General Division or the Appeal Division. The General Division may have believed that G. C. deserved three additional months of pension payments, but it didn’t have the power to disregard the law and give him what he wanted.

[27] In a case called Esler,^{Footnote 9} the Federal Court reversed an attempt by the Review Tribunal (another predecessor of the General Division) to extend retroactive OAS benefits beyond the legislative limitation. The Court wrote, “The Review Tribunal is a pure creature of statute and as such, has no inherent equitable jurisdiction which would allow it to ignore the clear legislative provision […] and use the principle of fairness to grant retroactive benefits in excess of the statutory limit.”

[28] In this case, the General Division was bound to follow the law as written and so am I. As Tribunal members, we cannot simply ignore the terms of the Canada Pension Plan and impose a solution that we happen to think is fair.

Remedy

There are two ways to fix the General Division’s error

[29] The Appeal Division has the authority to address the General Division’s errors.^{Footnote 10} I can refer this matter back to the General Division for reconsideration or give the decision that the General Division should have given.

[30] The Tribunal is required to conduct proceedings as quickly and fairly as circumstances allow. It has been 18 months since G. C. applied for the retirement pension. Returning this matter to the General Division would only delay final resolution of what is becoming a drawn-out proceeding.

[31] The parties agreed that, if I were to find an error in the General Division’s decision, the appropriate remedy would be for me to give the decision that the General Division should have given. Of course, the parties had different views about what the result should be. The Minister insisted that the law gave me no alternative but to renounce jurisdiction and confirm its determination of the start date. G. C. argued that, whatever the General Division’s errors, his retirement pension should still start as of April 2020.

The record is complete

[32] I am satisfied that I have enough information to decide the merits of this matter myself. Both parties had adequate opportunity to make their respective cases at the General Division. Since this appeal revolves entirely around issues of law and jurisdiction, no facts are at issue. Whether the General the Minister actually mishandled G. C.’s application is, in the end, irrelevant, because it never had authority to make a ruling on an administrative error.

[33] As a result, I am in a position to give the decision that the General Division should have given. In my view, if the General Division had applied sections 66(4), 81, and 82 of the Canada Pension Plan, then it would have realized that it had no jurisdiction to change the start date of G. C.’s pension.

Conclusion

[34] I am allowing this appeal. The General Division went beyond its jurisdiction by (i) finding that the Minister received G. C.’s retirement pension application in December 2019; (ii) finding that the Minister then misplaced the application for three months; and (iii) ordering the Minister to change the pension’s start date to January 2020. My own assessment of the record convinces me that the Minister’s original decision to start the pension in April 2020 must stand.