Other Canada Pension Plan (CPP)

Decision

[1] I am refusing leave (permission) to appeal. The appeal will not proceed. These reasons explain why.

Overview

[2] M. S. (Claimant) was married to F. F. (the Contributor). In August 2001, the Contributor was murdered.

[3] The Claimant applied for a survivor’s pension under the Canada Pension Plan (CPP). The Minister of Employment and Social Development (Minister) approved the pension in September 2001.

[4] In May 2006, the Claimant was convicted of first-degree murder of the Contributor. That same month, the Minister stopped the CPP survivor’s pension. The Minister required the Claimant to repay the payments she received from September 2001 to May 2006.

[5] The Claimant successfully appealed her conviction in 2011. However, in October 2013, the Claimant had another trial. She was convicted of first-degree murder of the Contributor again. She is serving her sentence for that conviction.

[6] The Claimant asked the Minister to reconsider the May 2006 decision to stop the CPP survivor’s pension and collect the overpayment. The Minister confirmed its decision. The Claimant appealed to this Tribunal.

[7] The General Division decided that the Minister had the clear authority to stop the CPP survivor’s pension and require the Claimant to repay what she already received. The Claimant asks for leave to appeal the General Division’s decision.

[8] I must decide whether it is arguable that the General Division made an error that would justify granting the Claimant leave to appeal.

[9] It is not arguable that the General Division made an error. I am refusing leave to appeal. The appeal will not go ahead.

Issue

[10] The issues in this case are as follows:

1. a) Can it be argued that the General Division made an error of law by deciding that the CPP:
   • prevents the Claimant from receiving any benefits as a result of the Contributor’s death; and
   • requires her to repay any amounts she received?
2. b) Can it be argued that the General Division made an error of jurisdiction because it failed to decide an issue that it should have or decided an issued that it shouldn’t have?
3. c) Can it be argued that the General Division failed to provide the Claimant a fair process because it relied on a document that the Claimant did not have the chance to review and respond to first?

Analysis

[11] First, I will describe my role at the Appeal Division in terms of reviewing General Division decisions. Second, I will explain how I have reached the conclusion that it is not arguable that the General Division made an error.

Reviewing General Division decisions

[12] The Appeal Division does not provide an opportunity for the parties to re-argue their case in full. Instead, I reviewed the Claimant’s arguments and the General Division’s decision to decide whether the General Division may have made any errors.

[13] That review is based on the wording of the Department of Employment and Social Development Act (Act), which sets out the “grounds of appeal.” The grounds of appeal are the reasons for the appeal. To grant leave to appeal, I must find that it is arguable that the General Division made at least one of the following errors:

• It acted unfairly.
• It failed to decide an issue that it should have, or decided an issue that it shouldn’t have (an error of jurisdiction).
• It based its decision on an important error regarding the facts in the file.
• It misinterpreted or misapplied the law.^{Footnote 1}

[14] At the leave to appeal stage, a claimant must show that the appeal has a reasonable chance of success.^{Footnote 2} To do this, a claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 3}

Not arguable that the General Division made an error of law

[15] It is not arguable that the General Division made an error of law in its interpretation of the CPP.

[16] The Claimant argues that the General Division made an error of law. She notes that the part of the CPP that specifically allows the Minister to stop the pension and collect the money they paid wasn’t passed until 2015. Before 2015, the focus of the Minister’s decision to stop her survivor’s pension was on policy and on the common law idea of not profiting from crime. The Claimant notes that for the period between her successful appeal and her second conviction, she had not committed a crime in the eyes of the law. She was innocent until proven guilty and there was nothing in the CPP that stated specifically that she could not access the survivor’s pension because of her previous conviction or then pending second trial.

[17] The General Division relied on the CPP to reach these three conclusions:^{Footnote 4}

• A survivor’s pension is not payable to a person convicted of first or second-degree murder or manslaughter of the contributor.^{Footnote 5}  
• The Minister is required to recover any amounts paid to the convicted person even if the Minister paid before the conviction.^{Footnote 6}
• The above applies to convictions that happened before this rule came into effect. This means no one who is convicted of first or second-degree murder or manslaughter of a contributor may have or keep any benefits received because of the death of that contributor.^{Footnote 7}

[18] In my view, it is not arguable that the General Division made an error of law. The General Division applied the CPP law as it is written now. That law is specifically and clearly retroactive. The General Division did not have a reason in law to ignore the current law and apply the CPP as it was before 2015. It is not arguable that the General Division made an error of law by reaching the three conclusions it reached.

Not arguable that the General Division made an error of jurisdiction

[19] It is not arguable that the General Division made an error of jurisdiction by applying the current version of the CPP to the Claimant’s appeal.

[20] The Claimant argues that the General Division made an error of jurisdiction. She says that it is not consistent with the General Division’s power to find that the Minister was entitled to stop the survivor’s benefit and collect the overpayment based on the current version of the CPP. More specifically, the Claimant argues that it is not consistent with the principles of the rule of law in Canada for the General Division to apply the current version of the CPP to her situation. People should not be punished except for a distinct breach of an established law.

[21] In 2011, the Claimant succeeded on appeal, and was retried and convicted again in 2013. The CPP was silent on the matter of survivor’s pensions for anyone convicted of first-degree murder of contributors until 2015.

[22] In my view, the Claimant has not raised an arguable case for an error of jurisdiction. The General Division did not just have to decide whether the Claimant was entitled to the survivor’s pension at any one snapshot in time during her criminal appeal process.

[23] In July 2017, the Minister wrote to the Claimant stating that it was the common law principle that a person cannot benefit from his or her offence that meant that she could not have the survivor’s pension and the Minister denied her second application.^{Footnote 8}

[24] The Claimant requested reconsideration in October 2017. She received a reconsideration decision dated March 2020. The law required the General Division to review the reconsideration decision. That decision relies on the CPP as it was from 2015 onwards, which contains a provision that applies retroactively.

[25] The reconsideration letter describes the policy choices the government made during the initial decision, but it communicates the basis, in law, for refusing the Claimant’s request to have the 2006 decision reconsidered: a current law that applies retroactively.

[26] The General Division was required to and did make a decision on appeal about that reconsideration decision. There is no way to evaluate that reconsideration decision from 2020 without considering the state of the CPP when the Minister issued the reconsideration decision. From 2015 onwards, the CPP contained the rule against eligibility for a survivor benefit where the survivor is convicted of first-degree murder of the contributor. The General Division did not make an error of jurisdiction.

Not arguable that the General Division failed to provide a fair process

[27] It is not arguable that the General failed to provide a fair process.

[28] The Claimant argues that the General Division relied on a document that she did not have a chance to see or to comment on. Relying on a document that a party does not get to review could be a failure to provide a fair process. The General Division decision acknowledges the Minister’s argument that “the law in 2006 allowed the Minister to stop paying benefits to the Claimant so she would not benefit from her criminal act.”^{Footnote 9} The Claimant notes that the Minister did not provide any copy of what law they were relying on from 2006.

[29] In my view, there is no arguable case that the General Division failed to provide the Claimant with a fair process. It seems to me that the Minister’s arguments about the law in 2006 focused on the common law about profiting from criminal activity. The Minister did not take the position that there was anything in the CPP in 2006 specifically that spoke to the inability to receive the survivor’s pension where there is a conviction for first-degree murder of the contributor.

[30] Accordingly, there is no document or piece of legislation that the General Division reviewed and then failed to provide to the Claimant. The General Division did not fail to provide a document to the Claimant for her review or comment. It is not arguable that the General Division failed to provide the Claimant with a fair process.

[31] Two final notes. First: I reviewed the written record. I am satisfied that the General Division did not misunderstand or ignore evidence that could have an impact on the outcome of this appeal.^{Footnote 10}

[32] Second: I am satisfied that the Claimant is not attempting to challenge the validity of the CPP under the Canadian Charter of Rights and Freedoms (Charter) for the first time at the Appeal Division level. The Claimant references the Charter in her written arguments at the Appeal Division in the context of rule of law principles. She seems to raise the rule of law to bolster her position that at law, the General Division member should not have applied the CPP as it was when the Minister issued the reconsideration decision on appeal.^{Footnote 11}  The Claimant considered (and ultimately abandoned) a Charter challenge at the General Division level. I do not understand her to be challenging the constitutional validity of the CPP as part of her arguments about any possible errors that the General Division may have made in her appeal. Her appeal was not about Charter validity.^{Footnote 12}

Conclusion

[33] I refused permission to appeal. This means that the appeal will not proceed.