Other Canada Pension Plan (CPP)

Decision

[1] The appeal is allowed. The General Division made an error when it found that the Claimant was not entitled to a Canada Pension Plan (CPP) survivor’s pension. The Claimant’s pension will start as of May 2020.

Overview

[2] The Claimant, J. B., is seeking a CPP survivor’s pension. She claims that she was in a common-law relationship with F. R., a contributor to the CPP, when he died in a house fire on March 5, 2020.

[3] On April 9, 2020, the Claimant applied for the survivor’s pension, claiming that she and the late F. R. had cohabited in a conjugal relationship for 10 years. The Minister initially approved the application, but it changed its mind a week later, citing information that the Claimant had stopped living with F. R. on December 4, 2019.^{Footnote 1}

[4] The Claimant appealed the Minister’s decision to the Social Security Tribunal. The Tribunal’s General Division held a hearing by teleconference and dismissed the appeal. In written reasons for its decision, the General Division found that, on balance, the evidence showed F. R. was separated from the Claimant at the time of his death. The General Division pointed to the Claimant’s own testimony that she was denied access to F. R. when he was hospitalized in December 2019. It noted that the Claimant had been in another province for several months when F. R. died in March 2020. Above all, it placed weight on a statutory declaration, signed by F. R. while in hospital, that he and the Claimant were no longer together.^{Footnote 2}

[5] The Claimant strongly disagreed with the General Division’s decision and said that it was untrue “from top to bottom.” In a decision dated January 23, 2022, I granted the Claimant permission to appeal because I thought she had an arguable case that the General Division had based its decision on documents to which neither it nor the Claimant had access.

[6] I then convened a settlement conference to see if there was common ground on which the parties might come to an agreement. The parties did reach an agreement, and its terms were read into the record at the end of the settlement conference.^{Footnote 3} The parties have asked me to prepare a decision that reflects that agreement.

Agreement

[7] At the settlement conference, the Minister’s representative conceded that the General Division committed an error by relying on the statutory declaration, signed while F. R. was in hospital, to the exclusion of other evidence. She agreed that the Claimant was entitled to a CPP survivor’s pension as of May 2020, the month after the application date.

[8] The Claimant accepted the offer.

Analysis

[9] For the following reasons, I accept the parties’ agreement.

The General Division relied on information to which it did not have direct access

[10] In finding the Claimant ineligible for the survivor’s pension, the General Division placed weight on a written statement in which F. R. declared that he was no longer the Claimant’s common-law spouse:

The difficulty with the Claimant’s case is that the deceased contributor signed a Statutory Declaration on January 15, 2020 that said that he and the Claimant had lived separate and apart since December 4, 2019. This means that the Claimant is not eligible for the CPP disability pension because she and the deceased contributor were not in a common-law relationship at the time of his death. [emphasis added].^{Footnote 4}

[11] The Minister did not initially produce the statutory declaration when it shared its reconsideration file.^{Footnote 5} Nevertheless, it relied on this document to argue that the Claimant was not entitled to the survivor’s pension.^{Footnote 6} At the same time, it also referred to other documents to support its case:

• Investigation Report by Lynn Torraville, Service Canada Integrity Services Investigator – F. R. signed the statutory declaration during an interview with Ms. Torraville, who appears to have visited him while he was still a patient at the Central Newfoundland Regional Health Care Centre (CNRHC). During the interview, F. R. apparently said that he was no longer in a relationship with the Claimant.^{Footnote 7}
• Letter from F. R. to Service Canada dated January 23, 2020 – F. R. apparently made a written request to have his CPP and Old Age Security benefits issued by cheque and mailed to him directly at the CNRHC.
• Telephone Record dated February 3, 2020– In a telephone interview with Ms. Torraville, F. R. apparently referred to the Claimant as his ex-girlfriend and accused her of taking money from his bank account.

[12] None of these documents was ever produced for the record, even though they potentially contained information that was relevant to the Claimant’s case, such as:

• What led Service Canada to investigate F. R.’s marital status in the weeks before his death?
• What prompted Ms. Torraville to visit F. R. in hospital equipped with a blank statutory declaration of separation?
• What other findings, if any, did Ms. Torraville uncovered about F. R.’s living arrangements during the course of her investigation?

[13] In the end, the General Division based its decision on documents to which it did not have had access. The member relied on the Minister’s description of those documents without attempting to verify their existence or confirm their contents. In doing so, the General Division breached a rule of procedural fairness by relying on second-hand information.

The General Division failed to ensure that the Claimant had access to relevant information

[14] At the hearing, the Claimant raised the statutory declaration, rejecting any suggestion that F. R. had knowingly signed it.^{Footnote 8} She then declared that she had never seen the document. Later, the presiding General Division member asked the Minister’s representative to produce the statutory declaration, but she refused to do so because it was part of F. R.’s file, not the Claimant’s.^{Footnote 9} She added somewhat cryptically, “It’s not relevant but it is.”^{Footnote 10} The member accepted this explanation without further comment and did not press the Minister’s representative to produce the statutory declaration or any of the other investigation-related documents mentioned in her written submissions.

[15] The Minister’s representative evidently had a change of heart because, two weeks after the hearing, she submitted a copy of the statutory declaration to the Appeal Division. However, she did not submit any of the other potentially relevant documents that emerged from Ms. Torraville’s investigation. A few weeks later, the General Division issued its decision.

[16] In doing so, the General Division breached a rule of procedural fairness by failing to ensure that the Claimant had full knowledge of the case against her.

Remedy

[17] When the General Division makes an error, the Appeal Division can fix it by one of two ways: (i) it can send the matter back to the General Division for a new hearing or (ii) it can give the decision that the General Division should have given.^{Footnote 11}

[18] The Tribunal is required to proceed as quickly as fairness permits. The parties agreed that the Claimant was the deceased contributor’s survivor, and there is enough information on file to allow me to confirm that assessment for myself.

[19] Having reviewed the entire case file, I am satisfied that the Claimant was in a common-law relationship with F. R. at the time of his death.

[20] The Claimant testified that

• she and F. R. had a close and loving relationship for 10 years;
• they shared living expenses in a house that she owned and;
• they both collected pensions that went into her bank account; and
• they filed joint income tax returns and identified themselves as common-law partners.

The file contains mortgage, bank, and income tax statements that support these claims.

[21] The Claimant maintained that, in the last year of his life, F. R. was barely able to care for himself or manage his affairs. She said that, at the time of F. R.’s death, she was in Ontario pursuing a legal action. She insisted that she intended to return and was away from their home only temporarily when it was destroyed in a fire that also killed F. R..

[22] I accept this evidence. I place little weight on the statutory declaration that F. R. signed, at the instance of the Minister’s investigator, while hospitalized for treatment of lung cancer.

[23] I find that the Claimant was in a common-law relationship with F. R. when he died, even though she was absent from their home at the time.

Conclusion

[24] The appeal is allowed in accordance with the parties’ agreement. The General Division acted unfairly in finding that the Claimant was not in a common-law relationship with F. R. at the time of his death. I am giving the decision that the General Division should have given and granting the Claimant a CPP survivor’s pension beginning May 2020.