Other Canada Pension Plan (CPP)

Decision

[1] I am refusing the Applicant’s requests for an extension of time and for leave to appeal. I see no basis for this appeal to go forward.

Overview

[2] The Applicant (M. B.) and the Second Respondent (R. D.) lived together as common-law partners from August 2005 until they married in March 2006. They were divorced in October 2016.

[3] In April 2018, M. B. applied for a Canada Pension Plan (CPP) credit split. She submitted with her application proof of her marriage and divorce. The First Respondent (Minister) proceeded to redistribute R. D.’s CPP credits to M. B. R. D. objected to the credit split and asked for it to be reversed.

[4] The Minister refused, saying that she has no choice but to divide CPP credits between former spouses when she receives information that they have been divorced. R. D. appealed the Minister’s refusal to the General Division of the Social Security Tribunal. He said that he did not have enough money to live on. He argued that he should get his credits back because he and his former wife had agreed not to split any of their assets.

[5] The General Division held a hearing by teleconference and, in a decision dated June 2, 2021, dismissed the appeal. It agreed with the Minister that a CPP credit split is mandatory for spouses divorced after January 1, 1987. It said that the Minister was required to perform the credit split upon receiving sufficient proof that a divorce had taken place. It found that M. B. and R. D. could not waive the CPP credit split, since they were divorced in Ontario, and that province had not enacted legislation that would have allowed them to do so.

[6] M. B. is now requesting permission to appeal from the Appeal Division. She says that she did not receive notice of the General Division’s hearing, which occurred by teleconference on May 31, 2021, until after it was over.^{Footnote 1}

Issues

[7] An appeal can proceed only if the Appeal Division first grants permission to appeal.^{Footnote 2}At this preliminary stage, I have to decide the following related questions:

• Was M. B.’s application for leave to appeal filed late? If so, should I grant her an extension of time?
• Does M. B.’s appeal have a reasonable chance of success?

Analysis

M. B.’s request for leave to appeal was late

[8] An application for leave to appeal must be made to the Appeal Division within 90 days after the day on which the decision was communicated to the applicant.^{Footnote 3} The Appeal Division may allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the applicant.

[9] In this case, the General Division issued its decision on June 2, 2021. The following day, the Tribunal mailed the decision to M. B. at the residential address that she had provided to the Tribunal. The Appeal Division did not receive M. B.’s application for leave to appeal until April 25, 2022—more than 10 months after the filing deadline. That means the application was at least seven months late.

[10] In a case called Gattellaro,^{Footnote 4} the Federal Court set out four factors to consider when deciding whether to allow further time to appeal:

• whether the applicant has a reasonable explanation for the delay;
• whether the applicant demonstrates a continuing intention to pursue the appeal;
• whether allowing the extension would cause prejudice to other parties; and
• whether the matter discloses an arguable case.

[11] The weight to be given to each of the Gattellaro factors may differ from case to case, and other factors may be relevant. However, the overriding consideration is that the interests of justice be served.^{Footnote 5}

M. B. did not have a reasonable explanation for the delay

[12] The form requesting leave to appeal specifically asks applicants to explain why, if applicable, their appeal might be late. M. B. did not address the question. Instead, she stated that she did not receive notice of the May 31, 2021 hearing until the following month. But this statement did not explain why it took her so long before seeking an appeal at the Appeal Division.

M. B. did not have a continuing intention to pursue the appeal

[13] As noted, more than 10 months passed between the issuance of the General Division’s decision and M. B.’s request for leave to appeal. Given that length of time, I am not satisfied that M. B. had an ongoing intention to appeal after the end of the 90-day filing deadline.

The other parties would not be prejudiced by an extension

[14] I find it unlikely that permitting M. B. to proceed with his appeal at this late date would prejudice the other parties’ interests. M. B. is attempting to appeal a decision that went against R. D.’s financial interests, and I suspect that her former husband is open to any proceeding that might return his pension credits. As for the Minister, given the resources at her disposal, I don’t see how her ability to respond would be unduly affected by extending the filing deadline.

M. B. does not have an arguable case

[15] Parties seeking an extension of time must show that they have at least an arguable case on appeal. As it happens, this is also the test for leave to appeal. The Federal Court of Appeal has held that an arguable case is akin to one with a reasonable chance of success.^{Footnote 6}

[16] There are four grounds of appeal to the Appeal Division. An applicant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to exercise those powers;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 7}

[17] I am not sure why M. B. is seeking to appeal the General Division’s decision in the first place. M. B. applied for a credit split. The Minister gave it to her. R. D. then attempted to reverse the split but failed at the General Division. It is hard for me to understand why M. B. would now want to overturn that decision, since doing so would negatively affect her financial interests.

[18] It may be that M. B. has changed her mind about wanting the credit split. If so, I cannot help her. The following reasons explain why.

There is no arguable case that the General Division denied M. B.’s right to be heard

[19] Looking at the file, I see that the General Division scheduled four hearing dates in this matter. Before the hearing finally occurred on May 31, 2021, proceedings were adjourned three times because M. B. did not appear—on one occasion because she did not receive notice of the scheduled hearing,^{Footnote 8} on two others because she had difficulty connecting to the teleconference.^{Footnote 9}

[20] However, contrary to what M. B. suggests in her application for leave to appeal, she ultimately did appear at the May 31, 2021 teleconference. That can only mean that she did, in fact, receive notice of the hearing. The recording of the hearing indicates that, after yet another delay caused by technical difficulties, M. B. joined the call. With the help of a Spanish interpreter, she fully participated in the proceedings.^{Footnote 10} It is clear from its decision that the General Division considered M. B.’s testimony about her difficulties following her divorce.^{Footnote 11}

[21] I don’t see an arguable case that the General Division prevented M. B. from making her case. Indeed, the record shows that it went to considerable lengths to ensure that she got a hearing. Besides, it is hard for M. B. to argue that the General Division treated her unfairly when, to all outward appearances, it gave her the result she wanted.

There is no arguable case that the credit split can be reversed

[22] I also examined the General Division’s decision for potential errors of fact or law. I did not see an arguable case in either category.

[23] In this case, the essential facts were uncontested: R. D. and M. B. entered into a common-law relationship in August 2005 and they married in March 2006. They were divorced in October 2016. They lived in Ontario from the beginning of their relationship to its end.

[24] Against that factual background, the General Division correctly interpreted the law around CPP credit splitting. It determined that, if a divorce has been granted and one of the former spouses applies for a credit split, then a credit split is mandatory. Under the Canada Pension Plan, the Minister is not bound by a spousal agreement or court order.^{Footnote 12} The split must be made, whether or not the former spouses explicitly opt out of it. An exception may occur only if an agreement not to split CPP credits is expressly permitted in the province that governs the agreement.^{Footnote 13}

[25] In this case, R. D. and M. B.’s separation agreement was governed by the laws of Ontario. Given this, the General Division was within its authority to accept the Minister’s submission that there was nothing in Ontario law that allowed them to opt out of the mandatory credit split. Based on the set of facts before it, the General Division had no option but to dismiss R. D.’s appeal.

Conclusion

[26] I have decided that this is not an appropriate case to allow an extension of time to appeal beyond the 90-day limitation. Although I found it unlikely that either R. D.’s or the Minister’s interests would be prejudiced by extending time, I saw no reasonable explanation for M. B.’s delay in seeking an appeal, nor did I see a continuing intention on her part to pursue an appeal. Above all, I didn’t think she had an arguable case. This last factor was decisive: I see no point in advancing an appeal that is doomed to fail.