Other Canada Pension Plan (CPP)

Decision

[1] The Appellant, L. M., failed to properly serve and provide proof of service to the Tribunal of her Notice of Constitutional Question (NCQ) as required under the Social Security Tribunal Regulations (SST Regulations). The hearing of the Charter appeal scheduled for June 16 and 17, 2022 cannot proceed and is being adjourned to September 26 and 27, 2022. I am giving the Appellant until August 26, 2022 to properly serve and provide proof of service to the Tribunal of her NCQ as required under the SST Regulations. The following reasons explain why I made this decision.

Overview

[2] This appeal involves a constitutional challenge to paragraph 44(1)(d) and subsection 58(1) of the Canada Pension Plan (CPP). The Appellant says that her equality rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms (the Charter) have been violated.^{Footnote 1}

[3] The Appellant was born on X. She was 34 years old when her spouse passed away on July 9, 1998.

[4] The Appellant applied for a survivor’s pension in 1998. The Minister of Employment and Social Development (the Minister) denied her application. This was because she did not fulfill the criteria to be eligible for a survivor’s pension when her spouse passed away in 1998. She was not 35 years old, she did not have dependant children and she was not disabled.^{Footnote 2}

[5] The CPP was amended effective January 1, 2019. The amendments removed qualifying conditions to receive a survivor’s pension when a survivor is under 35 years of age. The Minister wrote to the Appellant in January 2019. The Minister invited her to resubmit a survivor’s pension application.^{Footnote 3} The Minister approved her application. The Appellant began receiving a survivor’s pension in January 2019.

[6] The Appellant asked the Minister to reconsider its decision. She asked for retroactive payment of a survivor’s pension to August 1998.^{Footnote 4} The Minister denied her request because the CPP said no payments could be made before January 1, 2019.^{Footnote 5} The Appellant appealed the Minister’s reconsideration to the General Division of the Social Security Tribunal of Canada.

[7] The Appellant had a hearing before the General Division on November 8, 2019. The General Division member dismissed her appeal on November 14, 2019. The General Division member ruled that the Appellant could not receive a survivor’s pension before January 2019.

[8] The Appellant appealed the General Division’s decision to the Tribunal’s Appeal Division. The Appeal Division allowed the appeal on June 22, 2020 because the General Division did not provide the Appellant with a fair process. The Appeal Division found that the General Division failed to consider arguments that the relevant sections of the CPP violated the Appellant’s Charter rights.

[9] The Appeal Division referred this matter back to the General Division for reconsideration with the direction that I should consider whether the Appellant’s NCQ (filed at AD9) is sufficient for the Charter claim to be decided.

[10] I eventually decided that the Appellant’s NCQ met the requirements of the SST Regulations. It set out the provision that is at issue and it provided submissions in support of the issue that was raised. I decided that the Appellant’s NCQ contained an outline of a Charter Argument. She argued that she was discriminated against under the Charter because of age. She was only two months shy of her 35^th birthday when her spouse passed away. Age is an enumerated ground of discrimination in subsection 15(1) of the Charter.^{Footnote 6}

[11] I have held several prehearing conferences to discuss procedural issues, including the delivery of records for this Charter appeal. I found that the Appellant’s record raised enough issues that it required the delivery of a record from the Minister.^{Footnote 7} The Minister has delivered its responding record.^{Footnote 8} The Appellant delivered a reply record.^{Footnote 9}

[12] At our last prehearing on April 12, 2022, I advised the Appellant that the SST Regulations required her to serve her NCQ on the Attorney General of Canada and the attorney general of each province and provide proof of service of her notice to the Tribunal at least 10 days before the hearing.^{Footnote 10}

[13] I asked the Appellant to serve her NCQ and provide proof of service to the Tribunal on or before May 27, 2022, so that the hearing could proceed on June 16 and 17, 2022.^{Footnote 11}

[14] The Tribunal received an e-mail from the Appellant on May 25, 2022. She said she had e-mailed her NCQ to the provinces and was planning to fax her NCQ to the attorneys general of Nunavut and the Northwest Territories.^{Footnote 12}

[15] The Minister’s legal representative wrote to the Tribunal on May 31, 2022. The Minister argued that the Appellant did not properly serve her NCQ as set out in the SST Regulations. The Minister made the following arguments:

• The Appellant raised new and irrelevant arguments and improperly included pages from the Respondent’s submissions in her NCQ.
• The Appellant failed to meet the deadline to serve the provincial attorney generals and the Attorney General of Canada and she failed to provide proof of service of the NCQ to those she claimed to have served.^{Footnote 13}

[16] The Minister asked that I direct the Appellant to refile a proper NCQ and provide proof of service as required by the SST Regulations within the legislated timeframe.

Issue

[17] Did the Appellant properly serve her NCQ as set out in the SST Regulations?

Analysis

[18] I agree with the Minister that the Appellant did not properly serve her NCQ as set out in the SST Regulations.

[19] A NCQ is an important document. A NCQ serves the vital purpose in ensuring that courts and tribunals have a full evidentiary record when considering alleged Charter breaches. A NCQ ensures that a law cannot be declared unconstitutional unless the fullest opportunity has been given to the government to support the law’s validity.^{Footnote 14} A NCQ is mandatory and I cannot consider a constitutional challenge in the absence of a notice being served on the Attorney General of Canada and each provincial attorney general. A NCQ is not a mere formality or technicality. I cannot relieve the Appellant from her obligation to properly serve and file proof of service of a NCQ.^{Footnote 15}

[20] The Appellant did not properly serve her NCQ as set out under the SST Regulations. She did not serve the NCQ that I decided met the requirements of the SST Regulations. Nor did she serve the NCQ that was contained in her submissions at IS15-4.^{Footnote 16} Instead, the Appellant served a completely new document. This document contained new arguments that did not specifically identify which section of the CPP the Appellant was challenging.

[21] I agree with the Minister’s argument that it would be familiar with this matter and be able to make informed inferences about which provisions the Appellant is challenging. But the same cannot be said for the provincial attorneys general whose only details about this appeal are contained in the NCQ the Appellant served. Without proper context, the provincial Attorneys General are unable to consider the notice or the nature of the constitutional challenge and make an informed decision on whether or not to participate in a hearing.

[22] The Appellant’s NCQ that she tried to serve on all provincial attorneys general also contains pages from an expert report retained by the Minister, which is not the proper subject of a NCQ.

[23] The Appellant also stated that she has yet to serve the attorneys general of Nunavut and the Northwest Territories. She said she e-mailed the provincial attorneys general. But she provided no proof that she has served any of the required recipients. It is also unclear if the Appellant properly served the Attorney General of Canada.^{Footnote 17}

[24] The SST Regulations say that if proof of service of the NCQ has not been filed at least 10 days before a hearing, the Tribunal may adjourn or postpone the hearing.

[25] The hearing in this appeal is scheduled to proceed on June 16, 2022. This means that the Appellant must serve her NCQ on the Attorney General of Canada and all provincial attorneys general, and file proof of service with the Tribunal by June 6, 2022. The Appellant will not meet that deadline.

[26] The hearing scheduled for June 16 and 17, 2022 cannot proceed and is being adjourned. I am giving the Appellant until August 26, 2022 to properly serve and provide proof of service to the Tribunal of her NCQ as required under the SST Regulations. The Appellant should serve the NCQ that is contained at AD9 and IS15-4 on the Attorney General of Canada and all provincial attorneys general. She cannot serve a new NCQ that contains arguments that are outside the appeal record.

[27] If the Appellant successfully serves a NCQ on the Attorney General of General and all provincial attorneys general, and provides proof of service with the Tribunal as required under the SST Regulations by August 26, 2022, the Charter hearing will be rescheduled to September 26 and 27, 2022.

[28] If the Appellant does not serve a NCQ on the Attorney General of General and all provincial attorneys general, and provide proof of service with the Tribunal as required under the SST Regulations by August 26, 2022, the Tribunal member will hold a prehearing conference to discuss the issue of whether her Charter appeal should be dismissed.

Conclusion

[29] The Charter hearing scheduled for June 16 and 17, 2022 cannot proceed and is being adjourned to September 26 and 27, 2022. I am giving the Appellant until August 26, 2022 to properly serve and provide proof of service to the Tribunal of her NCQ as required under the SST Regulations.