Other Canada Pension Plan (CPP)

Decision

[1] I’m refusing to give the Applicant, D. C., leave (permission) to appeal. The appeal will not proceed. These are the reasons for my decision.

Overview

[2] The Applicant is the father of GC and GOC. The Added Party is the mother of GC and GOC. The Applicant received a Canada Pension Plan (CPP) disability benefit and CPP Disabled Contributor’s Child Benefit (DCCB) for GC and GOC effective November 2014.

[3] The Minister of Employment and Social Development (Minister) changed the payee from the Applicant to the Added Party effective July 2016. The Minister decided that GC and GOC had not been in the custody and control of the Applicant since June 2016. This resulted in an overpayment for each child in the amount of $3,738.36 for the period of July 2016 to November 2017.

[4] The Applicant requested a reconsideration of the change in payee and the overpayment. The Minister maintained its decision. The Applicant appealed the Minister’s decision to this Tribunal.

[5] The General Division allowed the appeal. The Appeal Division sent the appeal back to the General Division to reconsider.

[6] The General Division allowed the Applicant’s appeal in part. In a decision dated September 4, 2024, the General Division concluded:

• From June 2016 to December 28, 2016, the Applicant had custody and control of GC and GOC.
• From December 29, 2016, the Added Party had custody and control through to November 2017 and thereafter.

[7] The Applicant wants permission to appeal the General Division’s decision.

Issues

[8] The issues in this appeal are:

1. a) Is there an arguable case that the General Division failed to give the Applicant a fair process when it:
   1. (i) refused to consider documents the Applicant said he wanted to produce?
   2. (ii) asked him to turn his camera off during the teleconference hearing?
   3. (iii) allowed the Added Party to testify about irrelevant matters and did not allow him to testify about the same matters?
2. b) Is there an arguable case that the General Division made an error of jurisdiction by deciding something (the custody and control of the children) that was already decided by the Courts?
3. c) Is there an arguable case that the General Division made an error of law by refusing to hear the Applicant’s allegations about theft and fraud by the Added Party?
4. d) Does the application set out evidence that wasn’t presented to the General Division?

I’m not giving the Applicant permission to appeal

[9] I can give the Applicant permission to appeal if the application raises an arguable case that the General Division:

• didn’t follow a fair process;
• acted beyond its powers or refused to exercise those powers;
• made an error of law;
• made an error of fact; or
• made an error applying the law to the facts.^{Footnote 1}

[10] I can also give the Applicant permission to appeal if the application sets out evidence that wasn’t presented to the General Division.^{Footnote 2}

[11] Since the Applicant hasn’t raised an arguable case and hasn’t set out new evidence, I must refuse permission to appeal.

There’s no arguable case that the General Division failed to give the Applicant a fair process.

Fair process at the General Division

[12] What fairness requires will depend on the circumstances.^{Footnote 3} When an applicant raises a concern about fairness, the ultimate questions are:

• whether that applicant knew the case they had to meet and had a chance to respond; and
• whether that claimant had an impartial decision maker consider the case fully and fairly.^{Footnote 4}

There’s no arguable case that the General Division failed to provide fair process by refusing to consider documents.

[13] The Applicant argues that when he offered to provide over a thousand photographs, receipts, audio files, videos, and written documents to impeach the credibility of the Added Party at the hearing, he should have been permitted to provide them.^{Footnote 5}

[14] When the General Division received this appeal back from the Appeal Division, the Appeal Division member provided specific instructions to the General Division for the process:

I am also directing the General Division to carefully screen subsequent submissions for relevance. The General Division is to admit only those documents that, in its judgment, are directly related to who had custody and control of the children after July 2016. The Appellant and the Added Party are hereby notified that any documents that fail to address this question will not be considered.^{Footnote 6}

[15] The General Division decision explains that the Applicant was aggressive and at times verbally abusive during the hearing.^{Footnote 7} The General Division describes attempts to maintain decorum during the hearing so that the Applicant would preserve his ability to testify.^{Footnote 8}

[16] Further, the General Division explained that the Applicant had a very difficult time refraining from discussing issues that had little or nothing to do with entitlement to the DCCB. The Applicant was not permitted to provide evidence that wasn’t relevant, including evidence about the Added Party’s character and behaviour during and after their marriage.^{Footnote 9}

[17] The Applicant hasn’t raised an arguable case for an error. The question with fair process is not whether the Applicant was permitted to provide any evidence he felt was important, regardless of its relevance or how late he asked to provide it. The question is whether the Applicant knew the case to be met and had a chance to respond to it. The General Division was clear that the Added Party’s credibility and behaviour had nothing to do with the case the Applicant had to meet.

[18] I see no argument here about how the there was any possible connection between the kind of documents and testimony the Applicant wanted to provide at the hearing and the issue in the appeal. The Appeal Division anticipated this problem for the General Division and went so far as to notify the parties that the General Division decision would carefully screen documents for relevance and would not consider those that were irrelevant.

[19] Additionally, I see no indication that the Added Party’s credibility was at issue. The General Division’s task was to weigh the parties’ evidence about having custody and control of the children. The General Division is a tribunal and doesn’t follow the strict rules of evidence like a court does. It must, however, provide a process that is simple, quick, and fair.^{Footnote 10} Redirecting unrepresented parties who might be seeking to lead irrelevant evidence is an important part of maintaining a simple and quick process that is still fair.

[20] There’s no arguable case that the General Division breached the Applicant’s right to fairness by refusing to let him provide this additional evidence.

There’s no arguable case that the General Division failed to provide a fair process by asking the Claimant to turn his camera off during the teleconference hearing.

[21] The Applicant argues that being told to turn off his camera at the hearing and participate by teleconference as the other parties were doing “totally defeated the purpose” of his request. I believe the Claimant is referring to his request to re-open the hearing so that he could participate after missing the first scheduled date. The Applicant went as far as to say that the General Division member’s instruction was for a “nefarious reason because there was something I wasn’t supposed to witness.”^{Footnote 11} The Claimant provides no further information to support this claim.

[22] As I explained in the overview, the General Division was reconsidering the matter with instructions from the Appeal Division. The Appeal Division returned the matter to the General Division to conduct either a teleconference hearing or a videoconference hearing so that the Applicant would have a chance to testify consistent with fair process.^{Footnote 12} 

[23] As the General Division described in its decision, it held the teleconference hearing in April 2024. The Applicant didn’t attend this hearing, but the Added Party and Minister’s representative attended. The Applicant later advised the Tribunal by e-mail that he tried to connect to the hearing; however, he was unsuccessful due to his location.^{Footnote 13}

[24] The General Division decided that it would be procedurally unfair to the Applicant to decide the appeal without reopening the hearing to allow him an opportunity to participate. The General Division also sent a copy of the recording from the first hearing to all parties.^{Footnote 14} The Tribunal issued a new notice of teleconference hearing. I have no evidence to suggest that the Applicant requested that the form of hearing be changed in advance of the hearing.^{Footnote 15} The General Division reopened the hearing on August 28, 2024. All parties attended.

[25] I see no arguable case that asking the Applicant to turn off his camera to ensure he was participating in the teleconference as the other parties were had any impact on the fairness of the process. I see no possible impact on the Applicant’s ability to know the case to be met, and to present his case fully before an impartial decision maker.

[26] The Applicant may not have been aware that teleconferences using Zoom as a platform was possible, but that doesn’t make the teleconference hearing unfair. He’s provided no arguable case as to how being asked to turn his camera off to participate at a teleconference hearing deprived him of his right to be heard.

There’s no arguable case that the General Division failed to provide a fair hearing by allowing the Added Party to testify about irrelevant matters and not allowing the Applicant to testify about the same matters.

[27] The Applicant argues that the General Division failed to provide him with a fair process by allowing the Added Party to testify about irrelevant matters and not allowing him to testify about the same matters.^{Footnote 16}

[28] General Division members are required to help parties participate fully in the appeal process. This includes using methods other than adversarial methods of adjudication the courts typically use. These methods may include deciding what issues need to be addressed and deciding what procedures are appropriate in the circumstances.^{Footnote 17}

[29] In this case, the decision from the Appeal Division returning the matter to the General Division stated quite clearly that the parties had sometimes “found it difficult to refrain from arguing over things that have little or nothing to do with the issue at hand: DCCB entitlement.”^{Footnote 18}

[30] The Applicant wasn’t clear in his materials about what matter the Added Party was able to testify about that he was prevented from covering in his testimony.

[31] However, the Applicant has provided no information to support an arguable case that his right to be heard was jeopardized in any way. It’s not clear to me that the Applicant is even arguing that the General Division relied on or considered the irrelevant matter he says the Added Party was permitted to testify about.

[32] And if the matter the Added Party testified about was irrelevant as the Applicant says it was, and he wasn’t permitted to testify about it, that cannot possibly form an arguable case for a breach of the right to fairness for at least two reasons.

[33] First, fairness doesn’t require the Applicant have the chance to respond to issues or items that aren’t part of the case to be met. The Applicant concedes the information he wasn’t permitted to testify about was irrelevant. Therefore, the Applicant hasn’t raised an arguable case for a lack of fairness.

[34] Second, fairness requires an impartial decision maker. To decide whether there is a reasonable apprehension of bias (or a lack of impartiality), the correct legal question is to ask is: what would a reasonably well-informed person, viewing the matter realistically and practically, having thought the matter through, conclude?^{Footnote 19} The person considering the bias must be reasonable and the apprehension of bias must be reasonable in the circumstances of the case.^{Footnote 20}

[35] The Claimant has provided no arguable case that the General Division’s management of testimony as between the parties would lead a reasonable person to conclude there was bias.

[36] I listened to the recording of the General Division hearing and observed how difficult it was throughout the process to keep the witnesses on track. I observed no example of any red flags that would signal a possible reasonable apprehension of bias.

[37] The Applicant hasn’t raised an arguable case for an error based on any failure to provide a fair process.

There’s no arguable case that the General Division made an error of jurisdiction by deciding something (the custody and control of the children) that was already decided by the Courts.

[38] The Applicant argues that the General Division made an error of jurisdiction by deciding something (the custody and control of the children) that was already decided by the Superior Court of Justice.^{Footnote 21}

[39] The General Division may decide any question of law or fact that is necessary for deciding any appeal that is properly before it.^{Footnote 22} When it comes to the CPP, the Tribunal can decide questions of law or fact relating to whether a benefit is payable to a person or its amount.^{Footnote 23}

[40] The General Division needed to decide which parent was entitled to payment of the DCCB between June 2016 and November 2017.^{Footnote 24} In order to decide to whom the benefit was payable, the General Division had to consider the wording of the CPP in place at the time, which stated that the DCCB is paid to the parent who exercised custody and control of the children.^{Footnote 25}

[41] If a court made an order or underlying findings of fact that could be relevant to determining custody and control in the context of the CPP or a court, this may be relevant evidence for the General Division to consider in making its decision. But the Applicant states that a judge stated, “on the record and in open court that neither party had custody of the two remaining children of the marriage.”^{Footnote 26}

[42] If this were true, the existence of such a statement doesn’t negate the jurisdiction of the General Division to decide who had custody and control for the purpose of the DCCB. It also doesn’t help the General Division reach any conclusion on that issue, since the General Division would need to decide that at least one parent had custody and control of the children in order to determine which parent was entitled to payment.

[43] The Applicant hasn’t raised an arguable case for an error of law relating to any findings by the family court.

There’s no arguable case that the General Division made an error of law by refusing to hear the Applicant’s allegations about theft and fraud by the added party.

[44] The Applicant argues that the General Division made an error of law by refusing to hear his allegations of fraud and theft by the Added Party.^{Footnote 27}

[45] The General Division acknowledged in its decision that at the hearing, the Applicant raised issues about theft. He said that the DCCB payments were stolen from him. Accordingly, he doesn’t think he should be responsible for the overpayment. The General Division stated that it does not have the jurisdiction to determine whether a theft was committed.^{Footnote 28}

[46] It isn’t unreasonable for a decision maker to fail to address allegations that fall outside the scope of its legal mandate.^{Footnote 29} Since the General Division has no mandate to investigate fraud or theft related to any CPP benefits, there can be no arguable case for a General Division error arising from refusing to hear those arguments.^{Footnote 30}

There’s no new evidence.

[47] The Applicant hasn’t set out any new evidence that wasn’t already presented to the General Division. So new evidence also cannot form the basis for permission to appeal.

[48] I’ve reviewed the record.^{Footnote 31} I’m satisfied that there’s no arguable case that the General Division ignored or misunderstood any other important evidence. The Applicant’s behaviour was challenging (to say the least) at the General Division hearing. The General Division member displayed a great deal of skill, professionalism, and restraint throughout the hearing. The General Division applied the law about payment of the DCCB to the facts of the appeal and I see no arguable case for error.

Conclusion

[49] I’ve refused to give the Applicant permission to appeal. This means that the appeal will not proceed.