On this page
Reasons and decision
[1] This appeal is about whether the General Division breached the principles of natural justice by depriving the Appellant of an opportunity of a fair hearing.
[2] On October 1, 2015, the General Division determined that the Appellant was not entitled to a Canada Pension Plan disability pension, as it found that her disability was not “severe” by the end of her minimum qualifying period of December 31, 2013. The Appellant filed an application requesting leave to appeal, alleging that there had been a breach of natural justice, as the General Division had proceeded with the (rescheduled) hearing in her absence.
[3] The Appellant provided conflicting explanations as to why she was unaware of the hearing. On one occasion, she explained that she had been hospitalized August 20, 2015 to November 15, 2015. Subsequently, she provided an unsigned letter dated April 1, 2016, purportedly from a healing lodge in the Northwest Territories. The letter indicated that the Appellant had stayed at the healing lodge from August 15, 2015 to October 15, 2015, inclusive. There was no address or contact information on the letter from the healing lodge, and the Appellant failed to respond to any requests for clarification and greater particulars of alleged hospitalization or attendance at the healing lodge.
[4] The Appellant also provided a letter from her family physician who indicated that the Appellant was experiencing worsening bilateral knee pain and required sedentary employment. The Appellant did not respond to any enquiries as to how the family physician’s letter addressed any of the grounds of appeal under subsection 58(1) of the Department of Employment and Social Development Act or how it supported her claim to a disability pension.
[5] Nonetheless, I granted leave to appeal, on the basis that it was unclear from the hearing file whether the Social Security Tribunal had notified the Appellant of the hearing before the General Division. The hearing file did not include any copies of the notice of (rescheduled) hearing or a proof of service.
[6] The time for filing submissions has now passed. The Appellant has not filed any submissions in response to my leave decision.
[7] The Respondent filed submissions on August 4, 2016. The Respondent submits that the General Division owed a duty of fairness to the Appellant, and the underlying notion is to “… ensure that administrative decisions are made … with an opportunity for those affected by the decisions to put forward their views and evidence fully and have them considered by the decision-maker”: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para. 22. Counsel for the Respondent indicates that she has reviewed the hearing file and also has been unable to verify whether the Social Security Tribunal gave notice of the hearing to the Appellant. Accordingly, the Respondent is of the position that the General Division may have failed to observe a principle of procedural fairness and natural justice, as it proceeded with a hearing of the appeal in the Appellant’s absence. The Respondent therefore consents to this appeal being remitted to the General Division for a hearing de novo on the ground that the Appellant may not have benefited from a full opportunity to present her case. I agree with these submissions.
Disposition
[8] The appeal is allowed as it is unclear whether the Appellant ever received notice of the (rescheduled) hearing and as the General Division proceeded with hearing the appeal in her absence. The matter is remitted to a different member of the General Division for a redetermination.