On this page
Reasons and decision
Introduction
[1] On October 1, 2015, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that a disability pension under the Canada Pension Plan was payable to the Respondent. The Appellant sought leave to appeal this decision on the basis that its submissions had not been considered by the General Division. Leave to appeal was granted to the Appellant on September 13, 2016.
[2] In accordance with s.42 of the Social Security Tribunal Regulations (Regulations), the Appellant and the Respondent were given 45 days after September 13, 2016 to file submissions or file a notice stating that they have no submissions to file. The Appellant filed submissions on October 28, 2016, supplementing earlier submissions of January 20, 2016. The Respondent did not provide submissions in respect of this appeal.
[3] This appeal is proceeding on the record, pursuant to s. 43(a) of the Regulations, for the following reasons:
- a) There are no gaps in the file or need for clarification;
- b) Both parties have had an opportunity to provide written submissions to the Appeal Division; and
- c) Section 3 of the Regulations requires the Tribunal to proceed as informally and quickly as circumstances, fairness and natural justice permit.
Issue
[4] The issue in this appeal is whether the General Division failed to observe a principle of natural justice.
Analysis
[5] The first ground of appeal set out in s. 58(1)(a) of the Department of Employment and Social Development Act (DESDA) is that “the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction.”
[6] Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93, held that the standards of review applicable to judicial review of decisions made by administrative decision-makers are not to be automatically applied by specialized administrative appeal bodies. Rather, such appellate bodies are to apply the grounds of appeal established within their home statutes. (See also Canada (Attorney General) v. Jean, 2015 FCA 242.) In this context, I agree with the Appellant’s submission that, based on the unambiguous wording of s. 58(1)(a) of the DESDA, no deference is owed to the General Division on questions of natural justice.
[7] The Respondent initiated an appeal to the General Division in June 2013. While the parties would ordinarily have had until June 2014 to file evidence and submissions, the General Division advised in April 2014 that, due to systemic delays, these materials could continue to be filed “until further notice.” Subsequently, a Notice of Hearing dated May 22, 2015 indicated that additional documents or submissions could be filed until July 15, 2015. An in-person hearing was held on September 15, 2015. The Appellant did not attend that hearing.
[8] In her decision of October 1, 2015, the General Division member stated, at paragraph 25, “The Respondent [the Appellant in the present appeal] made no submissions to the Tribunal.”
[9] Documents now before the Appeal Division include submissions to the General Division dated March 13, 2015, correspondence from the General Division dated January 12, 2016, and an affidavit of October 28, 2016 explaining the Appellant’s internal file notes. I have admitted these documents as new evidence because they are directly relevant to the issue at hand, i.e., whether there was a breach of natural justice in relation to submissions before the General Division. I note that, while the Appeal Division normally considers only the material that was before the General Division, new evidence may be admitted with respect to issues of natural justice (for analogous reasoning, see Ontario Assn. of Architects v. Assn. of Architectural Technologists of Ontario, 2002 FCA 218).
[10] These new documents collectively confirm that the Appellant attempted to file submissions of March 13, 2015 with the General Division, through secure channels on March 30, 2015. In particular, correspondence from the General Division’s Income Security Operations Manager dated January 12, 2016 states that the General Division received “an email dated March 30, 2015, from the Minister advising that a submission was transferred to the document exchange drive”, but the submission itself was not attached or added to the appeal file.
[11] A party’s right to be heard is a cardinal principle of natural justice, and includes review and consideration of written submissions: Caceres v. Canada (Minister of Citizenship and Immigration), 2004 FC 843. It is a failure of natural justice when, through error, submissions do not make their way from an adjudicative body’s office to the presiding member(s): Vairavanathan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1025 (FC).
[12] The Appellant was a party to the Respondent’s appeal to the General Division, pursuant to s. 1(1) of the Regulations. The Appellant’s attempt to file submissions on March 30, 2015, was well within the deadlines established by the General Division. While the member may not have been aware of this attempt, the General Division was aware and ought to have taken steps to determine the Appellant’s intention prior to proceeding. In the result, the member, through no fault of her own, did not receive or consider a party’s written submissions prior to reaching her decision on the appeal on October 1, 2015. I agree with the Appellant that the General Division thereby failed to observe a principle of nature justice.
Conclusion
[13] The appeal is allowed. Pursuant to s. 59(1) of the DESDA, the matter is referred back to the General Division for redetermination of the Respondent’s appeal, by a different member. The appeal may proceed on the basis of the record, the recording of the General Division hearing, the Appellant’s written submissions of March 13, 2015, and any reply submissions that the Respondent wishes to file. Any further hearing is at the discretion of the General Division member.