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Reasons and decision
Background
[1] On September 4, 2013 the Respondent advised the Appellant that his Old Age Security (OAS) pension and Guaranteed Income Supplement (GIS) would be suspended because, according to information received from Correctional Service Canada (CSC), he was incarcerated on August 13, 2013 (GD6-15 to 16). On May 20, 2014 the Respondent maintained this decision upon reconsideration, explaining that:
We limit the payment of Old Age Security benefits to individuals who are incarcerated due to a sentence of imprisonment of two years or more in a federal penitentiary or for more than 90 days in a provincial correctional facility where an Information Sharing Agreement has been negotiated.
Because you were incarcerated, you are not entitled to receive payment for the months of your incarceration, with the exception of the month of incarceration and the month of release. Therefore, you cannot receive payment.
(GD6-7 to 8)
[2] On June 11, 2014 the Social Security Tribunal of Canada (the Tribunal) received the Appellant’s Notice of Appeal (GD1-1).
[3] In accordance with its interlocutory decision of June 27, 2016, the Tribunal found that the Appellant complied with paragraph 20(1)(a) of the Social Security Tribunal Regulations (SST Regulations), and the appeal proceeded as a constitutional appeal. The Appellant was ordered to file submissions and supporting evidence on or before September 1, 2016. He was advised that failure to do so could result in the appeal proceeding as a regular appeal in which case he would be precluded from raising constitutional arguments (GD14).
[4] The Tribunal issued another interlocutory decision on December 5, 2016, which explained what happened next:
Further to the Tribunal’s Interlocutory Order dated June 27, 2016 (the June 2016 Order), the Appellant had until September 1, 2016 to file his Charter record.
[…]
The Appellant did not file his Charter record by September 1, 2016, contrary to the June 2016 Order. On October 5, 2016 he informed the Tribunal by letter that he “will not be submitting any further documentation […] in respect to my constitutional challenge”. He also informed that he had no access to a computer, as he was being held in a segregation unit (GD20). In another letter received by the Tribunal on October 11, 2016, the Appellant discussed his health issues, and reiterated that he was being held in segregation (GD21). On October 12, 2016 the Tribunal requested clarification from the Appellant as to whether he sought an extension to file his Charter record or confirm his advice that he does not desire to file any further material regarding his constitutional challenge. The Appellant was asked to respond at his “soonest available opportunity.” (GD22)
By November 15, 2016 the Appellant had not responded to the Tribunal’s October 12, 2016 letter. On November 15, 2016 the Tribunal sent a follow up letter to the Appellant, requesting he respond by December 1, 2016 (GD23). This letter was delivered and signed for receipt on November 21, 2016, according to the Tribunal’s tracking record.
[5] In accordance with the December 5, 2016 interlocutory decision, it was ordered that the appeal would proceed as a regular appeal and that the Appellant could no longer raise his constitutional challenge.
[6] On December 9, 2016 the Tribunal sent a letter to the Appellant expressing its intention to summarily dismiss his appeal. The Appellant was given until January 6, 2017 to file submissions explaining why his appeal should not be summarily dismissed, and why it had a reasonable chance of success (GD0A).
[7] On December 20, 2016, and further to a notice of address change (GD24), the Tribunal re-sent the Appellant the December 5, 2016 interlocutory decision and order, as well as its December 9, 2016 letter, amongst documents GD1 to GD24, inclusive (GD25).
[8] On January 9, 2017, the Tribunal received a letter from the Appellant dated December 30, 2016 (GD26). The Appellant’s letter informed that he referred the Tribunal’s December 5, 2016 interlocutory order to the Supreme Court of Canada. The Appellant’s letter did not contain any submission explaining why he thought his appeal had a reasonable chance of success (in response to the Tribunal’s December 9, 2016 letter). The letter also failed to provide the information requested in the Tribunal’s October 12, 2016 letter.
Issue
[9] The Tribunal must decide whether the appeal should be summarily dismissed.
The law
[10] Subsection 53(1) of the Department of Employment and Social Development Act (DESD Act) states that the General Division must summarily dismiss an appeal if satisfied that it has no reasonable chance of success. Subsection 53(3) of the DESD Act states that the Appellant may appeal the summary dismissal decision to the Tribunal’s Appeal Division. Subsection 56(2) of the DESD Act states that leave from the Appeal Division is not required to appeal a summary dismissal decision to the Appeal Division. Otherwise, any decision of the General Division may be appealed to the Appeal Division, if leave is granted (DESD Act sections 55 and 56(1)).
[11] Section 22 of the SST Regulations states that before summarily dismissing an appeal, the General Division must give notice in writing to the Appellant and allow the Appellant a reasonable period of time to make submissions.
[12] An important change to the Old Age Security Act (OASA) took effect on January 1, 2011. Specifically, subsection 5(3) of the OASA stipulated that the OAS pension, Guaranteed Income Supplement and Allowance were no longer payable during periods of incarceration. Subsection 5(3) reads:
Incarcerated persons
(3) No pension may be paid in respect of a period of incarceration -exclusive of the first month of that period- to a person who is subject to a sentence of imprisonment
(a) that is to be served in a penitentiary by virtue of any Act of Parliament; or
(b) that exceeds 90 days and is to be served in a prison, as defined in subsection 2(1) of the Prisons and Reformatories Act, if the government of the province in which the prison is located has entered into an agreement under section 41 of the Department of Employment and Social Development Act.
Evidence
[13] The undisputed evidence is that the Appellant was incarcerated in August 2013 and that the Respondent suspended his OAS pension and GIS effective September 2013. A CSC data sheet confirms the Appellant’s incarcerated status (GD6-27).
Submissions
[14] The Appellant submitted that his OAS pension and GIS should be re-instated on compassionate grounds. He described suffering various health issues, including prostate cancer, and financial difficulties (GD6-27; GD1-1). The Appellant also informed that he referred this matter to the Supreme Court of Canada.
[15] The Respondent submitted that the Appellant is not entitled to payment of his OAS pension and GIS for the months of his incarceration, with the exception of the month of incarceration and the month of release.
Analysis
[16] In compliance with section 22 of the SST Regulations, the Appellant was given notice in writing of the intent to summarily dismiss the appeal and was allowed a reasonable period of time to make submissions.
[17] In the present appeal, the Appellant was incarcerated in August 2013. This is not disputed. The Respondent suspended payment of his OAS pension and GIS effective September 2013. The Tribunal finds that this was done in accordance with subsection 5(3) of the OASA.
[18] The Tribunal is created by legislation and, as such, it has only the powers granted to it by its governing statute. The Tribunal is required to interpret and apply the provisions as they are set out in the OASA. For these reasons, it cannot exempt the Appellant from the law on compassionate grounds.
[19] Accordingly, the Tribunal finds that the appeal has no reasonable chance of success.
[20] Finally, the fact that the Appellant may have referred this file to the Supreme Court of Canada to contest a General Division interlocutory decision does not bar the Tribunal from continuing its proceedings. Appeals of the Tribunal’s General Division decisions are to be directed to the Tribunal’s Appeal Division pursuant to sections 55 and 56 of the DESD Act.
Conclusion
[21] The appeal is summarily dismissed.