Old Age Security (OAS) and Guaranteed Income Supplement (GIS)

Reasons and decision

Introduction

[1] The Appellant applied for a Guaranteed Income Supplement (GIS) on behalf of the late S. L. The Respondent denied the application on the basis that it had been made after the death of the claimant (S. L.). The Appellant made a request for reconsideration. The Respondent advised the Appellant, by letter dated June 3, 2013, that the initial decision was being maintained.

[2] The Appellant appealed to the General Division of the Social Security Tribunal of Canada (Tribunal) in June 2015. It requested that the Tribunal allow its appeal because the claimant had been incapable of taking care of her own affairs since March 2012; she had not been receiving the GIS, but her family did not realize this until after her incapacity, and the Respondent received the GIS application three weeks after the claimant’s death.

[3] On February 27, 2016, the General Division summarily dismissed the appeal on the basis that the GIS application, filed on the claimant’s behalf, had been received (by the Respondent) after her death and that the Old Age Security Act (OAS Act) does not permit post-mortem applications for the GIS.

[4] The Appellant filed an application to appeal to the Tribunal’s Appeal Division on June 10, 2016. The reasons for appeal can be summarized as follows:

1. The claimant was incapable of applying for the GIS herself.
2. The Canada Revenue Agency neglected to provide, in a timely manner, the information needed for her designate to submit the GIS application on her behalf.
3. By the time the necessary information was collected, the claimant had passed away.

[5] The Respondent did not file submissions before the Appeal Division.

[6] This appeal proceeded on the basis of the record for the following reasons:

1. the Appeal Division member had determined that no further hearing was required; and
2. the requirement under the Social Security Tribunal Regulations to proceed as informally and as quickly as circumstances, fairness and natural justice permit.

Issue

[7] The Appeal Division must decide whether it should dismiss the appeal, render the decision that the General Division should have rendered, refer the case back to the General Division, or confirm, reverse or modify the General Division’s decision.

Law and analysis

[8] The Appellant is appealing a decision dated May 1, 2016, whereby the General Division summarily dismissed its appeal on the basis that it was satisfied that the appeal did not have a reasonable chance of success.

[9] No leave to appeal is necessary in the case of an appeal brought under subsection 53(3) of the Department of Employment and Social Development Act (DESD Act), as there is an appeal as of right when dealing with a summary dismissal from the General Division. Because no further hearing is required, this appeal before the Appeal Division is proceeding pursuant to paragraph 37(a) of the Social Security Tribunal Regulations.

[10] Subsection 58(1) of the DESD Act sets out the grounds of appeal as follows:

1. a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. c) the General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[11] The relevant provisions of the OAS Act, pertaining to incapacity and death of a claimant, are set out in sections 28 and 29.

Legal test for summary dismissal

[12] Subsection 53(1) of the DESD Act allows the General Division to summarily dismiss an appeal if it is satisfied that the appeal has no reasonable chance of success.

[13] Pursuant to subsection 59(1) of the DESD Act, the Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate, or it may confirm, rescind or vary the General Division’s decision in whole or in part.

[14] Here, the General Division correctly stated the legislative basis upon which it might summarily dismiss the appeal, by citing subsection 53(1) of the DESD Act at paragraph 3 of its decision.

[15] However, it is insufficient to simply cite the wording related to a summary dismissal set out in subsection 53(1) of the DESD Act without properly applying it. After identifying the legislative basis, the General Division must correctly identify the legal test and apply the law to the facts.

[16] At paragraph 2 of its decision, the General Division asked “[…] whether the appeal should be summarily dismissed.”

[17] The General Division decision does not state what legal test was applied to arrive at its conclusion to summarily dismiss the appeal.

The General Division’s decision

[18] While the General Division did not state the legal test it applied, it did explain the basis upon which it summarily dismissed the appeal:

[31]  The evidence indicates that S. L. passed away on February 26, 2013 and that the GIS applications for the payment periods of 2011/2012 and 2012/2013 were submitted on March 18, 2013. The applications were made post-mortem. Although subsection 29(1) of the OAS Act permits post-mortem applications for the OAS pension, it does not permit post-mortem applications for the GIS. This has been the law since May 3, 2007. As a result, the Tribunal finds that subsection 29(1) of the OAS Act is not helpful to the Appellant.

[32] The Tribunal understands from the Respondent’s submissions that the Respondent will sometimes accept a post-mortem application if the application was signed by the deceased client and if the application was received by the Respondent within a reasonable time following the client’s death. This practice is based on policy that has been adopted by the Respondent. The Tribunal does not have the jurisdiction to widen the Respondent’s policy or to implement policies of its own. The Tribunal must interpret and apply the provisions as they are set out in the OAS Act.

[33] The Tribunal understands from the appeal correspondence that the GIS applications were delayed due to difficulties in obtaining the necessary tax information from the CRA. While the Tribunal sympathises with the estate, this is not a ground upon which the Tribunal may award payment of the GIS. The OAS Act does not set out an exception for applications that are delayed as a result of an applicant’s difficulty in obtaining the information necessary to complete the application.

[34] The Appellant’s representative indicated in his appeal correspondence that the reason why the late S. L. may not have applied for the GIS after reaching age 65 is because she suffered from a disability that affected her ability to manage her affairs. With this argument in mind, the Tribunal reviewed the incapacity provision set out in section 28.1 of the OAS Act. Unfortunately, the Tribunal was unable to find this provision to be of assistance to the Appellant.

[35] The incapacity provision allows an application to be deemed to have been received earlier than when it was actually received provided it can be shown that the person to whom the application relates was incapable of forming or expressing an intention to apply for the benefit earlier than when the application was received. The language of section 28.1 of the OAS Act is such that it contemplates the incapacitated person being alive at the time of application. The issue of whether an estate can rely on an incapacity argument has previously been considered by the Pension Appeals Board (PAB) and the PAB held that the incapacity provision could not be invoked following the death of the person to whom the incapacity relates (MHRD v. Kirby (November 27, 2001), CP 17189 (PAB)).

[36] The Appellant’s representative did not raise any arguments for why the incapacity provision should apply to an estate or for why the Kirby decision should not apply to the facts of this case. In the absence of any such argument, the Tribunal agrees with the findings in Kirby and applies the principle of that case to this appeal.

[37]  For the reasons set out above, the Tribunal finds that this appeal does not have a reasonable chance of success.

[19] Because the General Division member did not identify the legal test applicable to a summary dismissal and did not apply that legal test to the facts, the General Division decision is based on an error of law.

[20] The legal test applicable to a summary dismissal is the first question that needs to be answered. The question of whether there was an error of law (or another type of error) in the Respondent’s decision on the specific issues would follow.

Invoking incapacity provisions in OAS act following the claimant’s death

[21] The General Division noted that the Appellant had invoked the incapacity provision in the OAS Act and that the incapacity provision allows an application to be deemed to have been received earlier than when it was actually received, provided it can be shown that the person to whom the application relates had been incapable of forming or expressing an intention to apply for the benefit earlier than when the application was received.

[22] The General Division concluded the following:

1. The language of section 28.1 of the OAS Act is such that it contemplates the incapacitated person being alive at the time of application; and
2. The issue of whether an estate can rely on an incapacity argument has previously been considered by the Pension Appeals Board (PAB), and the PAB held that the incapacity provision could not be invoked following the death of the person to whom the incapacity relates. This was based on MHRD v. Kirby (November 27, 2001), CP 17189 (PAB).

[23] I note that Kirby was an application for Canada Pension Plan retirement benefits and not for benefits under the OAS Act. The benefits conferred in the two Acts of Parliament differ, as do the incapacity provisions therein. Therefore, the General Division erred in law by applying the obiter dicta in Kirby to the present matter.

[24] As for PAB decisions, while they may be persuasive, they are not binding on the Tribunal. Federal Court of Appeal jurisprudence is binding, but there appears to be none on this specific point.

[25] Given the error of law on the preliminary question of the legal test applicable to summary dismissals and the error of law in relying on Kirby as settled law that incapacity cannot be invoked following the death of the claimant for all matters of OAS, the Appeal Division is required to make its own analysis and decide whether it should dismiss the appeal, render the decision that the General Division should have rendered, refer the case back to the General Division, or confirm, reverse or modify the decision: Housen v. Nikolaisen, [2002] 2 SCR 235, 2002 SCC 33, at paragraph 8, and subsection 59(1) of the DESD Act.

Application of Legal Test for Summary Dismissal

[26] Although “no reasonable chance of success” was not further defined in the DESD Act for the purposes of the interpretation of subsection 53(1) of the DESD Act, the Tribunal notes that it is a concept that has been used in other areas of law and that has been the subject of previous Appeal Division decisions.

[27] There appear to be three lines of cases in previous Appeal Division decisions on appeals of summary dismissals by the General Division, namely:

1. AD-13-825 (J .S. v Canada Employment Insurance Commission, 2015 SSTAD715); AD-14-131 (C. D. v Canada Employment Insurance Commission, 2015 SSTAD594); AD-14-310 (M. C. v Canada Employment Insurance Commission, 2015 SSTAD237); AD-15-74 (J. C. v Minister of Employment and Social Development, 2015 SSTAD596). The legal test applied was: Is it plain and obvious on the face of the record that the appeal is bound to fail, regardless of the evidence or arguments that could be presented at a hearing? This was the test stated in the Federal Court of Appeal decisions in Lessard-Gauvin v. Canada (Attorney General), 2013 FCA 147; Sellathurai v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 1; and Breslaw v. Canada (Attorney General), 2004 FCA 264.
2. AD-15-236 (C. S. v Minister of Employment and Social Development, 2015 SSTAD 974); AD-15-297 (A. P. v Minister of Employment and Social Development, 2015 SSTAD973); and AD-15-401 (A. A. v Minister of Employment and Social Development, 2015 SSTAD 1178). The Appeal Division has applied a differently articulated legal test: whether there is a “triable issue” and whether there is any merit to the claim using the language “utterly hopeless” and “weak” case in distinguishing whether an appeal was appropriate for a summary dismissal. As long as there was an adequate factual foundation to support the appeal and as long as the outcome was not “manifestly clear,” then the matter would not be appropriate for a summary dismissal. A weak case would not be appropriate for a summary dismissal, as it necessarily involves assessing the merits of the case, examining the evidence and assigning weight to it.
3. AD-15-216 (K. B. v Minister of Employment and Social Development, 2015 SSTAD 929). The Appeal Division did not articulate a legal test beyond citing subsection 53(1) of the DESD Act.

[28] I find that the application of the two tests cited in paragraph 27 of this decision leads to the following result in the present case:

1. It is not plain and obvious on the face of the record that the appeal is bound to fail, regardless of the evidence or arguments that could be presented at a hearing.
2. It is also not clear that this is an “utterly hopeless” case, as it does involve either assessing the merits of the case or examining the evidence.

[29] Subsection 29(1) of the OAS Act reads “[d]espite anything in this Act, an application for a pension that would be payable …” (emphasis added). A “pension” is defined, in section 2, as “a monthly pension authorized to be paid under Part I”. The GIS is not a monthly pension under Part I; it is an “income supplement authorized to be paid under Part II” of the OAS Act. Therefore subsection 29(1) of the OAS Act, which allows for an application for a pension by an estate, does not permit an application for the GIS post-mortem.

[30] Although it is settled law that subsection 29(1) of the OAS Act does not permit post-mortem GIS applications, it is not settled law that incapacity cannot be invoked following the claimant’s death for all matters under the OAS Act and, specifically, in the case of a GIS application.

[31] Section 28.1 of the OAS Act sets out the provisions applicable in situations of incapacity of a claimant. Subsection 28.1(1) reads “[w]here an application for a benefit is made …” The word “benefit” means “a pension, supplement or allowance” pursuant to section 2 of the OAS Act. The language of section 28.1 does not exclude an application for the GIS expressly.

[32] Therefore, even if an application for GIS cannot be made post-mortem, in the case of incapacity, the incapacity provisions, if applicable, deem the application to have been made at an earlier date. If the claimant’s application was deemed to have been made at a date earlier than her death, then the application is deemed not to have been made post-mortem.

[33] On this issue alone, it is not plain and obvious on the face of the record that this appeal is bound to fail, regardless of the evidence or arguments that could be presented at a hearing. Deciding on this issue involves an assessment of the merits of the case and/or an examination of the evidence.

[34] After reviewing the Appellant’s notice of appeal, the submissions, the General Division’s record and decision, the Appeal Division’s previous decisions relating to summary dismissals, and after applying the legal test applicable to a summary dismissal, I allow the appeal.

Directions to the General Division

[35] This matter will be referred back to the General Division with the directions provided below.

[36] The background information includes the following:

1. Due to the 2007 amendments to the OAS Act, post-mortem GIS applications received on or after May 3, 2007, were denied by the Respondent.
2. The Appellant in this matter argues that the claimant’s medical condition rendered her incapable of looking after her own affairs since at least March 2012. She was diagnosed with Amyotrophic Lateral Sclerosis in March 2012, was incapable of taking care of her own affairs by that time, was hospitalized by August 2012 and needed to be placed in long-term care in December 2012. Her son was appointed her power of attorney in May 2012, but it was only after the claimant was placed in long-term care that he became aware that she had not been receiving the GIS, and he began the process of applying on her behalf. This required obtaining information from the Canada Revenue Agency, the Respondent and other sources, a process that delayed the filing of a GIS application. The claimant’s spouse had had Alzheimer’s since 2004 and the claimant had been caring for her spouse until she could no longer do so. The evidence relating to these circumstances may need to be reviewed and weighed by the trier of fact.
3. The Appellant filed an application for the GIS, which the Respondent received on March 17, 2013. The claimant had passed away on February 26, 2013.
4. The Appellant argues that the Respondent has stated that an application for GIS is not treated as post-mortem, if it is filed within a reasonable period of time following the death. The Appellant filed the application as soon as it could, and the Respondent received it 19 days after the claimant’s death. The Appellant believes that this was within a reasonable period of time.
5. The Appellant also argues that the claimant was incapable of forming or expressing an intention to make an application for the GIS since March 2012 (through to her death) and it relies on this incapacity in addition to the other factors (such as the delay in response from the Canada Revenue Agency, the family circumstances, and its best efforts to make the application as soon as possible).

[37] As discussed above, this appeal is not appropriate for a summary dismissal. The General Division is directed to:

1. determine whether further submissions from the parties are needed;
2. determine what kind of hearing is required; and
3. send a notice of hearing to the parties.

[38] The legal issues that the General Division must determine include, but are not limited to:

1. whether the GIS application was filed “within a reasonable period of time following the death” of the claimant such that the Respondent could “not consider it to have been made post-mortem.”
2. whether the incapacity provisions in the OAS Act (section 28.1) are applicable to:
   1. an application for GIS generally; and
   2. an application for GIS made post-mortem.
      and
3. if the incapacity provisions are applicable, whether the claimant was “incapable” pursuant to section 28.1 of the OAS Act.

Conclusion

[39] The appeal is allowed, and the matter will be referred back to the Tribunal’s General Division for reconsideration in accordance with the reasons and the directions in this decision.