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

Reasons and decision

Introduction

[1] The Appellant applied for an Old Age Security (OAS) pension in November 2012. She had turned 65 in April 2011 and only applied for a pension in November 2012 because she had misunderstood the rules of OAS pension applications.

[2] The Respondent approved the pension as of November 2011, with payments to start in December 2011.

[3] The Appellant requested a reconsideration of the Respondent’s decision. The Respondent advised the Appellant, by letter dated July 26, 2013, that “we maintain our original decision to deny additional retroactive payments beyond eleven months.” The reconsideration decision stated, among other things, that “[p]ayment of retroactive Old Age Security benefits can be made for up to eleven months from the date we receive your application […]”

[4] The Appellant appealed that decision to the General Division of the Social Security Tribunal of Canada (Tribunal) in October 2013. She requested that the Tribunal allow her appeal because she had been unaware that she could collect an OAS pension while she was still working and she had applied for the pension only when she was advised by a friend that she could collect these benefits.

[5] On February 17, 2016, the General Division summarily dismissed the appeal on the basis that the Appellant had received the maximum retroactivity permitted by the OAS Act and that the “Tribunal cannot use the principles of equity or consider extenuating circumstances, such as misunderstanding or financial hardship, to grant more retroactivity than is prescribed by the OAS Act.”

[6] The Appellant filed a letter on October 20, 2016, stating that she wished to appeal the General Division decision. The Tribunal treated this document as an incomplete notice of appeal (NOA) to the Tribunal’s Appeal Division. By letter dated October 28, 2016, the Tribunal specified what information was required to complete the NOA.

[7] The Appellant replied by letter received by the Tribunal on November 3, 2016, attaching a copy of the General Division decision and an affidavit stating her reasons for appeal. The Appellant also filed a letter received on December 9, 2016, adding additional reasons for appeal.

[8] The Appellant’s reasons for appeal can be summarized as follows:

1. She worked as a cook and was unfamiliar with the procedure for applying for an OAS pension.
2. She was misinformed by people at work that she could not apply for this pension while she was working.
3. By the time she realized that she could apply, 17 months had passed.
4. She was approved for the pension but only received back payments for 11 months.
5. She did not receive anything from the Respondent advising her that she was eligible for an OAS pension upon turning 65.
6. Losing six months of pension is causing her great hardship.
7. The General Division made errors as set out in subsection 58(1) of the Department of Employment and Social Development Act (DESD Act).

[9] The Respondent did not file submissions before the Appeal Division. Its submissions before the General Division are in the appeal record and include the following arguments:

1. The OAS Act provides for a maximum one-year period of retroactive payments.
2. The Applicant applied for the OAS pension on November 23, 2012; therefore, pursuant to paragraph 8(2)(a) of the OAS Act, the earliest her application could be approved was one year prior to the application date, or November 23, 2011.
3. The earliest effective date of payment was December 2011, the month following the date of approval pursuant to subsection 8(1) of the OAS Act.

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

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

Issue

[11] 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

[12] The Appellant is appealing a decision dated February 17, 2016, whereby the General Division summarily dismissed her appeal on the basis that it was satisfied that the appeal did not have a reasonable chance of success.

[13] No leave to appeal is necessary in the case of an appeal brought under subsection 53(3) of the 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.

[14] 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.

[15] The relevant OAS provisions are subsections 5(1), 8(1) and 8(2) of the OAS Act and subsection 5(2) of the OAS Regulations

Legal test for summary dismissal

[16] 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.

[17] 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.

[18] 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.

[19] 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 then apply the law to the facts.

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

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

The general division’s decision

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

[13] The OAS Act sets out the limits on payment of the pension, as described above. They apply to the Appellant’s situation as follows:

1. a) The date that is one year before the day the Appellant’s application  was received was November 23, 2011.
2. b) The day the Appellant turned 65 was April 13, 2011.
3. c) The day the Appellant qualified for the pension under the OAS Act was April 13, 2011.
4. d) The Appellant specified in writing that she wanted her pension to start as soon as she qualified. The month immediately before she qualified was March 2011.

[14] The latest of those dates is November 23, 2011. In accordance with subsection 8(2) of the OAS Act and subsection 5(2) of the OAS Regulations, the effective date of approval of the Appellant’s application was November 2011. According to subsection 8(1) of the OAS Act, payment of the pension started as of December 2011, the month after the application was deemed to have been approved.

[15] The Appellant has received the maximum retroactivity permitted by the OAS Act.

[16] 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 OAS Act. The Tribunal cannot use the principles of equity or consider extenuating circumstances, such as misunderstanding or financial hardship, to grant more retroactivity than is prescribed by the OAS Act.

[17] Accordingly, the Tribunal finds that the appeal has no reasonable chance of success.

[23] 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.

[24] 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 in law (or another type of error) in the Respondent’s decision on the specific issues would follow.

[25] Given the General Division’s error of law on the preliminary question of the legal test applicable to summary dismissals, the Appeal Division is required to conduct 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 the General Division erred by neither identifying nor applying the applicable legal test, paragraphs 13 to 16 of the General Division decision are correct, and I agree with the findings stated therein.

[27] The Appellant takes issue with not receiving six months of OAS pension benefits, which she feels are owed to her because she became eligible upon turning 65.

[28] 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, it is a concept that has been used in other areas of law and that has been the subject of previous Appeal Division decisions.

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

1. J. S. v. Canada Employment Insurance Commission, 2015 SSTAD 715; C. D. v. Canada Employment Insurance Commission, 2015 SSTAD 594; M. C. v. Canada Employment Insurance Commission, 2015 SSTAD 237; and J. C. v. Minister of Employment and Social Development, 2015 SSTAD 596. The following legal test was applied: 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 c. 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. C. S. v. Minister of Employment and Social Development, 2015 SSTAD 974; A. P. v. Minister of Employment and Social Development, 2015 SSTAD 973; and A. A. v. Minister of Employment and Social Development, 2015 SSTAD 1178. In these decisions, the Appeal Division applied a differently articulated legal test: whether there is a “triable issue” and whether there is any merit to the claim using the language of “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 be inappropriate 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. K. B. v. Minister of Employment and Social Development, 2015 SSTAD 929. In this decision, beyond citing subsection 53(1) of the DESD Act, the Appeal Division did not articulate a legal test.

[30] I find that the application of the two tests cited in paragraphs 29 a) and b) of this decision leads to the same result in the present case—the appeal has no reasonable chance of success.  It is 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. It is also clear that this is not a “weak” case but rather an “utterly hopeless” one, as it does not involve assessing the merits of the case or examining the evidence.

[31] Neither the Tribunal’s General Division nor its Appeal Division can vary the legislative provisions of the OAS Act.

[32] According to the OAS Act, the maximum period of retroactive payments is one year. No OAS pension may be approved earlier than 12 months prior to the date of receipt of the application, and payment may begin no earlier than the month following the date of application.

[33] The operation of subsections 5(1), 8(1) and 8(2) of the OAS Act and subsection 5(2) of the OAS Regulations is determinative of this appeal.

[34] The Appellant has received the maximum retroactivity possible pursuant to the OAS Act.

[35] After reviewing the Appellant’s notice of appeal and her correspondence, submissions of the parties, the General Division’s record, its decision and the Appeal Division’s previous decisions relating to summary dismissals, as well as after applying the legal test applicable to a summary dismissal, I hereby dismiss the appeal.

Conclusion

[36] The appeal is dismissed.