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Reasons and decision
Introduction
[1] On February 3, 2017, the General Division of the Social Security Tribunal of Canada (Tribunal) concluded that this appeal did not raise a constitutional question that met the requirements of paragraph 20(1)(a) of the Social Security Tribunal Regulations (Regulations). The General Division had determined the following:
- a) The Applicant did not specify the provisions of the Old Age Security Act (OAS Act) that he wished to contest;
- b) The Applicant [translation] "stated that he wished to contest only the constitutional validity of Bill C-31, which amended the OAS Act, and that he had lost his rights under Bill C-31, chapter 22, article 1 (which refers to the short title)."
File background
[2] The Applicant applied for benefits. The Respondent denied his application initially and upon reconsideration.
[3] In the reconsideration decision dated February 14, 2014, the Respondent gave its reasons:
[translation]
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.
[4] The Applicant had filed an appeal of the reconsideration decision on file, without having a copy of the decision. The Applicant filed a request for access to his personal information in April 2015 and, in May 2015, he received a copy of the decision rendered by the Respondent resulting from the reconsideration dated February 14, 2014.
[5] The Applicant attempted to file an appeal with the General Division from February 21, 2014, to June 22, 2015. On March 2, 2016, the General Division concluded that it could not grant him an extension of time to appeal. The Applicant filed an application requesting leave to appeal to the Appeal Division and the Appeal Division granted leave to appeal. The Respondent consented to the appeal being allowed and to the matter being referred back to the General Division for a decision on the merits.
[6] When the file was returned to the General Division, the Applicant filed a "notice of constitutional question in accordance with paragraph 20(1)(a) of the Social Security Tribunal Regulations" in November 2016. On February 3, 2017, the General Division concluded that the notice did not raise a constitutional question that met the requirements of paragraph 20(1)(a) of the Social Security Tribunal Regulations.
[7] On February 20, 2017, the Applicant filed an application for leave to appeal the General Division decision dated February 3, 2017, with the Appeal Division.
Issue
[8] Does the appeal have a reasonable chance of success?
Law and analysis
[9] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESD Act), “An appeal to the Appeal Division may only be brought if leave to appeal is granted” and “The Appeal Division must either grant or refuse leave to appeal.”
[10] Subsection 58(2) of the DESD Act provides that “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”
[11] According to subsection 58(1) of the DESD Act, the only grounds of appeal are the following:
- a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- 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.
[12] The Tribunal will grant leave to appeal if it is satisfied that the Applicant has demonstrated that at least one of the grounds appeal falls within the aforementioned grounds of appeal and that at least one of those grounds of appeal has a reasonable chance of success.
[13] This means that the Tribunal must be in a position to determine, in accordance with subsection 58(1) of the DESD Act, whether there is a question of law, fact or jurisdiction, or relating to a principle of natural justice, the response to which might justify setting aside the decision under review.
[14] According to his reasons for appeal, the Applicant submits that [translation] "the Respondent must do the exercise imposed under article 1 of the Canadian Charter of Rights and Freedoms." He does not cite subsection 58(1) of the DESD Act and does not specify the subparagraph upon which he relies. However, he tried to explain his reasons for appeal in his application.
[15] The General Division decision dated February 3, 2017, is an interlocutory decision (not a final decision). The Applicant's appeal to the General Division is based on several arguments, and the constitutionality of Bill C-31 is only one of them. To date, the General Division has not rendered a decision on the other issues under appeal.
Should the Appeal Division rule on an interlocutory decision?
[16] Noel v. Canada (Attorney General), 2015 FC 1375, involved a written request filed by the Applicant seeking as relief that a Federal Court of Appeal prothonotary order be declared null and void. The prothonotary order (conditional sentence) was an interlocutory decision. This decision on an application for judicial review comes from a Tribunal file.
[17] The Federal Court, in Noel, cited Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61:
Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews. All of these express the same concept: absent exceptional circumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court. Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.
[18] In this case, the Applicant made a request that the General Division's interlocutory order dated February 3, 2017, be rejected and that [translation] "the Respondent be removed from the constitutional question."
[19] In my opinion, absent exceptional circumstances, the Appeal Division should not interfere in cases of interlocutory orders of the General Division until after they are completed, or until the available, effective remedies are exhausted. The Federal Court's reasoning in Noel is applicable: it is not until the process (of appeal to the General Division) has finished or affords no effective remedy that the case should be put to the Appeal Division.
[20] The present case before the General Division remains incomplete. The General Division did not render a decision on the merits of the case. Furthermore, there are effective remedies available that have not been exhausted: Specifically, the Applicant can file another notice of constitutional question in accordance with paragraph 20(1)(a) of the Social Security Tribunal Regulations.
Previous decisions of the Appeal Division
[21] The Tribunal's Appeal Division decided on the issue of whether it should accept an appeal of an interlocutory decision of the General Division. There are two lines of reasoning:
- There should be no immediate appeal of an interlocutory decision, except in exceptional circumstances: see A.N. v. Minister of Employment and Social Development, 2015 SSTAD 280 and W.F. v. Canada Employment Insurance Commission, 2016 CanLII 99732 (SST).
- Jurisprudence has not determined that an interlocutory decision of the Tribunal cannot be appealed to the General Division: see Minister of Employment and Social Development v. P.F., AD-16-1042.
[22] The Federal Court of Appeal noted, in Canada (Attorney General) v. Bri-Chem Supply Ltd., 2016 FCA 257 that: "while it is true that later tribunal panels are not bound by the decisions of earlier tribunal panels, it is equally true that later panels should not depart from the decisions of earlier panels unless there is a good reason."
[23] This decision must deviate from one of the previous decisions of the Appeal Division (noted in paragraph 21, above).
[24] For the reasons noted above, I conclude that, absent exceptional circumstances, the Appeal Division should not interfere in cases of interlocutory orders of the General Division until after they are completed, or until the available, effective remedies are exhausted. I find that there are no exceptional circumstances making it possible to interfere in this case of an interlocutory order of the General Division. While the superior courts may not prohibit the Appeal Division from ruling on an interlocutory decision of the General Division, there are no exceptional circumstances in this case allowing it to interfere.
[25] In the file before the General Division, the Applicant may file another notice of constitutional question in accordance with paragraph 20(1)(a) of the Social Security Tribunal Regulations.
[26] The General Division determined that the Applicant [translation] "did not specify the provisions of the Old Age Security Act (OAS Act) that he wished to contest." The Applicant indicated that he wished to contest the constitutional validity of Bill C-31, which amended the OAS Act, but this bill amended 10 articles of the OAS Act. If the Applicant contests subsection 5(3) of the OAS Act—"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 [...]"—the Applicant can specify that and meet the requirements of paragraph 20(1)(a) of the Social Security Tribunal Regulations in another notice of constitutional question.
[27] In case of an error in my decision not to rule on an interlocutory decision of the General Division, I note that the General Division did not err when it determined that the Applicant's notice did not raise a constitutional question that meets the requirements. The Applicant's notice, of November 8, 2016, did not meet the requirements under paragraph 20(1)(a) of the Social Security Tribunal Regulations.
[28] For these reasons, the appeal has no reasonable chance of success.
Conclusion
[29] Leave to appeal is refused.