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 October 2005. He had been in receipt of a CPP retirement pension effective April 2006.

[2] Instead of paying the Appellant a partial OAS pension, the Respondent paid the Appellant a full OAS pension until September 2005. The Respondent informed the Appellant in October 2015 that he had been overpaid by $28,300.28 and asked the Appellant to repay one half of the overpayment, $14,150.14.

[3] The Appellant made a request for reconsideration. The Respondent maintained the original decision.

[4] The Appellant appealed to the General Division of the Social Security Tribunal of Canada (Tribunal) in December 2015.

[5] On November 28, 2016, the General Division summarily dismissed the appeal on the basis that the Tribunal does not have jurisdiction under section 37 of the OAS Act to forgive all or part of an overpayment as a result of an administrative error on the part of the Respondent. It also does not have the power to entertain an appeal of the Minister’s decision made under paragraph 37(4) of the OAS Act.

[6] The Appellant filed an application for leave to appeal to the Tribunal’s Appeal Division on February 14, 2017. As this matter is an appeal from a General Division summary dismissal decision, leave to appeal is not required and the application was treated as a Notice of Appeal. The Appellant provided further information on March 30, 2017. His reasons for appeal can be summarized as follows:

1. The General Division failed to observe a principle of natural justice.
2. The overpayment resulted from an administrative error by the Respondent, and the Respondent is solely responsible for this error.
3. The Respondent paid the wrong amount for 10 years and allowed the overpayment sum to reach an unaffordable amount.

[7] The Respondent did not file submissions before the Appeal Division. The Respondent’s submissions to the General Division argue:

1. The Tribunal does not have the jurisdiction on a matter related to an overpayment amount or its collection schedule.
2. There is no dispute on the fact that the Appellant was not entitled to the amount that he was overpaid.
3. The Respondent made a discretionary decision to decrease the amount of the overpayment that the Appellant is required to remit.
4. The Tribunal does not have the authority to review the Minister’s discretionary decisions.

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

1. the lack of complexity of the issue under appeal;
2. the fact that the Appeal Division Member has determined that no further hearing is required; and
3. the requirement under the Social Security Tribunal Regulations to proceed as informally and as quickly as circumstances, fairness and natural justice permit.

Issue

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

Law and analysis

[10] The Appellant is appealing a decision dated November 28, 2016, whereby the General Division summarily dismissed his appeal on the basis that it was satisfied that the appeal did not have a reasonable chance of success.

[11] 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. Having determined that no further hearing is required, this appeal before the Appeal Division is proceeding pursuant to paragraph 37(a) of the Social Security Tribunal Regulations.

[12] 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.

[13] The Appellant does not dispute any of the factual findings that the General Division made. Rather, he alleges that the result is unfair because the overpayment resulted from an administrative error of the Respondent and that he should not be held responsible for that error.

[14] The relevant provisions of the OAS Act are as follows:

1. a) Subsection 37(1) of the OAS Act states that a person who has received or obtained by cheque or otherwise a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, shall forthwith return the cheque or the amount of the benefit payment, or the excess amount, as the case may be.
2. b) Subsection 37(2) of the OAS Act states that if a person has received or obtained a benefit payment to which the person is not entitled, or a benefit payment in excess of the amount of the benefit payment to which the person is entitled, the amount of the benefit payment or the excess amount, as the case may be, constitutes a debt due to Her Majesty and is recoverable at any time in the Federal Court or any other court of competent jurisdiction or in any other manner provided by the OAS Act.
3. c) Paragraph 37(4)(d) of the OAS Act allows the Minister, in certain circumstances, to remit all or any portion of an overpayment where the Minister is satisfied that the overpayment resulted from erroneous advice or administrative error in the administration of the OAS Act.

Legal test for summary dismissal

[15] 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.

[16] 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 confirm, rescind or vary the General Division decision in whole or in part.

[17] Here, the General Division correctly states the legislative basis upon which it might summarily dismiss the appeal, by citing subsection 53(1) of the DESD Act at paragraph 2 of its decision.

[18] However, it is insufficient to simply recite 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.

[19] The General Division asks the question of “[…] whether the appeal should be summarily dismissed” at paragraph 2 of its decision.

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

General Division decision

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

[22] This appeal results from an unfortunate set of circumstances whereby for almost 10 years the Respondent mistakenly paid the Appellant a full OAS pension rather than the partial pension of 21/40ths that he had elected to receive.

[23] The Appellant has not disputed that he received more money than he was entitled to. Instead, the Appellant appears to disagree with  the Respondent’s decision that he must reimburse one half of the overpayment. His position is largely based on his argument that the overpayment resulted from someone else’s mistake, that he was unaware that he was receiving more money than what he was entitled to, and that  it is not his obligation to calculate and verify that the Respondent was issuing payments in the correct amount. The Respondent indicates that the Appellant should have known that he was receiving more per month than he was entitled to because (1) the Appellant signed a document on March 31, 2006 indicating that he elected to receive a partial pension of 21/40ths at $254.43 per month starting in April 2006; and (2) the Respondent sent the Appellant an award letter on April 12, 2006 indicating that he would receive a monthly pension of $254.43.

[24] The Tribunal need not determine whether the Appellant in fact knew that he was receiving a higher OAS pension than what he was entitled to. First, section 37 of the OAS Act states that a person who has received a benefit payment in excess of the amount of the benefit payment to which the person is entitled shall forthwith return the excess amount. Second, although the Respondent can consider forgiving all or part of an overpayment as a result of an administration error on its part, the Tribunal does not share the same jurisdiction. In this regard,  paragraph 37(4)(d) of the OAS Act permits the Respondent to remit all or a portion of an overpayment, but this provision does not extend that authority to the Tribunal. Moreover, the Federal Court of Appeal has held that the Tribunal does not have the power to entertain an appeal of the Minister’s decision made under paragraph 37(4)(d) of the OAS Act (Canada (Minister of Human Resources Development) v. Tucker, 2003 FCA 278).

[25] The fact that it took the Respondent almost 10 years to recognize the payment error does not change the Tribunal’s jurisdiction  in this appeal. Subsection 23(2) of the OAS Regulations allows the Minister to investigate, at any time, the eligibility of a person to receive a benefit and section 37 of the OAS Act requires pensioners to reimburse overpayments, subject only to discretionary decisions of the Respondent to remit all or a portion of such overpayments.

[26] 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. It does not have the authority to render decisions on grounds of compassion or extenuating circumstances.

[27] For the reasons set out above, the Tribunal finds that the appeal has no reasonable chance of success.

[22] 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.

[23] 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 other error in the Respondent’s decision on the specific issues would follow.

[24] Given the error of law on the preliminary question of the legal test applicable to a summary dismissal, the Appeal Division is required to make its own analysis and decide whether it should dismiss the appeal, give the decision that the General Division should have given, refer the case 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

[25] Despite having erred in not identifying and applying the applicable legal test, paragraphs 24 to 26 of the General Division decision are correct, and I agree with the findings stated in them.

[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 General Division summary dismissals:

1. Examples 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 SSTAD 237); AD-15-74 (J. C. v. Minister of Employment and Social Development, 2015 SSTAD 596). 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 Lessard-Gauvin c. Canada (Attorney General), 2013 FCA 147; Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 1; and Breslaw v. Canada (Attorney General), 2004 FCA 264.
2. Examples 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 SSTAD 973); 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 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 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 disposition, as it necessarily involves assessing the merits of the case and examining the evidence and assigning weight to it.
3. Example 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 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.

[29] Neither the Tribunal’s General Division nor its Appeal Division can “remit all or any portion of an overpayment where […] the overpayment resulted from administration error in the administration of the OAS Act,” no matter the circumstances. Paragraph 37(4)(d) of the OAS Act is clear that this discretion is the Minister’s alone.

[30] The Appellant’s main argument is that it is unfair that he has suffered the consequences of the Respondent’s administrative error.

[31] The operation of paragraph 37(4)(d) is determinative of this appeal. In addition, the Tribunal does not have the jurisdiction to review the Minister’s decisions made under section 37 of the OAS Act: Canada (Minister of Human Resources Development) v. Tucker, 2003 FCA 278.

[32] It is clear from the record that the Appellant has been in receipt of an OAS pension effective April 2006, and that he received overpayment of his pension amounts from May 2006 to September 2015. These amounts were in excess of the amount to which he was entitled, and, although this error was an administrative one on the part of the Respondent, the excess amount is a debt owed. The Respondent has required that the Appellant pay one half of this amount, in consideration that an administrative error in the administration of the OAS Act resulted in the overpayment. Only the Minister has the ability to forgive the overpayment in its entirely, at its discretion. The Respondent has chosen not to do that, and this discretionary decision is not appealable to the Tribunal.

[33] The Tribunal cannot vary legal provisions set out in the OAS Act. Regardless of the evidence or arguments that could be presented at a hearing, the appeal on this issue is bound to fail.

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

Conclusion

[35] The appeal is dismissed.