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Reasons and decision
Introduction
[1] The Appellant applied for an Old Age Security pension in 2013. The Respondent granted her a partial pension of 3/40, based on her residence in Canada from May 2009 to May 2012. The Appellant sought a greater partial pension, based on residence in Canada starting in 2001. She appealed the Respondent’s decision to the Social Security Tribunal of Canada (Tribunal). On November 7, 2016, the Tribunal’s General Division allowed the appeal in part, and decided that the Appellant began to reside in Canada in April 2009. The Appellant requested leave to appeal this decision to the Tribunal’s Appeal Division, which was granted on November 21, 2017.
[2] In a letter dated January 4, 2018, the Respondent conceded that the General Division had failed to consider evidence that supports the Appellant’s legal position, and agreed that the appeal should be allowed and the matter referred back to the General Division for reconsideration before a different Tribunal member.
[3] This appeal was decided on the basis of the written record for the following reasons:
- Pursuant to paragraph 37(a) of the Social Security Tribunal Regulations, the Member has determined that no further hearing is required;
- The Social Security Tribunal Regulations require that the Tribunal proceed as informally and quickly as circumstances, fairness, and natural justice permit;
- The legal issue to be decided is not complex; and
- The Respondent has conceded that the matter should be referred back to the General Division for reconsideration.
Standard of review and analysis
[4] In Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, the Federal Court of Appeal decided that administrative tribunals must look first to their home statutes for guidance in determining their role and what standard of review is to be applied. The Department of Employment and Social Development Act (DESD Act) is the home statute for this Tribunal.
[5] The only grounds of appeal available under the DESD Act are set out in subsection 58(1), namely, that the General Division failed to observe a principle of natural justice or made an error of jurisdiction, made an error of law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[6] Based on the unqualified wording of paragraphs 58(1)(a) and (b) of the DESD Act, no deference is owed to the General Division on questions of natural justice, jurisdiction, or errors of law. Paragraph 58(1)(c) directs the Appeal Division to intervene if 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.” This language suggests that the Appeal Division should intervene only when the General Division bases its decision on an error that is clearly egregious or at odds with the record.
[7] Paragraph 22 of the General Division decision refers to the Federal Court decision in Canada (Minister of Human Resources Development) v. Ding, 2005 FC 76. This decision sets out a number of factors that may be considered to decide whether a person is resident in Canada for the purposes of the Old Age Security Act. Although the decision lists the factors set out in Ding, it does not analyze them. The decision simply states, “Having considered the above factors, the Tribunal finds that the Appellant has not established that she was a resident of Canada before April 2009.” This is an error of law, as it is insufficient to cite a relevant court decision without applying it to the evidence.
Conclusion
[8] The appeal is allowed.
[9] Subsection 59(1) of the DESD Act sets out the remedies the Appeal Division can give. I am satisfied that in this case it is appropriate that the matter be referred back to the General Division for reconsideration. It will be necessary for evidence to be heard and weighed to reach the decision in this matter, and this is the General Division’s mandate.
[10] The Respondent has requested that the matter be reconsidered by a different General Division member. While this may be best in some cases to avoid any possibility of an apprehension of bias, I am not prepared to give this direction to the General Division in this case.