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

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] The Appellant, T. N., is seeking relief from a demand to repay the government more than $13,000 in Guaranteed Income Supplement (GIS) received under the Old Age Security Act (OASA).

[3] In May 2012, Ms. T. N. began receiving a GIS in an amount that was calculated on the basis that she was single. The Respondent, the Minister of Employment and Social Development (Minister), learned from the Canada Revenue Agency that Ms. T. N. had declared in 2012 that she was in a common-law relationship with the Added Party, K. R. The Minister determined that, as of July 2012, Ms. T. N. and Mr. K. R. had been cohabiting in a conjugal relationship since 2011 and were therefore common-law partners, as defined in the OASA. Ms. T. N.’s GIS entitlement was recalculated using the couple’s combined income, which was above the maximum amount allowed for payment of the GIS. As a result, the Minister determined that Ms. T. N. benefitted from an overpayment of $13,189 from July 2012 to June 2015.

[4] Ms. T. N. objected to the repayment demand, but the Minister maintained its decision on reconsideration. In August 2016, Ms. T. N. appealed the Minister’s decision to the General Division of the Social Security Tribunal. In a letter dated August 22, 2017, the General Division advised Ms. T. N. of its intention to summarily dismiss her appeal. In a decision dated October 6, 2017, the General Division summarily dismissed the appeal on the basis that it lacked jurisdiction under section 37 of the OASA to forgive all or part of an overpayment as a result of the Minister’s administrative error.

[5] On November 6, 2017, Ms. T. N. appealed the summary dismissal with the Tribunal’s Appeal Division. Her reasons for appeal can be summarized as follows:

• She is being held responsible for someone else’s error in a situation over which she had no control. It is unfair to demand money from someone who suffers from financial hardship.
• She declared her common-law relationship and a common-law spouse’s income on her income tax return. Service Canada stopped her GIS payments but then resumed them. To this day, no one has ever explained why her payments were started again.

[6] I have decided that an oral hearing is unnecessary and that the appeal will proceed on the basis of the documentary record for the following reasons:

• There are no gaps in the file and there is no need for clarification.
• This form of hearing respects the requirement under paragraph 37(a) of the Social Security Tribunal Regulations to proceed as informally and as quickly as circumstances, fairness, and natural justice permit.

Issues

[7] The issues before me are as follows:

Analysis

[8] 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 (DESDA), as there is an appeal as of right when dealing with a summary dismissal from the General Division.

[9] The only grounds of appeal to the Appeal Division are that the General Division erred in law, failed to observe a principle of natural justice, or 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.^{Footnote 1} 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, or vary the General Division’s decision in whole or in part.^{Footnote 2}

Issue 1: Did the General Division err in rendering its decision?

[10] This appeal results from an unfortunate set of circumstances wherein the Minister mistakenly paid the GIS to Ms. T. N. for three years.

[11] Ms. T. N. has not disputed that she received more money than her entitlement under the OASA. Instead, she disagrees with the Minister’s demand to be reimbursed. She argues that the overpayment resulted from someone else’s mistake, that she was unaware that she was receiving more money than she should have been, and that it was not her duty to verify that the Minister was authorizing payments correctly.

[12] Subsection 37(1) of the OASA states that a person who has received a benefit to which he or she is not entitled shall immediately return the amount of the benefit. Subsection 37(2) states that such amount constitutes a debt due to the Crown and is recoverable at any time in the Federal Court. Paragraph 37(4)(d) allows the Minister, in certain circumstances, to remit all or any portion of an overpayment where the Minister is satisfied that it resulted from erroneous advice or administrative error.

[13] Although the Minister has the discretion to forgive all or part of an overpayment as a result of an administrative error, it has elected not to exercise that discretion in this case, and neither the General Division nor the Appeal Division has the jurisdiction to review that decision. In Canada v. Tucker,^{Footnote 3} the Federal Court of Appeal confirmed that the Tribunal does not have the power to entertain an appeal of a discretionary decision of the Minister made under paragraph 37(4)(d). That the Minister did not recognize the payment error for three years has no bearing on the Tribunal’s lack of jurisdiction in this appeal, since subsection 23(2) of the Old Age Security Regulations allows the Minister to investigate, at any time, a person’s eligibility to receive a benefit.

[14] The General Division explained in detail how the above provisions were applied to the facts at hand. Although Ms. T. N. may find the outcome unfair, the General Division can exercise only such jurisdiction as is granted to it by the OASA and the DESDA. Support for this position is found in Tucker, among many other cases, which have confirmed that the General Division can only interpret and apply the provisions of its governing legislation. It does not have the authority to render decisions on grounds of compassion or extenuating circumstances.

[15] I see no error in how the General Division interpreted the limits of its authority.

Issue 2: Did the General Division apply the correct test for summary dismissal?

[16] I am satisfied that the General Division used the appropriate mechanism to dispose of Ms. T. N.’s appeal. In paragraph 3 of its decision, the General Division invoked subsection 53(1) of the DESDA, correctly stating the provision that permits it to summarily dismiss an appeal that has no reasonable chance of success. However, I acknowledge that it is insufficient to simply cite legislation without properly applying it to the facts.

[17] The decision to summarily dismissal an appeal relies on a threshold test. It is not appropriate to consider the case on the merits in the parties’ absence and then find that the appeal cannot succeed. In Fancy v. Canada,^{Footnote 4} the Federal Court of Appeal determined that a reasonable chance of success is akin to an arguable case at law. The Court also considered the question of summary dismissal in the context of its own legislative framework and determined that the threshold for summary dismissal is high.^{Footnote 5} It must be determined whether it is plain and obvious on the record that the appeal is bound to fail. The question is not whether the appeal must be dismissed after considering the facts, the case law, and the parties’ arguments. Rather, the question is whether the appeal is destined to fail regardless of the evidence or arguments that might be submitted at a hearing.

[18] Neither the General Division nor the Appeal Division has the authority to “remit all or any portion of an overpayment” where “the overpayment resulted from administrative error,” no matter the circumstances. Paragraph 37(4)(d) of the OASA makes it clear that this discretionary authority belongs to the Minister alone.

[19] It is clear from the record that Ms. T. N. has benefitted from GIS payments to which she was not entitled. Although the overpayment was the result of the Minister’s administrative error, it is nonetheless a debt to the Crown. Only the Minister has the ability to forgive such debt, but it has chosen not to do so. This discretionary decision was not appealable to the Tribunal.

[20] In the absence of any recourse to equity, the General Division was within its jurisdiction to summarily dismiss the appeal. In my view, it was plain and obvious on the record that Ms. T. N.’s arguments were bound to fail.

Conclusion

[21] Having reviewed Ms. T. N.’s submissions against the record, I am satisfied that the General Division did not err in dismissing her appeal, and appropriately used the summary dismissal process to do so.

[22] The appeal is dismissed.