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

Decision and Reasons

Decision

[1] The Applicant’s requests for an extension of time to apply for leave to appeal and for leave to appeal are both refused.

Overview

[2] The Applicant, Mr. W. C., signed his application for an Old Age Security pension in 2007. Following an investigation that dragged on for several years, the Respondent (Minister) denied the application in 2013, and again in February 2015, following its reconsideration. The Applicant appealed the Minister’s decision to the Tribunal’s General Division, but it concluded that the appeal had been filed over a year late and that, as a result, the appeal would not proceed.

[3] As is required in most cases before the Appeal Division, the Applicant has requested leave (permission) to appeal the General Division’s decision. In that request, the Applicant seems to allege that the General Division made an error in finding that his appeal was over a year late (AD1E-3). However, the Applicant’s request for leave to appeal was also filed late. In other words, before this matter can proceed, the Applicant now has two preliminary hurdles to overcome: he requires an extension of time and, if this is granted, leave to appeal. For the reasons set out below, I have concluded that neither hurdle has been met.

Issues

[4] These are the questions that I have asked and answered:

1. Was the application requesting leave to appeal to the Appeal Division filed late?
2. Is there an arguable case on appeal?
3. Should the Applicant be given an extension of time to request leave to appeal?
4. Should the Applicant be granted leave to appeal?

Analysis

[5] The Applicant’s notice of appeal to the General Division and his application requesting leave to appeal to the Appeal Division were both due within 90 days after the Applicant received the decision that he was seeking to challenge.^{Footnote 1} Nevertheless, the Tribunal can grant extensions of time, so long as the Applicant filed his documents less than a year late.^{Footnote 2}

Issue 1: Was the request for leave to appeal to the Appeal Division filed late? Yes.

[6] The General Division’s decision is dated April 11, 2017, though it is unclear precisely when the Applicant received it. What is clear, however, is that the Applicant received the decision on or before May 4, 2017, since that is the day on which he first indicated to the Tribunal that he intended to challenge it (AD1). Ninety days after May 4, 2017, is August 2, 2017.

[7] The problem, however, is that in order for an application requesting leave to be filed and considered complete, it must include all of the information set out in subsection 40(1) of the Social Security Tribunal Regulations. In this case, the Applicant did not provide all of the necessary information until December 8, 2017 (AD1E). As a result, the application requesting leave to appeal was late and an extension of time is required.

Issue 2: Is there an arguable case on appeal? No.

[8] This question is worth considering first, since it is relevant to the two questions below. When answering this question, I have kept in mind the narrow role that the Department of Employment and Social Development Act (DESD Act) assigns to the Appeal Division. Generally speaking, the Appeal Division can intervene only if the General Division failed to observe a principle of natural justice or refused to exercise its jurisdiction, committed an error in law when making its decision, 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.

[9] The focus here is on the errors that the General Division is alleged to have made. The Applicant initially alleged that the General Division failed to observe a principle of natural justice or otherwise acted beyond its jurisdiction, though he never specified how the General Division might have done so (AD1). Rather, the Applicant’s criticisms are frequently aimed at the Minister’s agents (or Service Canada) and not at the General Division.

[10] Later, the Applicant alleged that the General Division made an important error when it concluded that his appeal was filed more than one year after he received the reconsideration decision (AD1E-3). Again, the error that the Applicant alleges the General Division to have made is somewhat vague.

[11] Turning to the facts of the case, there is little doubt that the relevant reconsideration decision is dated February 25, 2015, and that copies of it were sent to the Applicant and to his representative (GD1B-6 to 8). The letter ends by saying that, if the Applicant disagreed with the decision, he could appeal it to the Tribunal’s General Division. In addition, he could contact Service Canada with any questions.

[12] The Applicant did not appeal the decision at that time, but he did write to Service Canada on March 23, 2015, to plead his case one more time (GD2-4 to 5). In that letter, he admits that he received the Minister’s February 25, 2015, reconsideration decision on March 20, 2015. After sending his March 2015 letter, the Applicant says that he waited for a response, but none was forthcoming (AD1-1). Finally, when he called Service Canada to follow up, he realized that he should appeal to the General Division, which he did as quickly as possible.

[13] In fact, the Minister’s file indicates that a response was sent to the Applicant’s letter of March 23, 2015, but that it was sent to his representative rather than to him (GD2-3). This response told the Applicant that he should appeal to the Tribunal if he disagreed with the February 2015 decision. However, it is again unclear whether this letter was received by the Applicant’s representative, or if it made its way from his representative to him.

[14] In any event, the General Division made the following key findings:

1. the Applicant received the February 2015 reconsideration decision on March 20, 2015;
2. the Tribunal received the Applicant’s incomplete notice of appeal on November 10, 2016; and
3. the notice of appeal was perfected on January 10, 2017.

[15] In spite of letters from the Tribunal dated May 5, June 2, and August 8, 2017, asking for detailed information on the alleged errors made by the General Division, the Applicant has not challenged these findings in any serious way. Indeed, the Applicant appears to confirm these dates in his letter to the Tribunal dated December 7, 2017 (AD1E-2).

[16] Though the arguable case threshold is a low one, I cannot see on what basis the Applicant is alleging that the General Division committed an error when it found that his notice of appeal was more than a year late. I have also conducted my own review of the file and was unable to identify any other arguable ground on which this appeal might succeed.

[17] Regardless of how innocent the delay was in this case, the Tribunal is created by legislation and, as such, it has only those powers that are set out in its governing legislation. Unfortunately, the Tribunal cannot use the principles of equity or consider extenuating circumstances to overlook requirements established by the DESD Act.

Issue 3: Should the Applicant be given an extension of time to request leave to appeal? No.

[18] When deciding whether to allow an extension of time, the Tribunal considers and weighs the four factors that were set out in Canada (Minister of Human Resources Development) v. Gattellaro.^{Footnote 3}  In this case:

1. a) Has the Applicant shown a continuing intention to pursue his appeal?
2. b) Has he provided a reasonable explanation for the delay?
3. c) Is there an arguable case on appeal? and
4. d) Would any other party be prejudiced by the granting of the extension?

[19] Not all four factors need to be met; the overriding consideration is that the interests of justice be served.^{Footnote 4}

[20] The Applicant was asked to comment on these factors in the Tribunal’s letter of December 8, 2017, but no answer was received.

[21] In answer to the first, second, and fourth questions, I am satisfied that the Applicant showed a continuing intention of appealing the General Division’s decision and that the Minister would not be prejudiced given the amount of time that passed after the 90-day time limit. Specifically, the Applicant’s incomplete request for leave to appeal was received by the Tribunal less than a month after the date of the General Division’s decision and he was in near constant contact with the Tribunal thereafter. In light of the Tribunal’s many letters, however, it is somewhat unclear why it took the Applicant so long to perfect his application for leave to appeal.

[22] With respect to the third question, I concluded above that there is no arguable case on appeal.

[23] Though the factors are relatively balanced here, there are instances in which the Federal Court and Federal Court of Appeal have given particular weight to the arguable case factor.^{Footnote 5} On the facts of this case, I too agree that the arguable case factor is entitled to considerable weight. I acknowledge that the refusal to grant an extension of time means that the Applicant’s case ends here, but I must also weigh the extent to which the interests of justice are served by allowing an appeal to proceed even though it is bound to fail.

[24] Having considered the Gattellaro factors and the interests of justice, I conclude that the extension of time needed to request leave to appeal should be refused.

Issue 4: Should the Applicant be granted leave to appeal? No.

[25] Strictly speaking, it is not necessary to answer this question in light of the conclusion above. However, I have decided to touch on it briefly in the event that I am wrong and that an extension of time should have been granted.

[26] In keeping with subsections 58(2) and (3) of the DESD Act, leave to appeal should be granted unless the appeal has “no reasonable chance of success.”

[27] I previously considered whether the Applicant has “an arguable case on appeal.” While the wording of these two legal tests is different, courts have interpreted them as being the same in substance.^{Footnote 6} In both cases, the threshold is a low one: is there any arguable ground upon which the proposed appeal might succeed?

[28] Since I previously concluded that there were no arguable grounds on which the appeal might succeed, leave to appeal should be refused for the same reasons.

Conclusion

[29] The Applicant requires an extension of time and leave to appeal before this matter can proceed. I have refused both, albeit with sympathy for the Applicant’s circumstances.