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

Decision and Reasons

Decision

Leave to appeal is refused.

Overview

[1] The Applicant, N. N. (Claimant), was born in Kenya in 1947 and immigrated to Canada in 1975. In January 2013, the Claimant applied for an Old Age Security(OAS) pension, listing a residential address in Vancouver. The Respondent, the Minister of Employment and Social Development (Minister), wrote to the Claimant at that address, in letters dated March 16, 2013, and April 16, 2013, seeking additional information. It received no response.

[2] On April 23, 2013, the Claimant’s daughter went to a Service Canada centre and advised the Minister that her mother was caring for her new grandchild at her son’s residence in Dubai. The Minister sent a follow-up letter to the Dubai address on May 25, 2013. Again, it received no response.

[3] In July 2013, the Minister informed the Claimant that it was refusing her application. At the same time, it advised her of her right to request reconsideration of the decision within 90 days. There is no record that the Claimant did so. The file was closed.

[4] In August 2014, the Claimant submitted a second OAS application. This time, the Minister satisfied itself that the Claimant met the requirements and granted the application, with an effective payment date of September 2013—the maximum period of retroactivity permitted under the law.

[5] The Claimant appealed the Minister’s determination to the General Division of the Social Security Tribunal, arguing that she should have received OAS payments retroactive to September 2012. She claimed that she did not receive the Minister’s requests for information due to circumstances beyond her control. In a decision dated November 29, 2017, the General Division dismissed the Claimant’s appeal, finding that it did not have jurisdiction to review the Minister’s refusal of the January 2013 application.

[6] On January 12, 2018, the Claimant applied for leave to appeal to the Tribunal’s Appeal Division. She made the following submissions:

• She did not receive the March 2013 letter or the follow-ups. If she had, she certainly would have responded.
• It was her legal right to receive an OAS pension when she turned 65. She has been denied that right because mail went missing. She has lost one year of OAS payments through no fault of her own.
• When the Minister finally approved her OAS pension, it paid her a retroactive lump sum. Since government agencies do not share information, she suffered anguish and distress when she was forced to explain the source of the funds to Canada Pension Plan medical services and Pharmacare.

Issues

[7] According to s. 58(1) of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: The General Division (i) failed to observe a principle of natural justice; (ii) erred in law; or (iii) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material. An appeal may be brought only if the Appeal Division first grants leave to appeal,^{Footnote 1} but the Appeal Division must first be satisfied that it has a reasonable chance of success.^{Footnote 2} The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.^{Footnote 3}

[8] My task is to determine whether any of the grounds that the Claimant has put forward fall into the categories specified in s. 58(1) of the DESDA and whether any of them raise an arguable case.

Analysis

[9] Having carefully examined the Claimant’s submissions, the General Division’s decision, and the documentary record in the context of the applicable law, I have identified no plausible grounds of appeal under s. 58(1) of the DESDA.

No jurisdiction

[10] As the General Division rightly noted, recourse to the Social Security Tribunal is a right created by statute. Under s. 27.1(1) of the Old Age Security Act (OASA), a person who “is dissatisfied with a decision or determination made under this Act” may ask the Minister to reconsider the decision. Subsection 27.1(2) of the OASA requires the Minister, on receiving such a request, to reconsider the decision and either confirm or vary it. The Minister must communicate its reconsideration decision, along with reasons for it, to the person who made the request. Under s. 28(1) of the OASA, a person who is dissatisfied with a decision of the Minister made under s. 27.1—that is, a reconsideration decision—may appeal the decision to the Tribunal.

[11] The effect of these provisions is that the General Division cannot consider an appeal except where there has been an initial decision and then a request for reconsideration, followed by a reconsideration decision, made under s. 27.1 of the OASA. This interpretation of the law has been reinforced by the Federal Court decision Canada v. Bannerman,^{Footnote 4} which held that there is no direct right of appeal from an original determination of the Minister without having first applied for redetermination and having received a decision flowing from that request. A request for reconsideration under s. 27.1(2) and a decision on the request for reconsideration are conditions to the right of appeal.

[12] In this case, there have been two OAS applications, but only the second has been subject to reconsideration and, for this reason, it is the only one that the General Division was permitted to consider. In none of the Claimant’s submissions has she disputed the essential fact that she has never requested a reconsideration decision with respect to the January 2013 OAS application; as a consequence, the Minister never issued one. ^{Footnote 5}reconsideration decision, the General Division had no jurisdiction to hear an appeal on the basis of the first application and was therefore barred from specifying a first payment date associated with it.

No allegations of error

[13] Echoing her submissions before the General Division, the Claimant claims to have never received the Minister’s correspondence following her first application.

[14] I see no arguable case on this ground, having found no indication that the General Division ignored, or gave inadequate consideration to, any of the Claimant’s submissions. As the General Division noted, the Minister is entitled to request further information from OAS applicants, and the Claimant has not alleged that it committed any factual or legal error in the course of processing her first application.

[15] Ultimately, the Claimant’s submissions amount to a request that I reassess and re‑weigh the evidence and come to a conclusion other than the General Division’s. I am unable to do this, since my authority under the DESDA permits me to determine only whether any of an applicant’s reasons for appealing fall within the grounds specified in s. 58(1) and whether any of them have a reasonable chance of success. The Appeal Division does not consider OAS claims on their merits, and it is insufficient for an applicant to merely state their disagreement with the General Division’s decision.

Equity

[16] The Claimant regards the General Division’s decision as unjust, but I see no recourse available to her under the law. The General Division was bound to follow the provisions of the OASA, and so am I. The fact remains that a reconsideration decision never emerged from the first application. The Claimant has speculated that the Minister’s letters were lost in the mail, but however reasonable this explanation may be, it is, unfortunately, irrelevant.

[17] Under s. 58 of the DESDA, I lack the discretionary authority to simply order what I may think is fair. This reality is reflected in cases such as Canada v. Tucker, which held that an administrative tribunal is not a court but a statutory decision‑maker and therefore not empowered to provide any form of equitable relief.

Conclusion

[18] Since the Claimant has not identified any grounds of appeal under s. 58(1) of the DESDA that would have a reasonable chance of success on appeal, the application for leave is refused.