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Decision and Reasons
Decision
[1] The appeal of the decision of the General Division of the Social Security Tribunal of Canada dated July 31, 2018, is dismissed.
Overview
[2] The Appellant, E. A., requested a full Old Age Security (OAS) pension. The Respondent, the Minister of Employment and Social Development, found that the Applicant was not entitled to a full pension because he had not resided in Canada for at least 40 years before the day on which the application was approved. However, the Respondent granted the Applicant a partial pension, at the rate of 25/40 of a full pension, as of October 2016.
[3] The Appellant does not dispute his 1991 arrival date in Canada, but he insists on his right to a full pension under the Old Age Security Act (OAS Act). He asked the Respondent to reconsider. The Respondent upheld its decision.
[4] The Appellant appealed the Respondent’s decision to the Tribunal’s General Division. The General Division found that the Applicant had not resided in Canada for at least 40 years before the date of his pension application. As a result, his appeal had no reasonable chance of success and was summarily dismissed.
[5] The Appellant argues that the General Division based its decision on material errors regarding the facts of the appeal file and that it failed to observe a principle of natural justice. He submits that the OAS Act is discriminatory because it requires 40 years of residence in Canada after the age of 18.
[6] The appeal must be dismissed because the General Division did not make a reviewable error.
Issue
[7] Did the General Division base its decision on material errors concerning the facts of the appeal file or fail to observe a principle of natural justice by finding that the appeal had no reasonable chance of success?
Analysis
[8] The General Division must summarily dismiss an appeal if it is satisfied that the appeal has no reasonable chance of success.Footnote 1 Following a summary dismissal by the General Division, no leave is needed to appeal to the Appeal Division.Footnote 2
[9] The only grounds of appeal are the following: the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; erred in law in making its decision, whether or not the error appears on the face of the record; 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 3
Did the General Division base its decision on material errors regarding the facts of the appeal file or fail to observe a principle of natural justice by finding that the appeal had no reasonable chance of success?
[10] No, the General Division did not base its decision on material errors of facts and did not ignore a principle of natural justice.
[11] According to the Appellant, the OAS Act is discriminatory because it requires at least 40 years of residence in Canada after the age of 18. He submits that section 15 of the Canadian Charter of Rights and Freedoms (Charter) guarantees him equality and that requiring 40 years of residence in Canada does not respect that right. He states that the General Division did not observe the Charter and that it interpreted the legislation in a perverse manner.
[12] The Respondent submits, on the contrary, that the General Division offered the Appellant the opportunity to present his arguments on the Charter, but he chose not to do so. Consequently, the General Division treated the appeal like an ordinary appeal, without deciding on the Charter challenge. The Respondent submits that the General Division therefore did not make a reviewable error.
[13] On reading the General Division’s decision and the appeal file, I note that the General Division considered the evidence in the file and that it did not ignore the evidence. It did not ignore a principle of natural justice. Furthermore, it interpreted the OAS Act properly in terms of the requirements for obtaining a full OAS pension.
[14] The reasons for this decision are explained below.
The General Division decision
[15] The General Division informed the Appellant of its intention to summarily dismiss the appeal and referred to section 3(1) of the OAS Act and the requirement for at least 40 years of residence before the date of the pension application.Footnote 4 The Appellant made submissions in response to the notice of intention and made an argument based on the Charter.
[16] The General Division held a pre-hearing conference on the Charter argument and explained the requirements. The Appellant indicated that he did not intend to make submissions in accordance with section 20 of the Social Security Tribunal Regulations (Regulations) but that he wanted to make sure he was treated like all Canadians.
[17] The General Division found that, in the absence of a Charter challenge, the appeal had no reasonable chance of success. The Appellant had not resided in Canada for at least 40 years (after the age of 18) before the day on which the application was approved.
[18] The Respondent submits that the General Division did not make an error by failing to observe a principle of natural justice because it indicated its intention to summarily dismiss the appeal, explained the intention, gave a reasonable deadline for submitting a notice of constitutional question, held a pre-hearing conference, and explained the requirements for the mandatory notice. In the Respondent’s view, the General Division gave the Appellant the opportunity to present his Charter arguments, but he chose not to do so.
[19] I agree with these submissions. The General Division did not make an error relating to natural justice when it summarily dismissed the appeal.
Findings of fact
[20] The Appellant submits that the General Division based its decision on erroneous findings of fact, but he did not explain which findings of fact were erroneous.
[21] The Appellant does not dispute his 1991 arrival date in Canada or the date of his OAS pension application in 2016. The Appellant resided in Canada for 25 years before applying, and he does not dispute that fact either.
[22] The General Division found that the applicable provisions required 40 years of residence and that the Appellant does not meet the requirements.
[23] I find that the General Division was correct.
[24] Given this situation, the General Division decided on the record to dismiss the appeal summarily.
Summary dismissal: legal test
[25] I note that deciding whether to summarily dismiss an appeal is 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.Footnote 5 The question to be asked for summary dismissal is as follows: Is it plain and obvious on the record that the appeal is clearly bound to fail?
[26] More specifically, the question is notwhether the appeal must be dismissed after considering the facts, the case law, and the parties’ arguments. Rather, it must be determined whether the appeal is destined to fail regardless of the evidence or arguments that might be submitted at a hearing.
[27] I find that this appeal is bound to fail, regardless of the evidence or arguments that might be presented at a hearing. There was, quite simply, no convincing evidence or argument that could be presented. The Appellant abandoned his Charter arguments when he decided not to take the required steps.Footnote 6 The appeal before the General Division rested entirely on the Canadian residence requirement, a mandatory requirement that the Appellant could not satisfy.
[28] While the Appellant may not be satisfied with the General Division’s decision and finding that the Appellant did not meet the requirements of the OAS Act to receive a full pension, the General Division did not base its decision on an erroneous finding of fact, did not ignore relevant evidence, and did not make an error of law.
Charter argument
[29] The Appellant also appealed on the ground that the relevant provision of the OAS ActFootnote 7 violates section 15 of the Charter and that the General Division did not apply the Charter to his situation.
[30] The Respondent submits that, since the Appellant did not submit the notice of constitutional question required in section 20(1)(a) of the Regulations to the General Division, the issue of constitutionality cannot be raised later.
[31] The Federal Court decided on this issue in a case from the Tribunal. In Papouchine v Canada (Attorney General),Footnote 8 the Federal Court confirmed the Appeal Division’s decision that dismissed the appeal of a summary dismissal by the General Division.
[32] The claimant, Mr. Papouchine, tried to argue that the relevant provision of the Employment Insurance Act was contrary to section 15 of the Charter. The General Division held a pre-hearing conference where the obligation to file a notice in accordance with section 20(1)(a) of the Regulations was explained to the claimant. He did not file the required notice. The General Division heard the appeal and found that, in the absence of a Charter challenge, it was plain and obvious that the appeal was bound to fail. It summarily dismissed the appeal. The claimant appealed the summary dismissal to the Appeal Division, maintaining that his Charter rights had been violated. The Appeal Division found that the claimant had been informed of the obligation to file the constitutional notice and had decided not to file and to proceed with his other arguments. The General Division therefore did not ignore a principle of natural justice by hearing the appeal without analyzing the Charter. The Appeal Division dismissed the claimant’s appeal. The Federal Court stated that the Tribunal’s approach was correct and that neither the General Division nor the Appeal Division had violated a principle of natural justice.
[33] The Papouchine decision applies to this appeal. The General Division explained the requirement of the constitutional notice to the Appellant, the Appellant chose not to file that notice, and the General Division heard the appeal without the Charter challenge. The Appellant submits that the General Division violated a principle of natural justice by ignoring the Charter. The Federal Court has already ruled on this issue: the approach adopted by the General Division is correct, and the General Division did not violate a principle of natural justice.
[34] The General Division did not make a reviewable error.
Conclusion
[35] The appeal is dismissed.
Representative:
E. A., self-represented