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

Decision and reasons

Decision

[1] Leave to appeal is denied. I have decided not to grant the Appellant permission to appeal the General Division’s decision to hold its hearing by teleconference. The General Division is now free to resume its proceeding.

Overview

[2] The Appellant is the estate of the late F. F., who was a recipient of the Guaranteed Income Supplement (GIS). The amount of GIS that recipients receive depends on their marital status: a recipient who is single receives more than a recipient who is married or in a common-law relationship.

[3] In her annual applications for the GIS, F. F.had declared that she was single. In April 2015, she applied for a Canada Pension Plan survivor’s benefit, claiming that she was the common-law spouse of the recently-deceased F. B.

[4] The Minister reassessed F. F.’s GIS entitlement and determined that it had overpaid her by $16,800 over nine years.

[5] By that time, F. F. has also passed away. Her son, the representative of her estate, appealed the Minister’s reassessment to the Social Security Tribunal’s General Division. He claimed that F. F. and F. B. had never been in a common-law relationship but were only housemates.

[6] This past February, the General Division called a pre-hearing conference to discuss various procedural issues, including what format would be best for the upcoming hearing. In a decision dated February 19, 2021, the General Division decided to hold the hearing by teleconference, rather than by personal appearance. This went against the expressed preference of the Appellant’s representative, who had previously claimed that he would have difficulty presenting his case by means of electronic telecommunication.

[7] The Appellant’s representative has now come to the Appeal Division, requesting permission to appeal the General Division’s decision. He alleges that the General Division ignored his concerns when it decided to hold his hearing by teleconference.

[8] I have reviewed the General Division’s decision and the material on file. I have concluded that the Appellant’s representative has not advanced an argument that would have reasonable chance of success on appeal.

Issues

There are four grounds of appeal to the Appeal Division. An Appellant must show that the General Division

1. did not follow procedural fairness;
2. made an error of jurisdiction;
3. made an error of law; or
4. based its decision on an important factual error.^{Footnote 1}

[9] An appeal can proceed only if the Appeal Division first grants leave to appeal.^{Footnote 2} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 3} This is a fairly easy test to meet, and it means that a claimant must present at least one arguable case.^{Footnote 4}

[10] In this appeal, I had to answer the following questions:

Analysis

Issue 1: Does the Appeal Division have jurisdiction over interim decisions of the General Division?

[11] The decision dated February 19, 2021 is an interlocutory or interim decision, since the General Division has yet to determine the final outcome of the Appellant’s appeal. As a result, I must deal with the preliminary question of whether the Appeal Division has jurisdiction to consider this leave to appeal application, even though the General Division is still in the middle of its proceeding.

[12] In a case called Szczecka v Canada,^{Footnote 5} the Federal Court of Appeal dismissed an application for judicial review of an interim decision because the claimant had not exhausted all remedies within the power of the Immigration Review Board. As the Court later put it:

[P]arties cannot proceed to the court system until the administrative process has run its course. This means that, absent exceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue all effective remedies that are available within that process; only when the administrative process has finished or when the administrative process affords no effective remedy can they proceed to court.^{Footnote 6}

[13] With this principle in mind, the Appeal Division has taken two approaches to interim decisions:

• In some cases,^{Footnote 7} the Appeal Division has determined that there should be no immediate appeal of an interim decision, except in exceptional circumstances, as long as the General Division remains seized of the matter.
• In other cases,^{Footnote 8} the Appeal Division has interpreted the relevant case law to mean that recourse to the courtsis available only after all remedies at the administrative level have been exhausted. By implication, Szczecka and related cases do not prevent appeals of interim decisions within the administrative framework.

[14] I am inclined to the second approach. Section 55 of the DESDA states: “Any decision of the General Division may be appealed to the Appeal Division by any person who is the subject of the decision… [my emphasis].” The Supreme Court of Canada has said that statutory provisions should be read to give the words their most obvious ordinary meaning which accords with the context and purpose of the enactment in which they occur.^{Footnote 9}

[15] While tribunal members are not bound by the earlier decisions of their colleagues, they should not depart from those decisions without good reason. Based on my reading of section 55 and the relevant case law, I see good reason to depart from previous Appeal Division decisions that have deemed interim appeals premature.

[16] Given the language in section 55 of the DESDA that “any” decision of the General Division may be appealed to the Appeal Division, I have concluded that I have jurisdiction to deal with this leave to appeal application.

Issue 2: Is there an arguable case that the General Division’s choice of hearing format will deny the Appellant’s right to be heard?

[17] The Appellant’s representative argues that it would be unfair for the General Division to hear the estate’s appeal by teleconference because he won’t be able to present his full case.

[18] I don’t see reasonable chance of success for this argument. The General Division has considerable freedom, subject to limits, to decide on an appropriate hearing format. I see no reason to second-guess the General Division’s judgment that an in-person hearing would be inappropriate in this case.

[19] The Social Security Tribunal Regulations give the Tribunal’s two divisions wide flexibility hold hearings as they see fit. Section 21 says that the General Division may hold a hearing by one of several methods, including written questions and answers, teleconference, videoconference, or personal appearance. Use of the word “may,” in the absence of qualifiers or conditions, suggests that the General Division can use its discretion to make this decision.

[20] That said, such discretion must be exercised in compliance with the rules of procedural fairness. The Supreme Court of Canada has pronounced on this issue in a case called Baker v Canada,^{Footnote 10} which held thatthat any decision affecting an individual’s rights, privileges, or interests is sufficient to trigger a duty of fairness. However, the concept of procedural fairness is variable and must be assessed in the specific context of each case. Baker listed a number of factors that may be considered to determine what the duty of fairness requires in a particular case, including

• the importance of the decision to the affected individual;
• the legitimate expectations of the individual; and
• the procedural choices available to the decision-maker.

[21] I have no doubt that this case is very important to the Appellant’s representative, and I know that he expects it to be given the fullest possible hearing. However, I also place great weight on the nature of the statutory scheme that governs the General Division. The Social Security Tribunal was designed to resolve disputes fairly and efficiently. To accomplish this, Parliament gave the General Division authority to determine how hearings are to be conducted. That authority should not be brought into question unless there is good reason to do so.^{Footnote 11}

[22] In this case, the General Division had wide latitude to choose a preferred hearing format, but its decision to proceed by teleconference was not made on a whim. The General Division made its choice for considered reasons that it explained in its interim decision:

• When he appealed to the General Division, the Appellant’s representative indicated that he was fine with proceeding by videoconference, telephone, or personal appearance. To the General Division, this suggested that a teleconference was likely within the representative’s capabilities.
• The General Division called a pre-hearing teleconference to discuss procedural issues. The General Division noted that the Appellant’s representative participated in the teleconference and was able to communicate his positions effectively.
• The General Division considered holding the hearing by videoconference. However, it decided that proceeding by teleconference was the safer option after the Appellant’s representative mentioned that neither he nor his wife were good with computers.
• The COVID-19 pandemic has prompted governments to strictly limit in-person meetings and gatherings. Although the Appellant’s representative said that he was willing to wait for a live hearing, the General Division recognized that the Minister was entitled to have claims against it resolved in a timely manner.
• Now that it is aware of his discomfort with discussing serious matters over the telephone, the General Division has pledged to do its best to accommodate the Appellant’s representative. The presiding member wrote: “I will be able to conduct the teleconference in such a way that allows the representative plenty of time to formulate his thoughts and put forward his arguments in support of his position in this appeal.”^{Footnote 12}

[23] In-person hearings are often viewed as the best way to assess witness testimony, but I would not expect credibility to be a significant issue in a case where one of the principals is deceased. In a case called Parchment,^{Footnote 13} which involved factual circumstances similar to this one, the Federal Court found no fault with the General Division’s decision to hold a hearing by teleconference rather than in person.

[24] Above all, the Appellant’s representative has not explained how a hearing by teleconference would be less fair than one by personal appearance. Pointing to his limited education, the representative claims that participating in a hearing by teleconference would be “beyond his ability.” But he does not explain how he was able to effectively represent his mother’s estate in the General Division’s pre-hearing teleconference. Nor does he say why presenting his case in person would be any less challenging than doing so over the phone.

Conclusion

[25] I am refusing the Appellant permission to appeal because its representative has not identified any grounds of appeal that would have a reasonable chance of success. The General Division is now free to schedule a hearing by teleconference.