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

Decision

[1] Leave (permission) to appeal is refused. The appeal will not proceed.

Overview

[2] The Claimant (R. P.) has an ongoing appeal at the Tribunal’s General Division. In April 2020, Service Canada issued a reconsideration decision about his entitlement to benefits under the Old Age Security Act (OASA). That decision apparently noted an underpayment of the Old Age Security (OAS) pension, an overpayment of the Guaranteed Income Supplement (GIS), and a resulting debt of $717.78.^{Footnote 1} The General Division has made several interim decisions in response to the Claimant’s requests, but has not yet made a final decision on the appeal.

[3] In the meantime, on May 10, 2021, Service Canada reminded the Claimant about the $717.78 overpayment. The letter said that the Claimant could ask for reconsideration, and the Claimant did ask for reconsideration on June 6, 2021. Not having received a response, the Claimant filed a new appeal at the General Division on July 8, 2021.

[4] The General Division decided that it couldn’t process the Claimant’s appeal without either Service Canada’s reconsideration decision or its response to the reconsideration request. The Claimant then asked to appeal this General Division decision to the Appeal Division.

[5] I am not giving the Claimant permission to appeal, because his appeal does not have a reasonable chance of success.

Preliminary matter – status of the Respondent

[6] The Claimant wanted to know how this (and any other income security matter) could proceed if there is no Minister of Employment and Social Development.

[7] In November 2019, the Honourable Carla Qualtrough was appointed “Minister of Employment and Social Development to be styled Minister of Employment, Workforce Development, and Disability Inclusion.”^{Footnote 2} As such, the Honourable Carla Qualtrough is the Minister of Employment and Social Development (Minister).

Issue – what I must decide

[8] This appeal can proceed only if I first grant permission to appeal.^{Footnote 3} At this stage, I have to be satisfied that the appeal has a reasonable chance of success.^{Footnote 4} This means that there must be some arguable ground upon which the Claimant’s appeal might succeed.^{Footnote 5}

[9] The possible grounds of appeal to the Appeal Division are that the General Division:

• proceeded in a way that was unfair;
• did not exercise its jurisdiction, or exceeded its jurisdiction;
• erred in law in making its decision; or
• based its decision on an erroneous finding of fact, made contrary to or without regard to the evidence.^{Footnote 6}

[10] So, I must decide whether the Claimant has an arguable case based on one of these errors.

Analysis

[11] The General Division said that it couldn’t process the Claimant’s appeal without Service Canada’s reconsideration decision or its response to the Claimant’s request for reconsideration. The General Division based this decision on:

• the fact that the Claimant had not filed a reconsideration decision or a response to his reconsideration request; and
• the requirement in section 24 of the Social Security Tribunal Regulations (Regulations) that an appeal to the General Division must include a copy of the reconsideration decision.^{Footnote 7}

[12] There is overlap between the many arguments that the Claimant has raised. I have addressed his arguments under headings that mirror the permitted grounds of appeal, below.

There is no arguable case that the General Division’s process was unfair

[13] The Claimant says that the General Division did not hold a hearing on a question of law, before making its decision.

[14] There is no obligation for the General Division to hold an oral hearing to decide whether the requirements to start an appeal have been met. The duty of procedural fairness is flexible. Oral hearings are not always required, so long as a tribunal makes its decisions using a fair procedure, appropriate to the nature of the decision.^{Footnote 8}

[15] Here, the General Division did not make a substantive or final decision on the Claimant’s appeal; rather, it said that the appeal was incomplete (or, premature) without the Minister’s response to the request for reconsideration. The Claimant had the opportunity to outline the facts in his Notice of Appeal, and there is no dispute about the relevant facts. The Claimant retained the right to file another Notice of Appeal in future. I see no arguable case that the General Division ought to have held an oral hearing in this context.

[16] The Claimant also says that the General Division showed bias, or did not act at arm’s length, by allowing the Minister to delay her response to his request for reconsideration, contrary to the statutory obligation. This argument reflects a misunderstanding of the General Division’s authority. The General Division does not “allow” the Minister to delay her response; it has no role to play in the reconsideration stage of the recourse process. The General Division can change or replace the Minister’s reconsideration decision, but it has no power over the Minister’s internal processes.^{Footnote 9} I see no arguable case that the General Division’s lack of control over the Minister’s processes suggests that it was biased when it decided against processing the Claimant’s appeal.

There is no arguable case that the General Division made errors of jurisdiction

[17] The Claimant says that the General Division erred by not accepting jurisdiction over his appeal. I see no arguable case that the General Division had jurisdiction to hear the Claimant’s appeal as filed.

[18] The General Division’s jurisdiction, or statutory mandate, is limited to hearing appeals of reconsideration decisions under the OAS, the Canada Pension Plan, and the Employment Insurance Act.^{Footnote 10} At the General Division, there was no reconsideration decision to appeal,^{Footnote 11} and there was no refusal to issue a reconsideration decision.^{Footnote 12} The reconsideration decision about the Claimant’s benefits (underlying the overpayment reminder of May 10, 2021) was already the subject of an ongoing appeal at the General Division.

[19] The Claimant also argues that the General Division should have addressed:

• whether the Minister contravened section 27.1(2) of the OASA (which requires her to make a reconsideration decision without delay), and
• whether Service Canada has the authority to make decisions on behalf of the Minister.

[20] I don’t see a reasonable chance of success for these arguments. Not only is the General Division’s mandate limited to appeals of reconsideration decisions, it can only conclude those appeals in the following ways:

The General Division may dismiss the appeal or confirm, rescind or vary a decision of the Minister or the Commission in whole or in part or give the decision that the Minister or the Commission should have given.^{Footnote 13}

[21] The General Division can’t direct the Minister’s internal procedures, or sanction the Minister for its procedural failures.^{Footnote 14} In order to reach its decision, the General Division can decide questions of law or fact – but only those questions necessary for the disposition of the appeal.^{Footnote 15} There is no freestanding authority for the General Division to make a declaration on a question of fact or law outside the confines of an appeal of a specific reconsideration decision. While the Federal Court might be able to issue a writ of mandamus^{Footnote 16} directing the Minister to issue a reconsideration decision within a certain timeframe, the General Division (and the Appeal Division) cannot.^{Footnote 17}

There is no arguable case that the General Division erred in law in making its decision

[22] The Claimant says that the General Division made numerous errors of law.

[23] First, the Claimant says that the General Division did not give written reasons for its decision, as required by section 54(2) of the Department of Employment and Social Development Act (DESDA). However, section 54(2) of the DESDA only requires written reasons for decisions on the merits. Here, the General Division merely made a procedural decision that the Claimant’s appeal could not yet be processed. In any case, the General Division did give reasons for its decision: it explained that the Claimant had not filed a reconsideration decision or a response to his request for reconsideration, as required by the Regulations. I see no arguable case that the General Division erred by not giving the Claimant written reasons for its decision.

[24] Second, the Claimant says that the General Division erred in directing him to send his Notice of Appeal to Service Canada for a decision on the Appeal. But the Tribunal’s Secretariat did nothing more than suggest that the Claimant send his information to Service Canada. This was not a direction, an order, or a decision. And, the Secretariat did not indicate that Service Canada would decide the Claimant’s appeal. I see no arguable case that the Secretariat’s suggestion to the Claimant reflects an error of law.

[25] Third, the Claimant says that the General Division made legal errors by deciding that only he, and not the Minister, must file the reconsideration decision. The Claimant argues that there is no statutory or regulatory obligation for him to file the reconsideration decision with the Tribunal. That is incorrect. As noted, section 24(1)(a) of the DESDA requires him to file the reconsideration decision to start the appeal. The General Division made no comment about the Minister’s obligation to file the reconsideration decision, and did not wait for the Minister to file the reconsideration decision, because the Minister’s obligation arises at a later stage after the appeal is underway.^{Footnote 18} The Minister’s obligation makes no difference to the question of whether the Claimant’s appeal could be processed. I see no arguable case that the General Division erred in requiring the Claimant and not the Minister to file the reconsideration decision before the appeal could be opened.

[26] Fourth, the Claimant says that the General Division erred by not waiving the requirement to file the reconsideration decision. The Claimant is correct that the Tribunal has the power to “dispense a party from compliance with a provision” of the Regulations in “special circumstances.”^{Footnote 19} The Tribunal has used this power to allow an appeal to proceed when the reconsideration decision existed but was not filed within the time limits.^{Footnote 20}

[27] I am not aware of any case where the General Division (or the Appeal Division on appeal) processed an appeal without either a reconsideration decision or a documented refusal to issue a reconsideration decision. This makes sense, because (as discussed above) the General Division’s jurisdiction is limited to appeals of reconsideration decisions. The Claimant’s appeal did not raise any special circumstances that would allow the General Division to proceed in the absence of a reconsideration decision. Indeed, there would be no point in processing an appeal if there is no decision to be appealed. I see no arguable case that the General Division erred by not waiving the requirement for the Claimant to file a reconsideration decision.

[28] Finally, the Claimant says that the General Division erred in law, because the Vice-Chairperson endorsed a decision of the Tribunal’s Secretariat, and the Secretariat can’t make this kind of decision. I don’t see merit in this argument. The Tribunal can provide direction to the Secretariat about when an appeal can and cannot be processed, so long as it gives “sufficient particularity”; this is not an unlawful delegation of authority, because the Secretariat’s duties remain administrative in nature.^{Footnote 21} Even if that weren’t the case, a member of the General Division (the Vice-Chairperson) went on to confirm the decision not to process the Claimant’s appeal. While the Claimant doesn’t like the Vice-Chairperson’s use of the term “endorsement,” this simply acknowledges that an initial decision was communicated by the Secretariat. I see no arguable case that the General Division erred in law in the way it issued its decision in this case.

There is no arguable case that the General Division based its decision on factual errors

[29] The Claimant says that the General Division made errors of fact by:

• not recognizing that he had already submitted a timely request for reconsideration of Service Canada’s May 2021 letter; and
• not acknowledging that the Minister is required to make a decision on a request for reconsideration without delay.

[30] I don’t see a reasonable chance of success for these arguments. The General Division did not make any findings of fact about the Claimant’s request for reconsideration or the Minister’s response time. This is because those facts were not relevant to its decision not to process the Claimant’s appeal. What mattered was the absence of a reconsideration decision. The facts that underlie the General Division decision are not in dispute: when the Claimant filed his Notice of Appeal at the General Division, Service Canada had not issued a reconsideration decision and had not responded to the request for reconsideration. I see no arguable case that the General Division based its decision on an error of fact.

Input and request from Minister’s counsel

[31] The Claimant also argues that Minister’s counsel filed new evidence (a letter dated August 30, 2021) without leave of the Appeal Division. This does not point to an error by the General Division.

[32] I specifically asked Minister’s counsel for a copy of Service Canada’s response to the Claimant’s reconsideration request. This was for the purpose of possibly facilitating a resolution of the Claimant’s appeal.^{Footnote 22} The August 30, 2021 letter, effectively retracting the May 10, 2021 letter, is irrelevant to the question of whether the General Division erred in not processing the Claimant’s appeal in July 2021. And, I see nothing suspicious in the fact that Minister’s counsel addressed his letter to the Manager of Operations for the Appeal Division; no matter how it is addressed, correspondence relating to an application or appeal is placed before the Appeal Division member.

[33] Pointing to the interlocutory decisions at the General Division, Minister’s counsel requests that I not allow the Claimant to “commandeer proceedings in a way that consumes resources, frustrates other parties’ ability to respond, and enables delay of the adjudication of his OAS benefits.”^{Footnote 23} I agree with Minister’s counsel that the Appeal Division has the general power to control its own procedures. In the absence of any ongoing proceedings involving the Claimant at the Appeal Division, I will not issue any direction at this time. If the Claimant makes a new application to the Appeal Division in future, I will consider (with input from the Claimant) whether it is appropriate to place that application on hold until the General Division appeal is completed.

Conclusion

[34] Although he asked for reconsideration of Service Canada’s May 10, 2021 letter, the Claimant now says that he doesn’t want to appeal that letter.^{Footnote 24} He does want to appeal the underlying overpayment decision, but that appeal is already underway at the General Division. So why is he pursuing this appeal? Put in its best light, the Claimant wants to advocate for those who wait a long time for reconsideration decisions. For example, he wants a declaration that the Minister (and not Service Canada) must respond to requests for reconsideration without delay, specifically within 30 days.^{Footnote 25} But, as I have explained above, this request reflects a misunderstanding of the General Division’s statutory mandate.

[35] The General Division decided only one preliminary question, in July 2021: Can the Claimant’s appeal be processed at this time? The General Division decided that the appeal could not be processed in the absence of a response to the Claimant’s request for reconsideration. I have found no arguable case that the General Division made any procedural, jurisdictional, legal, or factual errors in making that decision. There is no reasonable chance of success, and so I have refused permission to appeal.

[36] Given that the Claimant may be confused about the issue under appeal at the General Division,^{Footnote 26} I am directing that a copy of this decision be placed on the record in that appeal.