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Pensions - Canada Pension Plan - Administrative Appeals. Gloglo v. Canada (National Revenue)
In Gloglo v. Canada (National Revenue) (Fed CA, 2023) the Federal Court of Appeal considers the extended appeal route from CPP administrative decisions, in this case the pensionability of employment:[4] We see no error that warrants our intervention. Section 26.1 of the CPP allows a request to be made to a CRA officer to rule on certain questions, including whether an employment is pensionable. A person concerned by the ruling may appeal it to the Minister under section 27. A person affected by a decision of the Minister under section 27 may, under section 28, appeal that decision to the Tax Court, which may vacate, confirm or vary the decision. It was open to the Tax Court, on the evidentiary record before it, to determine that there was no decision of the Minister under section 27, particularly given the appellant’s acknowledgement of this fact at the hearing before the Tax Court.
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[6] Considering, without deciding, the appellant’s argument that the Minister’s alleged inaction regarding his request for a transfer of his contributions to the Irish Single Public Service Pension Scheme to the Canada Pension Plan provides him with a cause of action against the Minister, the Tax Court did not err in deciding that, in the absence of a section 27 decision, it had no jurisdiction under section 28 of the CPP to hear the appellant’s appeal. .... . Canada (Attorney General) v. Ibrahim
In Canada (Attorney General) v. Ibrahim (Fed CA, 2023) the Federal Court of Appeal considered the appellate (and remedial) jurisdiction of the Social Security Tribunal (Appeal Division):[27] In accordance with subsection 58(1) of the DESDA, the Appeal Division may only intervene in a decision of the General Division if it finds the latter to have: (1) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (2) erred in law in making its decision; or (3) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.
[28] The Appeal Division, relying on the authority provided by subsection 59(1) of the DESDA, gave the decision that it concluded the General Division should have given. The Appeal Division concluded that notwithstanding the earnings from working in his son’s business, Mr. Ibrahim remained “incapable regularly of pursuing any substantially gainful occupation”. . Smith v. Canada (Attorney General)
In Smith v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal notes an amendment to the procedural provisions of the Appeal Division of the Social Security Tribunal [found in the Income Security Section of DESDA ('Department of Employment and Social Development Act')], a central procedural law when dealing with social security appeals and judicial reviews:[55] It should be noted that section 58.3 of the Department of Employment and Social Development Act, S.C. 2005, c. 34 (the DESDA) now provides that an appeal from the Income Security Section (the applicable section in this matter) is to be heard and determined as a new proceeding. However, this provision was added to this statute by S.C. 2021, c. 23, s. 229, after the Appeal Division rendered its decision on July 14, 2020. . Sibbald v. Canada (Attorney General)
In Sibbald v. Canada (Attorney General) (Fed CA, 2022) the Federal Court of Appeal considered the role of the Appeal Division of the federal Social Security Tribunal, here in a CPP disability child benefit matter:[27] The role of the Appeal Division is constrained pursuant to subsection 58(1) of the DESD. "“[The Appeal Division] can only intervene if the General Division failed to observe a principle of natural justice, erred in law or based its decision on an erroneous finding of fact made in a perverse or capricious manner, [or without regard for the material before it]. It cannot step in for the sole reason that it would have weighed the evidence differently”": Uvaliyev v. Canada (Attorney General), 2021 FCA 222, 338 A.C.W.S. (3d) 295 at para. 7.
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[29] At paragraph 41 of Walls v. Canada (Attorney General), 2022 FCA 47, 2022 A.C.W.S. 742, this Court recently clarified the meaning of the terms found in paragraph 58(1)(c) of the DESD as follows:[A] perverse or capricious finding of fact is one where the finding squarely contradicts or is unsupported by the evidence […] [T]he notion of "“perversity”" has been interpreted as "“willfully going contrary to the evidence”". The notion of "“capriciousness”" or of the factual findings being made without regard to the evidence would include "“circumstances where "there was no evidence to rationally support a finding or where the decision maker failed to reasonably account at all for critical evidence that ran "counter to its findings”".
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