Docket: A-130-16
Citation:
2017 FCA 56
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CORAM:
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NOËL C.J.
WEBB J.A.
WOODS J.A.
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BETWEEN:
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LYNDA MOSLEY
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
NOËL C.J.
[1]
This is an application for judicial review by
Linda Mosley (the applicant) of a decision of the Social Security Tribunal –
Appeal Division – upholding an earlier decision issued by the General Division
to the effect that a one sum payment of pension benefits received by the
applicant is to be allocated over the 11 month period prior to its receipt
thereby giving rise to an overpayment of employment insurance benefits paid to
her pursuant to the Employment
Insurance Act, S.C.
1996, c. 23.
[2]
The legislative
provisions which are relevant to the brief analysis which follows are set out
in the appendix to these reasons.
[3]
After being let go from her employment, the
applicant applied for, and was granted by the Canada Employment Insurance
Commission (Commission), employment insurance benefits (EI benefits) with an
effective start date of June 2, 2013.
[4]
After being unable to find further employment,
the applicant submitted an application for benefits under the Canada Pension
Plan, R.S.C., 1985, c. C-8 (CPP). Under this regime, a person between the
ages of 65 and 69 who submits an application for a retirement pension can –within
certain limits – choose the date of commencement of their retirement pension
(subsection 67(3.1) of the CCP). The applicant, having reached the age of 67,
elected to start receiving her monthly CPP retirement benefits in April of
2014, and to receive single payment for the monthly benefits to which she was
entitled to for the period of May 1, 2013 to March 31, 2014.
[5]
In August of 2014, the Commission informed the
applicant that the CPP pension benefits which she received for that period
created an overpayment of EI benefits because subsection 36(14) of the Employment
Insurance Regulations, S.O.R./96-332 (EI Regulations) required that the
amount representing her weekly CPP benefits be deducted from the EI benefits
paid to her between June, 2013 and March, 2014 as provided by section 19 of the
EI Act.
[6]
The applicant petitioned the Commissioner to
reconsider its decision to no avail. She then appealed the Commission’s
decision to the General Division, which ruled against her. Ultimately, she
appealed the General Division’s decision to the Appeal Division again without
success. The applicant now seeks to have this last decision judicially
reviewed.
[7]
The issue turns on whether the retroactive
payment of CPP benefits was “paid or payable on a
periodic basis” in which case it must be allocated pursuant to
subsection 36(14) of the EI Regulations, or constitutes a “lump sum on account or in lieu of a pension” to be
allocated prospectively pursuant to subsection 36(15), as the applicant
contends. A related issue is whether, for the employment insurance purposes,
the CPP benefits became payable when paid in April of 2014, or whether they
were payable as of May 1, 2013.
[8]
Decisions of the Appeal Division interpreting
its own statute or statutes closely connected to its mandate are to be reviewed
on a standard of reasonableness (Alberta (Information and Privacy
Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 39).
[9]
Both divisions of the Social Security Tribunal
concluded that the CPP benefits received by the applicant in one sum
constituted earnings under paragraph 35(2)(e) of the EI Regulations and
that these benefits were payable on a periodic basis as of May 1, 2013. As a
result, they had to be allocated for the period for which they were payable
pursuant to subsection 36(14) of the EI Regulations.
[10]
I can detect no error in this reasoning. For the
purpose of allocating earnings under the EI Regulations, subsection 36(14)
directs that “moneys […] that are paid or payable to a
claimant on a periodic basis shall be allocated to the period for which they
are paid or payable” under the applicable pension plan. Under the CPP
regime, a contributor is entitled to benefits periodically, i.e.: “monthly”
(subsection 46(1)); payment of benefits for months preceding the approval of
the retirement pension is made in one sum (subsection 62(1)); and the pension
is payable from the date when it commences to be payable, being in this case the
first day of the 11 month period chosen by the applicant i.e., May 1,
2013 (paragraph 67(3.1)(c)).
[11]
On this last point, the applicant insisted
during the hearing that the time of commencement was April 2014 because that
was the date which she chose in her application. Although she has not tendered
her application in evidence, it can be seen from the record that the applicant
chose to predate the time of commencement using the 11 month retroactive option
provided for in paragraph 67(3.1)(c) with an effective date of May 1,
2013 (Respondent’s record, pp. 169 and 201). Indeed, if the applicant was
correct in asserting that she chose April, 2014 as the commencement date under
paragraph 67(3.1)(d), she would not be entitled to the retroactive
payment that has given rise to this litigation.
[12]
Because under the CPP, the benefits were payable
commencing on May 1, 2013, they must be allocated accordingly, even if received
in one payment in April of 2014.
[13]
I would therefore dismiss the application for
judicial review. As no costs were sought, none should be awarded.
"Marc Noël"
"I agree
Wyman W. Webb J.A."
"I agree
Judith M. Woods
J.A."
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