Docket: T-134-23
Citation: 2024 FC 769
Vancouver, British Columbia, May 21, 2024
PRESENT: Madam Justice St-Louis
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BETWEEN: |
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THE ESTATE OF YVONNE BENNETT
NEIL BENNETT |
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Applicants |
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and |
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THE ATTORNEY GENERAL OF CANADA |
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Respondent |
JUDGMENT AND REASONS
I. Introduction
[1] The Applicants seek judicial review of the decision of the Social Security Tribunal of Canada Appeal Division [the Appeal Division] dated December 15th, 2022 [Decision] that denied leave to appeal a decision of the Social Security Tribunal of Canada General Division -Income Security Section [the General Division]. The Appeal Division found the appeal had no reasonable chance of success per subsection 56(2) of the Department of Employment and Social Development Act, LC 2005, c 34 [DESDA].
[2] Mr. Bennett represented the Estate throughout this matter and I acknowledge his efforts. Per the applicable reasonableness standard of review, the decision must be based on an internally coherent and rational chain of analysis and it must be justified in relation to the facts and law that constrain the decision maker (Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 85). Mr. Bennett has not convinced me that the Decision is not reasonable. For the reasons that follow, the application for judicial review will be dismissed.
II. Context
[3] Sadly, Ms. Yvonne Bennett [the Deceased] passed away on February 11, 2020.
[4] On February 20, 2020, Mr. Bennett, the Deceased’s son and estate executor applied for a Canada Pension Plan death benefit following his mother’s passing.
[5] On March 25, 2020, the Minister of Employment and Social development [Employment Canada] refused Mr. Bennett’s application, stating that not all the eligibility requirements of the Canada Pension Plan, RSC, 1985, c C-8 [the Act] were met. More specifically, the refusal letter indicated that the Deceased must have made valid contributions in at least 10 years between January 1966 and November 1995, and that the files showed that the Deceased had made valid contributions in only eight years, that is 1974, 1975, 1976, 1977, 1978, 1981, 1982, and 1984.
[6] In July 2020, Mr. Bennett requested reconsideration of this refusal. On January 27, 2021, Employment Canada maintained its original decision.
[7] On April 30, 2021, Mr. Bennett appealed the negative eligibility decision before the General Division. Relevant to these proceedings, Mr. Bennett argued that subsections 48(4) and (5) of the Act applied to reduce the Deceased’s contributory period, and in turn the required number of contribution years, so that the Estate was eligible to the death benefit. On August 14, 2022, the General Division dismissed the appeal and concluded the Estate of Ms. Yvonne Bennett [Estate] was not eligible for the Canada Pension Plan death benefit.
[8] In its reasons, in regards to the general drop-out provision, the General Division stated that the Estate’s understanding of subsections 48(4) and (5) of the Act was not correct and that the general drop-out provision did not affect the Deceased’s contributory period. The General Division outlined that these subsections apply when a benefit is payable and that they are not used to calculate a contributory period to determine if a benefit will be payable. As such, the General Division found that the Estate was not eligible for payment of the death benefit because the Deceased did not make enough contributions to qualify for it.
[9] On November 13, 2022, the Estate sought leave to appeal the General Division’s decision. It submitted that the main argument presented to the General Division had not been discussed, and argued that one contributory period should have been established in November 1995, and then carried forward to determine the contributor’s minimum qualification period for the death benefit. Before the Appeal Division, the Estate submitted, essentially, that the dispute pertained to the application of the child-rearing provision and more specifically, the general drop-out provision to the contributory period.
[10] On December 15, 2022, the Appeal Division refused the Estate leave to appeal. It concluded that the Estate did not have an arguable case and that it had not identified any grounds of appeal that would have a reasonable chance of success on appeal.
[11] Relevant to these proceedings, with respect to the general drop-out provision, the Appeal Division concluded the Estate misinterpreted and misapplied subsection 48(4) of the Act. The Appeal Division stated that looking at sections 46 to 48.2 of the Act together indicates that they govern the calculation of the amount of the retirement pension, and not the eligibility for the death benefit. The Appeal Division acknowledged that subsection 48(4) of the Act provides for a 15 percent reduction in the number of months in the contributory period, but that is only for the purpose of calculating the “average monthly pensionable earnings”
, which in turn are used to calculate the amount of a claimant’s monthly retirement pension. As such, the Appeal Division found that subsection 48(4) of the Act had no relevance to the death benefit and that the General Division was not wrong to find it inapplicable to the Estate’s claim.
[12] The Appeal Division’s decision is the subject of this application for judicial review.
III. Parties’ Position
[13] At the heart of the present case is the reasonableness of the Appeal Division’s conclusion that the general drop-out provision is not relevant to the calculation of the contributory period for determining eligibility to the death benefit.
[14] Essentially, the Applicants argue that the general drop-out provision of subsection 48(4) of the Act should be considered to reduce the contributory period used to determine the Estate’s eligibility to the Canada Pension Plan death benefit.
[15] They assert that there is no reason, essentially, to distinguish between the contributory period calculated in 1995 to determine the amount of the Deceased’s retirement pension and the one calculated in 2020 to determine if her Estate is eligible to receive the death benefit. In their Memorandum of Fact and Law, the Applicants argued mainly that there is one contributory period, established in November 1995 when the retirement pension was calculated, and that it should have remained intact and carried forward to calculate the minimum qualifying period for the death benefit eligibility.
[16] The Applicants also raise the following sub-arguments:
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The contributory period established in November 1995 was overlooked and a new one was created for the death benefit;
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Employment Canada never acknowledged the application of the general drop-out provision in their documentation;
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The child rearing drop-out provision must be determined in months, not in full years; and
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The Appeal Division incorrectly cited the Abbott v Canada (Minister of Social Development), 2005 CP21427 (PAB) decision to dispose of the calculation of the child rearing drop-out provisions.
[17] The Applicants ask the Court to issue an order to Employment Canada to pay to either of them the death benefit of $2500.00.
[18] The Respondent, the Attorney General of Canada [AGC], concedes the Appeal Division unreasonably applied the child rearing drop-out provision, and that a total of two years and six months, i.e., 30 months, should be deducted from the Deceased’s contributory period rather than the two years that was actually deducted.
[19] However, the AGC asserts that the Appeal Division reasonably found the appeal had no reasonable chance of success, and that despite the mistake in the child rearing drop-out calculation, the Court should decline to grant the Application for judicial review as the result remains unchanged. In any event, the AGC submits the Court should decline to grant the remedy sought by the Applicants and, should the Court find the decision unreasonable, it should remit the matter to the Appeal Division for a new determination.
IV. Legislative framework
A. Grounds for appeal
[20] Appealing decisions of the General Division to the Appeal Division requires seeking leave (subsection 56(1) of the DESDA). Per subsection 58(1) of the DESDA, as it read at the relevant time, the only possible grounds of appeal were that the General Division (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) erred in law in making its decision, whether or not the error appears on the face of the record; or (c) 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.
[21] Per subsection 58(2) of the DESDA, as it read at the relevant time, leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success. The threshold for granting leave to appeal a General Division decision is low, requiring an applicant only demonstrate an “arguable case”
(Ingram v Canada (Attorney General), 2017 FC 259 [Ingram] at para 16) on one of the grounds of appeal (Respondent Record at p 200, para 23).
B. Canada Pension Plan death benefit
[22] The relevant provisions are reproduced in Annex for ease of reference.
[23] In regard to the death benefit, the relevant provisions are:
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paragraph 44(1)(c) of the Act which provides that a death benefit shall be paid to the estate or succession of a deceased contributor who has made base contributions for not less than the minimum qualifying period;
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subsection 44(3) of the Act which outlines the calculation of the minimum qualifying period;
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subsection 2(1) of the Act where the term “contributory period” is defined, and where it is stated that, for the purpose of the present case, it has the meaning assigned by section 49; and
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section 49 of the Act that defines the contributory period that is relevant to calculate the minimum qualifying period.
[24] Section 57 of the Act outlines the amount of death benefit payable once eligibility has been established.
C. General drop-out provision
[25] Section 48 of the Act is under the title of “retirement pension”
in the division that pertains to the calculation of benefits and provides instructions to calculate the retirement pension payable to a contributor. Subsection 48(4) of the Act, still under the title of “retirement pension”
, states the deductions allowed under what is referred to as the general drop-out provision.
V. Analysis
A. The Standard of Review Is Reasonableness
[26] The Decision is to be reviewed on the reasonableness standard; none of the circumstances that rebut the reasonableness standard are present in this case (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at paras 23, 33, 53). The Decision is reasonable if it is justified in light of the facts and law, intelligible, and transparent (Vavilov at para 99).
[27] As mentioned by Justice Lafrenière in Taghvaei v Canada (Attorney General), 2021 FC 106 [Taghvaei] at paragraph 11:
On a reasonableness review, the Court must examine the administrative decision maker’s reasons and determine whether the outcome and the reasoning that brought it to bear demonstrate an “internally coherent chain of reasoning, justified in light of the relevant legal and factual constraints”: Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, at para 2; Vavilov, at para 85. If it does, the reviewing court should not interfere (Vavilov, at paras 85, 99).
[28] Justice Lafrenière further underlines that “[the] Court owes deference to decisions from the [Appeal Division] and it ought to only interfere when a decision is unreasonable”
(Taghvaei at para 12 citing Atkin v Canada (Employment and Social Development), 2020 FCA 19 at para 6; Cameron v Canada (Attorney General), 2018 FCA 100 at para 3; Omoregbe v Canada (Attorney General), 2018 FC 741 at para 7).
[29] The onus is on the party challenging the decision to prove that it is unreasonable. Flaws must be more than superficial for the reviewing court to overturn an administrative decision. The court must be satisfied that there are “sufficiently serious shortcomings”
(Vavilov at para 100).
[30] The Court must thus decide, in this case, if the Applicants have shown that it was unreasonable for the Appeal Division to conclude that the appeal had no chance of success and deny the Applicants the leave they sought.
B. The Decision Has Not Been Shown To Be Unreasonable
(1) Child rearing provision
[31] As mentioned previously, the AGC acknowledges that the Appeal Division erred in calculating the child rearing provisions, omitting to consider the months in year 1968. I agree. A total of 30 months – two years and six months – should thus have been deducted from the contributory period rather than the 24 months that was actually deducted. As such, there is no need to discuss the Applicants’ sub-arguments relating to the child rearing provision.
(2) General drop-out provisions
[32] The Applicants have not shown the Appeal Division erred when it concluded that section 48 of the Act had no relevance to the death benefit. The Applicants have likewise not shown that the Appeal Division erred when it concluded that the General Division was not wrong to find subsection 48 was inapplicable to the Estate’s claim.
[33] The general drop-out provision provided in subsection 48(4) of the Act, and on which the Applicants rely, is used when calculating the amount of a retirement pension; it does not relate, or apply to the determination of eligibility as part of the death benefit.
[34] I acknowledge that section 49 of the Act, although located under the same title, is used to calculate the contributory period mentioned in subsection 44(3) that pertains to the death benefit. However, I note this is expressly warranted by subsection 2(1) of the Act that directs us to section 49 for the definition of the term contributory period. There is no such reference with respect to the general drop-out provision.
[35] I agree with the AGC in that the Applicants are confusing calculating eligibility for the death benefit with calculating the amount of a retirement pension. The Applicants incorrectly assert that the general drop-out provision applies to the Deceased’s contributory period because of subsection 57(3) of the Act. However, while subsection 57(3) does refer to the general drop-out provision, it does so as part of the formula for calculating the amount of death benefit payable once eligibility has been established, and in addition, only when a contributor died before 2019 (ss 57(1)(a)(i), 57(2) and 57(3) of the Act). It does not apply in this case, as eligibility has not been established.
[36] The Applicants have not established, as was their burden (Vavilov at para 100), that the Appeal Division erred when it found that the subsection 48(4) general drop-out provision was irrelevant to the determination of the Estate’s eligibility to the death benefit.
[37] The Deceased needed 10 years of valid contributions, even once the child rearing deduction was adjusted upwards to 30 months, in order to be eligible for the death benefit. However, the evidence revealed she only contributed eight years.
[38] Finally, I acknowledge that the Appeal Division did not outline, compare or discuss the exclusion or exclusions applied to calculate the contributory period of 1995 – when the retirement pension was established – with the exclusion applied to calculate the contributory period of 2020- when eligibility to the death benefit was assessed.
[39] However, I note Supreme Court of Canada’s comments, at paragraphs 91 and 128 of Vavilov, stating that administrative decision makers do not need to respond to all the arguments submitted. I also note that the record contains no evidence pertaining to the exclusion or exclusions that were applied in calculating the contributory period in 1995, when the Deceased retired. The fact that the Appeal Division did not address this particular argument, in the context of this case, does not justify the Court’s intervention.
[40] Ultimately, I understand Mr. Bennett may be disappointed and would have preferred another outcome. However, this is not a reason for the Court to intervene.
[41] The Appeal Division reasonably found the Estate’s appeal had no chance of success.
C. The Court Should Decline to Grant a Remedy
[42] The AGC submits that the matter should not be remitted to the Appeal Division, despite its error on the child rearing calculation because the result of the case would be inevitable (Vavilov at para 142). The AGC asserts that though it concedes the Appeal Division unreasonably applied the child rearing provision, dropping out an additional six months does not change that the Estate is not eligible to receive the death benefit.
[43] I agree. Removing an additional six months under the child rearing provision reduces the Deceased’s contributory period to 27 years and five months. The Deceased had to contribute for one third of the years wholly or partly within her contributory period; the contributory period of 27 years and 5 months is still rounded up to 28 years (subsection 44(4) of the Act) and one third of 28 years is 9.33 years, which rounds up to 10 years of required contributions (Canada (Minister of Human Resources Development) v Skoric, 2000 CanLII 17109, [2000] 3 FC 265 at paras 39-41). The Deceased only had eight years of valid contributions.
[44] The Appeal Division’s finding on the general drop-out provision is, in this case, an independently sufficient reasonable basis for dismissing the Applicants’ application for leave to appeal (Marinaj v Canada (Citizenship and Immigration), 2020 FC 548 at paras 72-76).
[45] I am satisfied, based on the foregoing, that the Applicants’ appeal would have inevitably failed to raise an arguable case because the general drop-out provision in subsection 48(4) of the Act does not apply to the Deceased’s situation.
[46] As such, although the Appeal Division did err in the child rearing calculation, that error is not fatal and it does not change the ultimate outcome; it was reasonable for the Appeal Division to conclude the Estate’s appeal had no chance of success. Remitting the matter would serve no useful purpose.
VI. Conclusion
[47] For the above reasons, this application for judicial review will be dismissed. The Applicants have not demonstrated that the Appeal Division’s conclusion, that their appeal had no reasonable chance of success, is unreasonable, given the evidence on the record and the applicable law. Following the AGC’s suggestion, no costs will be awarded.