Date: 20170322
Docket: A-130-16
Citation: 2017 FCA 56
CORAM:
|
NOËL C.J.
WEBB J.A.
WOODS J.A.
|
BETWEEN:
|
LYNDA MOSLEY
|
Applicant
|
and
|
ATTORNEY GENERAL OF CANADA
|
Respondent
|
Heard at Vancouver, British Columbia, on March 21, 2017.
Judgment delivered at Vancouver, British Columbia, on March 22, 2017.
REASONS FOR JUDGMENT OF THE COURT BY:
|
NOËL C.J.
|
CONCURRED IN BY:
|
WEBB J.A.
WOODS J.A.
|
Date: 20170322
Docket: A-130-16
Citation: 2017 FCA 56
CORAM:
|
NOËL C.J.
WEBB J.A.
WOODS J.A.
|
BETWEEN:
|
LYNDA MOSLEY
|
Applicant
|
and
|
ATTORNEY GENERAL OF CANADA
|
Respondent
|
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"
Chief Justice
"I agree
Wyman W. Webb J.A."
"I agree
Judith M. Woods J.A."
APPENDIX
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Docket:
|
A-130-16
|
(APPLICATION FOR JUDICIAL REVIEW OF A DECISION OF THE SOCIAL SECURITY TRIBUNAL OF CANADA, APPEAL DIVISION, DATED FEBRUARY 23, 2016, TRIBUNAL FILE NO. AD-15-326)
STYLE OF CAUSE:
|
LYNDA MOSLEY v. ATTORNEY GENERAL OF CANADA
|
|
|
PLACE OF HEARING:
|
Vancouver, British Columbia
|
||
DATE OF HEARING:
|
March 21, 2017
|
||
REASONS FOR JUDGMENT BY:
|
NOËL C.J.
|
||
CONCURRED IN BY:
|
WEBB J.A.
WOODS J.A.
|
||
DATED:
|
MARCH 22, 2017
|
||
APPEARANCES:
Lynda Mosley
|
For The Applicant
|
Vanessa Luna
|
For The Respondent
|
SOLICITORS OF RECORD:
Self-represented
|
FOR THE APPLICANT
|
William F. Pentney
Deputy Attorney General of Canada
|
For The Respondent
|