Smith v. Canada (Attorney General)

Smith v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-06-01
Neutral citation
2023 FCA 122
File numbers
A-198-20, A-238-21, A-87-21
Notes
Digest
Decision Content
Date: 20230601
Dockets: A-238-21 (Lead)
A-87-21
A-198-20
Citation: 2023 FCA 122
CORAM:
PELLETIER J.A.
WEBB J.A.
RIVOALEN J.A.
BETWEEN:
SUSAN HUME SMITH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
JUSTICE FOR CHILDREN AND YOUTH
Intervener
Heard at Toronto, Ontario, on January 25, 2023.
Judgment delivered at Ottawa, Ontario, on June 1, 2023.
REASONS FOR JUDGMENT BY:
WEBB J.A.
CONCURRED IN BY:
PELLETIER J.A.
RIVOALEN J.A.
Date: 20230601
Dockets: A-238-21 (Lead)
A-87-21
A-198-20
Citation: 2023 FCA 122
CORAM:
PELLETIER J.A.
WEBB J.A.
RIVOALEN J.A.
BETWEEN:
SUSAN HUME SMITH
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
and
JUSTICE FOR CHILDREN AND YOUTH
Intervener
REASONS FOR JUDGMENT
WEBB J.A.
[1] There are three applications for judicial review related to the limitation of the payment of the disabled contributor’s child benefits (DCCB) under subsection 74(2) of the Canada Pension Plan, R.S.C., 1985 c. C-8 (the CPP) to 11 months prior to an application being made for such benefits. The three applications, and the related decisions of the Appeal Division of the Social Security Tribunal that are the subject of these applications, are:
A-198-20 – the decision (Tribunal File Number: AD-19-45) dismissing Mrs. Hume Smith’s motion to raise a new argument related to section 7 of the Canadian Charter of Rights and Freedoms (the Charter);
A-87-21 – the decision (2021 SST 117) finding that the General Division had made errors of law in concluding that the limitation on the payment of benefits under subsection 74(2) of the CPP to 11 months prior to the application being made for such benefits infringed subsection 15(1) of the Charter; and
A-238-21 – the decision (2021 SST 412) allowing the appeal of the Minister of Employment and Social Development (the Minister) and setting aside the decision of the General Division referred to above on the basis that Mrs. Hume Smith had not established that the limitation on the payment of benefits under subsection 74(2) of the CPP violated the equality rights of her children under subsection 15(1) of the Charter.
[2] By the Order of this Court dated February 22, 2022 the three applications were consolidated into one proceeding with file A-238-21 being designated as the lead file. These reasons will be applicable to all three applications. The reasons will be filed in A-238-21 and a copy thereof will be placed in the other two files.
[3] For the reasons that follow, I would dismiss all three applications for judicial review.
I. Background [4] Mrs. Hume Smith was granted a CPP disability benefit in February 1995. She has three children who were born in 1997, 1999, and 2002. Because she is receiving a disability pension under the CPP, her children were entitled to receive DCCB payments. She received inserts with letters from Service Canada explaining the availability of the DCCB, but she did not read them.
[5] If Mrs. Hume Smith had applied for the DCCB within the first year after each child was born, each child would have received a payment commencing in the month following the month in which that child was born. However, unfortunately, she did not make the appropriate DCCB application until January 2013.
[6] Subsection 74(2) of the CPP provides for the payment of the DCCB for a period of time prior to the application being made. However, subsection 74(2) of the CPP limits the retroactive payment of benefits to the 11-month period prior to the application being received. Mrs. Hume Smith therefore did not receive retroactive payment of the DCCB for each child commencing with the month after the month in which that child was born but rather only received retroactive payments for each child for the 11-month period preceding the month in which her application for these benefits was received. This limitation on the retroactive payment of DCCB to the 11 months preceding the application for these benefits is referred to herein as “the retroactivity cap”.
[7] Mrs. Hume Smith appealed to the General Division on the basis that the retroactivity cap infringed the equality rights of her children under subsection 15(1) of the Charter:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
La loi ne fait acception de personne et s’applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les déficiences mentales ou physiques.
II. Decision of the General Division (Tribunal File Number: GP-16-1586) [8] As part of its decision that subsection 74(2) of the CPP infringed subsection 15(1) of the Charter, the General Division set out its findings with respect to the differential treatment of Mrs. Hume Smith’s children in paragraphs 23 and 24:
[23] The Claimant’s children are in a distinct position from children whose parents are not disabled; they are in a distinct position from children whose disabled parent made an application within 11 months of their birth; they are in a distinct position from children, whether disabled or not, who have claims protected by provincial statutory limitation laws; and they are in a distinct position from adults who are able to apply for CPP benefits on their own behalf.
[24] I find that the Claimant has established a distinction under section 15(1) of [the] Charter with respect to the enumerated ground of age and the analogous ground of her children being the children of a disabled parent.
[9] Having found a distinction based on “age and the analogous ground of her children being the children of a disabled parent”, the General Division then considered whether the distinction discriminated “by perpetuating disadvantage or prejudice, or by stereotyping the claimant group” (paragraph 25). The conclusion of the General Division on this point is set out in paragraph 42:
[42] Bearing in mind the full context, I find that subsection 74(2) of the CPP, in so far as it limits the maximum retroactivity date for payment of DCCB to 11 months, discriminates against the Claimant’s children because they are part of a historically disadvantaged group whose socio-economic situation has been exacerbated by the limitation on retroactivity.
[10] As a result, the General Division found that each of Mrs. Hume Smith’s children “is entitled to the DCCB with an effective payment date commencing one month after” the month during which that child was born (paragraph 61).
III. Appeal Division Decisions A. First Decision of the Appeal Division [11] In its first decision, the Appeal Division dismissed Mrs. Hume Smith’s motion to raise a new issue before it – whether subsection 74(2) of the CPP infringed section 7 of the Charter:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
[12] The Appeal Division found that:
[32] … if the Appeal Division finds that the General Division made an error, and decides to give the decision that the General Division should have given, it has the power to decide whether the Respondent’s children have a section 7 Charter right to more than 11 months worth of retroactive benefits.
[13] However, the Appeal Division concluded that it would not exercise its discretion to allow Mrs. Hume Smith to raise this new section 7 argument, as Mrs. Hume Smith had not shown that there would be no prejudice to the Minister if this argument were to proceed (paragraphs 46 to 60). The Appeal Division also concluded that it would not be more efficient to include the section 7 argument in the appeal to the Appeal Division (paragraph 64).
B. Second Decision of the Appeal Division [14] In the second Appeal Division decision, the Appeal Division acknowledged that the General Division correctly stated the two-part test for discrimination as set out by the Supreme Court of Canada in Withler v. Canada (Attorney General), 2011 SCC 12, at paragraph 61 (which is set out in paragraph 61 below). The first part of the test requires a determination of whether the retroactivity cap creates a distinction based on an enumerated or analogous ground. Although a claim for discrimination necessarily involves making comparisons between the affected group and others, “the analysis should not become bogged down in a technical search for a specific comparator group” (reasons of the Appeal Division at paragraph 57).
[15] The Appeal Division noted, in paragraph 58 of its reasons, that while the General Division acknowledged that it should not seek to compare the particular group in this case with other comparator groups, it nonetheless identified four groups in paragraph 23 of its reasons (which is quoted in paragraph 8 above). The Appeal Division found that “[t]hese comparisons appear to be the basis on which the General Division concluded (at paragraphs 24 and 38) that the first part of the Withler test was met” (reasons of the Appeal Division at paragraph 59).
[16] The Appeal Division, in paragraph 60, identified three problems with the comparisons made by the General Division:
1. children whose parents are not disabled, and children whose civil claims are protected by limitation laws, are not affected by the CPP retroactivity cap in the first place;
2. children whose disabled parents made timely applications are in a distinct position from the Claimant’s children, but this is because of the timing of the applications, not because of how the retroactivity cap works; and
3. there was no evidence before the General Division that the retroactivity cap works in a way that treats children of disabled parents differently from adult CPP recipients.
[17] The Appeal Division emphasized that it was not suggesting that the General Division was required to find a precise comparator group. Rather, it referred to these groups to illustrate the flaws in the General Division’s logic, which undermined the conclusion that the first part of the Withler test was met.
[18] With respect to the finding that the retroactivity cap creates or perpetuates a disadvantage by stereotyping children of disabled parents, the Appeal Division found that the General Division committed two errors of law. First, there is no evidence that the retroactivity cap treated children of disabled parents differently from other groups. In the Appeal Division’s view, this error meant that the General Division’s reasoning in the second part of the test as set out in Withler was also incorrect.
[19] The Appeal Division also looked at whether the retroactivity cap undermines a beneficial purpose of the DCCB by depriving children of a benefit that Parliament intended to give them. The Appeal Division summarized the purpose of the DCCB in paragraph 138:
To summarise, the purpose of the DCCB is to provide a basic level of income support to children of parents receiving a CPP disability pension. The amount is fixed and is the same for all recipients. It is not granted automatically. If an application is never made, an otherwise eligible child will not receive the benefit. And the child may receive less than their full entitlement if it is made late. These limiting conditions reflect a choice by Parliament to balance the granting of the benefit with cost considerations, and considerations related to the appropriate operation of other, related benefit programs.
[20] In paragraph 145, the Appeal Division addressed the finding of the General Division that the retroactivity cap undermines the purpose of the DCCB:
The General Division’s analysis fails to recognize that the group that the retroactivity cap allegedly discriminates against – children of disabled parents – coincides precisely with the group that the DCCB was designed to help in the first place. Not all of the potential DCCB beneficiaries receive their full entitlement. Some may lose out because their application was made late, and the retroactivity cap limits their entitlement. But the General Division’s decision does not show that this happens because the law is discriminatory. For this reason, its conclusion that the retroactivity cap undermines the purpose of the DCCB is wrong.
[21] Since the Appeal Division found that the General Division made errors of law relating to section 15 of the Charter, it did not address the arguments related to section 1 of the Charter. Rather, the Appeal Division sought input from the parties concerning the appropriate remedy that it should grant.
C. Third Decision of the Appeal Division [22] The third Appeal Division decision relates to the remedy. The Appeal Division addressed two arguments made by Mrs. Hume Smith in support of her position that the matter should be returned to the General Division. The first argument was that there was a gap in the recording of the hearing before the General Division and the second argument was that the General Division did not conduct a fair hearing.
[23] The Appeal Division noted that Mrs. Hume Smith did not show how the gap in the recording prevented Mrs. Hume Smith from presenting her case to the Appeal Division. The gap in the recording occurred during part of Mr. Williamson’s oral evidence and the opening part of the Minister’s argument. The only evidentiary part of the hearing that was missing was some of Mr. Williamson’s testimony.
[24] Mr. Williamson was an expert witness for the Minister on the operation and underpinning of the CPP. The Appeal Division noted that Mr. Williamson gave both oral evidence and a written report. His evidence was about the history, purpose and operation of the CPP. He did not provide evidence concerning Mrs. Hume Smith or her children. His evidence did not address any facts that were in issue. As a result, Mrs. Hume Smith’s argument that the gap in the recording of Mr. Williamson’s evidence prevented the Appeal Division from making a decision on the application of subsection 15(1) of the Charter to the retroactivity cap was rejected.
[25] The Appeal Division referred to three examples provided by Mrs. Hume Smith of how, in Mrs. Hume Smith’s view, the General Division did not allow her the opportunity to fully present her case. These are set out in paragraph 59 of the reasons of the Appeal Division:
… [Mrs. Hume Smith] says that the General Division:
● Failed to give her more time to go through the many pages of documents the Minister filed;
● Failed to explain to her the importance of cross-examining a witness; and
● Frequently interrupted her, or cut her off.
[26] The Appeal Division found that Mrs. Hume Smith was able to effectively engage in the appeal before the General Division. This included the preparation and filing of a 44-page document outlining her evidence and arguments. Mrs. Hume Smith was aware that she could ask for an adjournment if she needed it. She was granted an adjournment to allow her to comply with the legal requirements to make a Charter challenge. The Appeal Division noted that there was nothing to indicate that Mrs. Hume Smith was “reluctant to go ahead with the hearing” (paragraph 73).
[27] While there was a large number of documents for Mrs. Hume Smith to review (over 1,600 pages), the Appeal Division noted that she had these documents for almost a year prior to the hearing. The Appeal Division noted that it is not the role of either the General Division or the Appeal Division to provide legal advice to an unrepresented claimant. In this particular case, although Mrs. Hume Smith is not a lawyer, she submitted a written argument to the General Division that is “articulate and sophisticated” (paragraph 79). The Appeal Division found that there was nothing to indicate that the General Division failed to do anything that could have made a difference to Mrs. Hume Smith’s effective participation (paragraph 82).
[28] Mrs. Hume Smith argued that the General Division did not explain the importance of cross-examining Ms. MacNeil (one of the Minister’s witnesses). The Appeal Division found, however, that the General Division was not obliged to give advice to Mrs. Hume Smith concerning whether she should cross-examine the witness.
[29] The General Division’s response of “not really” to Mrs. Hume Smith’s question of whether she was supposed to cross-examine Ms. MacNeil, was found by the Appeal Division to not mean that Mrs. Hume Smith was being discouraged from such cross-examination, but rather simply that she could choose whether to do so.
[30] In any event, there is no indication that Mrs. Hume Smith disagreed with the testimony of Ms. MacNeil. Mrs. Hume Smith did not identify what questions she would have posed to the witness or how the outcome might have been different if she would have cross-examined the witness.
[31] In addressing Mrs. Hume Smith’s argument that the General Division frequently interrupted her or cut her off, the Appeal Division referred to three medical reports that were produced by Mrs. Hume Smith. The Appeal Division noted, in paragraph 93, that Mrs. Hume Smith “says that she was not trying to use them to prove that she meets the CPP definition of incapacity”.
[32] Mrs. Hume Smith submitted that when she was trying to explain the relevance of the medical reports, the General Division did not let her do so. The Appeal Division, in response to this argument, stated:
[94] This is not how I interpret the record. Prior to the hearing the Claimant explains the relevance of the medical reports in writing. She sets out how her disability may not meet the CPP definition of incapacity. Then she goes on to say why her disability is relevant to her argument that the DCCB retroactivity cap discriminates against children of disabled parents.
[95] The member did not cut her off at the hearing on September 10, 2018. The recording of the hearing indicates that he had read what she had written and understood it. In fact, he states that he was simply confirming what the Claimant had already set out in writing about the medical reports. The Claimant agrees with him. She then reiterates the reason why she introduced the reports. The recording is clear. The member does not restrict the Claimant from saying what she had to say about her medical reports.
[96] When I look at the hearing, together with the documentary evidence, the Claimant’s position on the relevance of the medical reports was set out clearly. It was understood by the member, because it is reflected in his reasons for decision. She has not shown how this exchange led to a gap in the appeal record.
[33] Mrs. Hume Smith also submitted that the Minister was allowed to make an opening statement but she was not allowed to do so. The Appeal Division found, however, that Mrs. Hume Smith informed the General Division that what she had intended to say in her opening statement was included in her written submissions, which the General Division had read.
[34] The Appeal Division also noted that opening statements are less common in administrative tribunals than in courts because the hearing is generally shorter and not meant to be formal. The Appeal Division noted that even though “it might have been preferable for the member not to have asked the Minister to give an opening statement either”, Mrs. Hume Smith “has not explained how this different treatment of the parties led to any gaps in the appeal record. She does not point to anything of substance that she would have said, but didn’t because of the way the hearing unfolded” (paragraphs 101 and 102).
[35] Mrs. Hume Smith submitted that when she was questioning Mr. Williamson, the General Division member told her that her questions were arguments that she should make the following day, which was the day set aside for argument. The Appeal Division found that Mrs. Hume Smith was told that if she had any arguments related to Mr. Williamson’s testimony, she should raise them in oral argument. The General Division member also asked her if she had any evidence that she wanted to introduce in reply to Mr. Williamson’s evidence. She indicated that she did not have any such evidence.
[36] On the day scheduled for making oral submissions, Mrs. Hume Smith indicated that “she did not feel up to making her arguments orally that day” (paragraph 104 of the third decision of the Appeal Division) but rather would be relying on her written submissions.
[37] With respect to the particular question posed to Mr. Williamson, the point Mrs. Hume Smith wanted to make was that it was unfair to limit the retroactive payment of the DCCB to ensure the long-term viability of the CPP. The Appeal Division found that Mrs. Hume Smith made this point in her written submissions and there was nothing to indicate what she would have added to the written submissions if she had made oral submissions.
[38] The Appeal Division concluded that “[t]he member certainly did not limit her right to present her case fully” (paragraph 113).
[39] As a result, the Appeal Division decided that the matter should not be returned to the General Division, but rather that the Appeal Division would make the decision that the General Division should have made.
[40] The Appeal Division first addressed the question of whether the retroactivity cap creates a distinction based on age. In particular, whether this cap “has a disproportionate impact on children … [i.e. whether] children are denied benefits more often than other groups because of the retroactivity cap” (paragraph 123).
[41] The Appeal Division found that Mrs. Hume Smith did not produce any evidence to show that the impugned law has a disproportionate impact on children. The only evidence produced related to the impact of the retroactivity cap on Mrs. Hume Smith’s children.
[42] While the Appeal Division accepted the “general proposition that children are inherently vulnerable” (paragraph 140), this did not satisfy the requirement to show that the retroactivity cap has a disproportionate impact on children.
[43] The Appeal Division concluded that Mrs. Hume Smith had failed to establish that “the retroactivity cap has a disproportionate impact on children because of their age” (paragraph 141).
[44] The Appeal Division also found that being a child of a disabled parent is not an analogous ground for the purposes of section 15 of the Charter. The Appeal Division noted that, even if it was wrong in making this finding, the evidence did not support a finding that the retroactivity cap has a disproportionate impact on children of disabled parents. As part of this analysis, the Appeal Division found that it could not take official notice of certain studies published in academic journals that were submitted by the intervener. These studies were not introduced at the General Division hearing. In the Appeal Division’s view, these studies should have been introduced as evidence at the General Division hearing.
[45] The Appeal Division therefore allowed the Minister’s appeal and set aside the decision of the General Division. The children of Mrs. Hume Smith were only entitled to the retroactive DCCB payment as prescribed by subsection 74(2) of the CPP.
IV. Issues in the Applications to this Court [46] Mrs. Hume Smith, in Part III of her memorandum, identifies four issues:
ISSUE 1: What is the appropriate standard of review?
ISSUE 2: Was the [Appeal Division] correct when it held that there were errors made by the [General Division] that warranted the [Appeal Division’s] intervention?; And if so what is the appropriate remedy?
ISSUE 3: Was the [Appeal Division] unreasonable when it decided to make the decision the [General Division] ought to have made? And if so, what is the appropriate remedy? and
ISSUE 4: Was the [Appeal Division] unreasonable in dismissing Ms. Hume Smith’s request to argue a violations [sic] of s. 7 of the Charter?
[47] Although Mrs. Hume Smith indicated that the standard of review is a separate issue in this appeal, a particular standard of review was incorporated into each of the other issues. The question of the appropriate standard of review for a particular issue will be addressed in these reasons when the issue to which it relates is addressed.
[48] Mrs. Hume Smith raises the issue of whether the Appeal Division erred in finding that the General Division committed errors of law and whether the Appeal Division erred in deciding to make the decision the General Division should have made. However, Mrs. Hume Smith does not, in her memorandum, raise or address the issue of whether the Appeal Division erred when it determined that subsection 74(2) of the CPP did not infringe section 15 of the Charter. This will be discussed more fully below in addressing Mrs. Hume Smith’s argument submitted in relation to what Mrs. Hume Smith identified as “Issue 3”.
[49] Since each application for judicial review is an application to review a particular decision of the Appeal Division, it is important to focus on the particular decision made by the Appeal Division that is the subject of the related application and to identify the issue (or issues) raised by Mrs. Hume Smith with respect to each such decision. The issues raised by Mrs. Hume Smith in her memorandum can be linked to the particular decisions of the Appeal Division and the related applications for judicial review. The issues that will be addressed are:
Whether the Appeal Division erred in dismissing Mrs. Hume Smith’s motion to raise a new argument related to section 7 of the Charter (A-198-20 and Mrs. Hume Smith’s Issue 4);
Whether the Appeal Division erred in finding that the General Division made errors of law (A-87-21 and Mrs. Hume Smith’s Issue 2); and
Whether the Appeal Division erred in not referring the matter back to the General Division and in deciding to make the decision the General Division should have made (A-238-21 and Mrs. Hume Smith’s Issue 3).
V. Analysis A. Dismissal of the Motion to add Section 7 of the Charter (A-198-20) – First Decision of the Appeal Board [50] The parties agree that the standard of review for the decision of the Appeal Division to dismiss Mrs. Hume Smith’s motion to raise a new issue with respect to section 7 of the Charter is reasonableness. This was a discretionary decision of the Appeal Division and I agree that the standard of review is reasonableness.
[51] As noted by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paragraph 85:
… a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.
[52] The Appeal Division, in dismissing Mrs. Hume Smith’s motion, referred to paragraph 23 of the decision of the Supreme Court in Guindon v. Canada, 2015 SCC 41, in which the Supreme Court noted that the test for allowing a party to raise a new issue on an appeal is very strict:
… The burden is on the appellant to persuade the Court that, in light of all of the circumstances, it should exercise its discretion to hear and decide the issue. There is no assumption of an absence of prejudice. The Court’s discretion to hear and decide new issues should only be exercised exceptionally and never unless the challenger shows that doing so causes no prejudice to the parties.
[53] The Appeal Division found that Mrs. Hume Smith had not raised section 7 of the Charter as an issue in her appeal to the General Division. The Appeal Division also found that the legal and factual matrix related to a challenge made under section 7 is not necessarily the same as for a challenge under section 15 of the Charter. The Appeal Division found that Mrs. Hume Smith had not satisfied her burden to show that there would be no prejudice to the Minister if the section 7 argument were to proceed before it.
[54] Mrs. Hume Smith submits, in paragraph 199 of her memorandum, that “[t]he [Appeal Division] acted unreasonably in the exercise of its discretion by failing to point to specific prejudice to which the Minister would have been subjected”. In my view, this argument is contrary to the decision in Guindon, which noted that there is “no assumption of an absence of prejudice” and that the discretion should never be exercised “unless the challenger shows that doing so causes no prejudice to the parties” (paragraph 23 of Guindon). Mrs. Hume Smith had the onus to show that there would be no prejudice to the Minister. The decision of the Appeal Division that she failed to satisfy this onus was reasonable.
[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.
[56] I would therefore dismiss the application for judicial review of the decision of the Appeal Division dismissing Mrs. Hume Smith’s motion to raise the section 7 Charter issue.
B. Did the General Division Make Errors of Law (A-87-21)? – Second Decision of the Appeal Board [57] This application focuses on the Appeal Division’s determination that the General Division made errors of law in finding that subsection 74(2) of the CPP infringed the equality rights of Mrs. Hume Smith’s children under subsection 15(1) of the Charter by limiting their right to receive retroactive payments of the DCCB to the 11-month period preceding the month in which the application is made.
[58] Mrs. Hume Smith focused on section 58 of the DESDA which sets out the grounds for an appeal from a decision of the General Division to the Appeal Division:
58 (1) The only grounds of appeal of a decision made by the Employment Insurance Section are that the Section
58 (1) Les seuls moyens d’appel d’une décision rendue par la section de l’assurance-emploi sont les suivants :
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
a) la section n’a pas observé un principe de justice naturelle ou a autrement excédé ou refusé d’exercer sa compétence;
(b) erred in law in making its decision, whether or not the error appears on the face of the record; or
b) elle a rendu une décision entachée d’une erreur de droit, que l’erreur ressorte ou non à la lecture du dossier;
(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.
c) elle a fondé sa décision sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments portés à sa connaissance.
[59] Mrs. Hume Smith submits that there is no ground of appeal, as the General Division did not commit any of the errors stipulated in subsection 58(1) of the DESDA and, in particular, did not commit any error of law. However, in order to find that there was a valid appeal to the Appeal Division, it is only necessary to find that the General Division committed one error of law.
[60] Both parties submit that the standard of review for the question of whether the General Division made errors of law in relation to the Charter is correctness. In Vavilov, the Supreme Court confirmed in paragraph 53 that constitutional questions are reviewed on the standard of correctness. Therefore, the question of whether the General Division erred in law in relation to the application of the Charter will be reviewed on the correctness standard.
[61] Both the General Division and the Appeal Division referred to the decision of the Supreme Court in Withler. While the Supreme Court in Withler eliminated the requirement to find a comparator group, it noted that a claim for discrimination still requires a comparison:
[61] The substantive equality analysis under s. 15(1), as discussed earlier, proceeds in two stages: (1) Does the law create a distinction based on an enumerated or analogous ground? and (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? (See Kapp [R. v. Kapp, 2008 SCC 41], at para. 17.) Comparison plays a role throughout the analysis.
[62] The role of comparison at the first step is to establish a “distinction”. Inherent in the word “distinction” is the idea that the claimant is treated differently than others. Comparison is thus engaged, in that the claimant asserts that he or she is denied a benefit that others are granted or carries a burden that others do not, by reason of a personal characteristic that falls within the enumerated or analogous grounds of s. 15(1).
[62] In Withler, the distinction in that case was addressed in paragraphs 68 and 69:
[68] The first step in the s. 15(1) analysis is to determine whether the law, on its face or in its apparent effect, creates a distinction on the basis of an enumerated or analogous ground. In this case the question is whether the pension schemes at issue deny a benefit to the claimants that others receive. The answer to this question is clear in this case.
[69] The Reduction Provisions reduce the supplementary death benefit payable to the surviving spouses of plan members over either 60 or 65 years of age. Surviving spouses of plan members who die before they reach the prescribed ages are not subject to the Reduction Provisions. This age-related reduction in pension legislation constitutes a distinction for purposes of s. 15(1): Law [Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12]. It is obvious that a distinction based on an enumerated or analogous ground is established.
[63] The General Division, in paragraphs 23 and 38, sets out its conclusion that those who were subject to the retroactivity cap in subsection 74(2) of the CPP were treated differently from others:
[23] The Claimant’s children are in a distinct position from children whose parents are not disabled; they are in a distinct position from children whose disabled parent made an application within 11 months of their birth; they are in a distinct position from children, whether disabled or not, who have claims protected by provincial statutory limitation laws; and they are in a distinct position from adults who are able to apply for CPP benefits on their own behalf.
…
[38] I have already determined that the claimant group is being treated differently than:
● children whose parents are not disabled, disabled children whose parent made an application within 11 months of their birth;
● children, whether disabled or not, who have claims protected by provincial statutory limitation laws;
● and adults who are able to apply for CPP benefits on their own behalf.
[64] Although the General Division recites this list of persons who are treated differently from the claimant group, there is no explanation or discussion of how the retroactivity cap in subsection 74(2) of the CPP creates a distinction or difference between any of these identified persons and the claimant group. As noted by the Supreme Court, it is still necessary to find that “the law create[s] a distinction based on an enumerated or analogous ground” (Withler, at paragraph 61).
[65] The determination of the correct question of law is a question of law (Housen v. Nikolaisen, 2002 SCC 33, at paragraph 101). In examining the distinctions identified by the General Division, it is evident that it was not applying the correct legal test, i.e. the General Division was not identifying a distinction created by the retroactivity cap in subsection 74(2) of the CPP that is based on an enumerated or analogous ground.
[66] The General Division stated that a relevant distinction was between Mrs. Hume Smith’s children and children whose parents are not disabled. However, the issue in this matter is the denial of benefits that could have been received if her application had been made earlier. The retroactivity cap under subsection 74(2) of the CPP denies the payment of the DCCB for the period prior to the 11th month preceding the month of the application. There is no denial of a benefit that children whose parents are not disabled are entitled to receive, as children whose parents are not disabled do not receive any DCCB payments at all. The retroactivity cap in subsection 74(2) of the CPP does not create any distinction between Mrs. Hume Smith’s children and children of parents who are not disabled.
[67] The difference between children of disabled parents who make a timely application for the DCCB (and therefore do not lose any benefits) and children of disabled parents who do not make a timely application (and therefore are subject to the retroactivity cap) is the timing of the application. The timing of an application is not an enumerated or analogous ground.
[68] As support for its comparison between children whose claims are protected under provincial statutory limitation laws, the General Division, in footnote 12, referred to section 6 of the Limitations Act, 2002, S.O. 2002, c. 24, Schedule B. The General Division stated “[s]ection 6 of the Ontario Limitations Act, 2002 provides that any limitation period established by that Act does not run during any period that a person with the claim is a minor”. However, the General Division did not include the actual wording of this section. Section 6 of the Limitations Act, 2002 states:
6 The limitation period established by section 4 does not run during any time in which the person with the claim,
6 Le délai de prescription créé par l’article 4 ne court pas pendant toute période au cours de laquelle le titulaire du droit de réclamation :
(a) is a minor; and
a) d’une part, est mineur;
(b) is not represented by a litigation guardian in relation to the claim.
b) d’autre part, n’est pas représenté par un tuteur à l’instance à l’égard de la réclamation.
[69] The suspension of the limitation period does not apply if the minor is represented by a litigation guardian in relation to the claim. Therefore, there is no suspension of the limitation period if there is a person who can make the claim on behalf of the minor.
[70] Subsection 74(1) of the CPP provides that a claim for the DCCB can be made by another person:
74 (1) An application for a disabled contributor’s child’s benefit or orphan’s benefit may be made on behalf of a disabled contributor’s child or orphan by the child or orphan or by any other person or agency to whom the benefit would, if the application were approved, be payable under this Part.
74 (1) Une demande de prestation d’enfant de cotisant invalide ou une demande de prestation d’orphelin peut être faite, pour le compte d’un enfant de cotisant invalide ou pour celui d’un orphelin, par cet enfant ou par cet orphelin, ou par toute autre personne ou tout autre organisme à qui la prestation serait, si la demande était approuvée, payable selon la présente partie.
[71] The CPP provides that another person can make a claim for the DCCB on behalf of the child. Therefore, the more accurate comparison of the CPP to the Limitations Act, 2002 would be to a minor who has a litigation guardian appointed under the Limitations Act, 2002 who can make the claim on behalf of the mino