Digests

Pensions

Judicial review of Commissioner of Review Tribunals’ decision closing appeal file without convening hearing of Review Tribunal to consider appeal—Right of appeal to Review Tribunal from decisions of Minister of Human Resources and Skills Development or delegate provided in Old Age Security Act, R.S.C., 1985, c. O-9 (OAS), s. 28, Canada Pension Plan, R.S.C., 1985, c. C-8 (CPP), s. 82—Issue whether Commissioner having jurisdiction to refuse to convene Review Tribunal to hear appeal under OAS, CPP raised for first time—Executor learning late mother never collecting OAS pension to which would have been entitled after turning 65—Seeking retroactive payment of OAS benefits but request denied—Ordinary reading of CPP, s. 82 revealing Review Tribunal hearing must be scheduled—Use of word “shall” therein indicating requirement mandatory—No ambiguity in statutory language to displace ordinary meaning of mandatory language in s. 82—Commissioner not having jurisdiction to close appeal file not only because of greater import of statutory language but because of de novo nature of Review Tribunal hearing—Because appellant having right to introduce new issue in de novo Review Tribunal hearing, Commissioner in no position to conclusively determine beforehand appeal not within Review Tribunal’s purview—By deciding not to convene Review Tribunal hearing without first alerting applicant to any perceived deficiency in notice of appeal, Commissioner denying applicant access to Review Tribunal hearing—Commissioner not having jurisdiction to close applicant’s OAS appeal file without convening Review Tribunal to hear appeal—Application allowed.

Stevens (Estate) v. Canada (Attorney General) (T-1883-08, 2011 FC 103, Mandamin J., judgment dated January 28, 2011, 28 pp.)