Old Age Security and Guaranteed Income Supplement Appeal Division: Getting permission to appeal
If you agree with everything in the General Division decision, there’s no reason to appeal. If you disagree with the decision, you can appeal, but first you’ll need to get permission to appeal from the Appeal Division. The Appeal Division can only grant permission for specific reasons.
To get permission you have to have a reasonable argument based on at least 1 of the following:
- The General Division didn’t follow a fair process
- The General Division acted beyond its powers or didn’t exercise its powers
- The General Division got the law wrong, or it got the facts wrong, or it made an error of mixed law and fact
Or, you have to set out evidence that the General Division didn’t have.
The General Division didn’t follow a fair process
Legal wording | The General Division failed to observe a principle of natural justice. |
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Plain language wording | The General Division didn’t follow a fair process. |
What’s natural justice?
Natural justice is about a fair process. This includes things like the right to see all evidence, the right to make your case, and the right to an impartial (unbiased) decision-maker.
Here are examples of mistakes the General Division could make:
Example: You didn’t get all the documents
The General Division didn’t give Rachael copies of all of the documents Service Canada used to make its reconsideration decision or that it gave the SST for the hearing.
Example: The hearing happened without you
The General Division held a hearing, but Imani didn’t get a Notice of Hearing telling her about it.
The General Division acted beyond its powers or didn’t exercise its powers
Legal wording | The General Division acted beyond or refused to exercise its jurisdiction. |
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Plain language wording | The General Division dealt with an issue it didn’t have the power to deal with. Or it didn’t deal with an issue it was supposed to deal with. |
What’s jurisdiction?
Jurisdiction is the SST’s legal power (authority) to deal with a dispute or issue. There are some things the SST has the power to decide, and some things it doesn’t.
Here are examples of mistakes the General Division could make:
Example: The General Division didn’t decide how much time you resided in Canada
Issa applied for an Old Age Security (OAS) pension. The General Division said it didn’t have to decide whether Issa had accumulated enough years of Canadian residence up to the General Division hearing date to determine whether he could get an OAS pension. It noticed Issa had been outside Canada for 6 months. It said he wasn’t a Canadian resident then and wasn’t eligible. But the General Division has to assess whether you’re eligible right up to the hearing date. It didn’t decide something it should have decided.
Example: The General Division made a decision about writing off money owed
The General Division decided that Paola should not have to pay money she owes because she doesn’t have that money. The General Division said the amount should be written off. The General Division can’t decide that. That’s up to the Minister of Employment and Social Development Canada (ESDC) to decide.
The General Division got the law wrong, or it got the facts wrong, or it made an error of mixed law and fact
Legal wording | The General Division erred in law, in fact, or in mixed law and fact in making its decision. |
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Plain language wording | The General Division didn’t interpret or apply the law correctly or it got the facts wrong. |
What’s an error of law?
An error of law happens when the General Division:
- makes a decision using part of the legislation (laws from Parliament) that doesn’t actually apply to your situation
- makes a decision using an interpretation of case law (established law from a court or tribunal) that doesn’t apply to your situation
- doesn’t apply the correct law
- uses the correct law, but misunderstands what it means
Here's an example of a mistake the General Division could make:
Example: The General Division didn’t explain an important part of its decision
Alex lived outside Canada for a long time before immigrating to Canada. Your OAS pension is smaller if you haven’t lived in Canada for a long time. The General Division decided that Alex is entitled to only half of the full amount. But the General Division didn’t say why. It didn’t say when Alex came to Canada or how it made the calculation. That’s an error of law, because the law says that the General Division must give reasons for its decision.
What’s an error of fact?
The General Division has to review and consider all the evidence before deciding what facts it accepts. This is called “finding the facts” or “making a finding of fact.” When the General Division makes a finding of fact that’s important to its decision, but gets the fact wrong, that’s an error of fact.
Here’s an example of a mistake the General Division could make:
Example: The General Division mixed up important dates
The General Division decided that Jamal arrived in Canada on May 6, 1996, and calculated his OAS pension based on that date. But the document the General Division relied on to make that decision says that he arrived on May 6, 1994. The General Division mixed up important dates on file. That’s an error of fact.
What’s an error of mixed law and fact?
An error of mixed law and fact happens when the General Division uses the correct law, but doesn’t apply it properly to the facts of your case.
Here’s an example of a mistake the General Division could make:
Example: The General Division didn’t correctly apply the law to the facts
Chantelle is in a common-law relationship with Victoria and receiving GIS. She never changed her marital status and is receiving the amount for a single beneficiary. The General Division decided that since Chantelle said she was in a common-law relationship in her tax return, she didn’t have to repay the GIS she received at a higher rate. The General Division should have realized that Chantelle had to tell ESDC that her marital status changed.
You have evidence the General Division didn’t have
Legal wording | Evidence that was not presented to the General Division. |
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Plain language wording | You have a new document or new testimony that the General Division didn’t have. |
Example: A document the General Division didn’t have
Besa found her separation agreement that she didn’t send in for her General Division appeal because she couldn’t find it in time and had lost hope of finding it.