Social Security Tribunal of Canada

OAS/GIS Appeal Division: Your reasons for appealing

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 only for specific reasons.

You can’t appeal to the Appeal Division simply because you don’t agree with the General Division decision. If you appeal, explain clearly how the Social Security Tribunal (SST)’s General Division member (the decision-maker) made a mistake in the General Division decision. You have to base your arguments on 1 of 4 grounds of appeal. You can’t argue the same thing that you argued at the General Division. 

Ground 1: Natural justice

Legal wording The General Division failed to observe a principle of natural justice.
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, based on this ground:

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. 

Ground 2: Error of jurisdiction

Legal wording The General Division acted beyond or refused to exercise its jurisdiction.
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. 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, based on this ground:

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 to decide. 

Ground 3: Error of law

Legal wording The General Division erred in law in making its decision, whether or not the error appears on the face of the record.
Plain language wording The General Division didn’t apply the law correctly.

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 binding case law (established law from a court) that doesn’t apply to your situation
  • doesn’t apply the correct law
  • uses the correct law, but misunderstands what it means or how to apply it

Here are examples of mistakes the General Division could make, based on this ground:

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.

Example: The General Division applied the case law wrong

Arum worked for a Canadian bank. In the 1980s, it transferred her to its Caribbean operations for 5 years. When she applied for her OAS pension years later, Service Canada didn’t count those 5 years. It said those years don’t count because she wasn’t in Canada. The General Division agreed. But the law says that time abroad can count as Canadian residence if you spend it working for a Canadian-owned company. The General Division made an error of law. 

Ground 4: Error of fact

Legal wording The General Division 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.
Plain language wording The General Division got important facts wrong because it overlooked or misunderstood evidence.

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 ignores or misunderstands evidence about that fact, that’s an error of fact.

Here are examples of mistakes the General Division could make, based on this ground:

Example: The General Division didn’t consider important evidence

Service Canada gave the General Division Leila and Jacob’s tax returns, to show that they were in a common-law relationship. Based on that, the General Division determined that Leila was not entitled to the Guaranteed Income Supplement as a single person. In the file, there was a court order and two affidavits confirming that Leila and Jacob had recently separated. The General Division didn’t mention any of this in its decision. The General Division got the facts wrong because it ignored important evidence. That’s an error of fact.

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. 

New evidence isn’t a ground of appeal

At the Appeal Division, new evidence isn’t a ground of appeal. You have to show that the General Division made a mistake based on 1 of the 4 grounds of appeal. To do that, you have to use evidence the General Division had. The Appeal Division can’t look at new evidence about your claim for benefits.

Sometimes, you can ask the General Division to consider new facts and reopen your General Division decision.

Learn about reopening a decision and the limited circumstances when that’s allowed

You can apply to reopen a General Division decision and appeal the same decision to the Appeal Division at the same time.

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