[2018] 3 F.C.R. D-14
Pensions
Judicial review of Social Security Tribunal, Appeal Division (AD) decision (2016 SSTADIS 402) allowing applicant’s appeal of respondent’s decision denying applicant’s application for disability benefits under Canada Pension Plan, R.S.C. 1985, c. C-8 Social Security Tribunal, General Division (GD) dismissing applicant’s appeal — AD finding there was procedural unfairness, referring matter back to GD for new hearing before different member — Applicant suggesting herein that rather than sending matter back to GD, AD should have granted disability benefits sought — AD’s decision to send matter back to GD acceptable, defensible, reasonable — AD reasonably assessing that only a hearing in GD would allow applicant to see evidence relevant to her case, call evidence relevant to her entitlement to benefits — Court not having legal authority, jurisdiction to: grant benefits to applicant, uphold her entitlement to benefits under the Ontario Disability Support Program, award her damages — Respondent bringing motion in June 2017 for application to be granted, for a judgment granting mandamus requiring AD to grant disability benefits to applicant — Court could not grant motion — First, June 2017 motion not offering any admissible evidence or other permissible sources of fact in support of relief sought — Second, consent dismissal, discontinuance of an application differing from the allowing of an application on consent — In the case of consent dismissal or discontinuance of an application, legal status quo not changing — However, legal status quo changing when allowing application on consent — Reviewing court having to be persuaded on facts, law before granting application, changing legal status quo — In decision on June 2017 motion, Court not satisfied that it should make requested judgment — Respondent of opinion that applicant disabled within meaning of Canada Pension Plan, applicant can receive benefits — However, applicant not agreeing, inter alia, with respondent’s calculation of level of benefits — Given applicant’s position, complexity of administrative regime, lack of submissions, Court proposing that AD’s decision to remit matter back to GD be left in place — Court not seeking to cause any end result to be dictated to GD through mandamus order — Application dismissed.
Garshowitz v. Canada (Attorney General) (A-429-16, 2017 FCA 251, Stratas J.A., judgment dated December 28, 2017, 10 pp.)