The Review Tribunal reviews the information involved in an appeal
and makes a decision on whether or not a person should receive the
benefits for which they applied. The Review Tribunal is an independent
and impartial body that will take an entirely new look at your case.
It does not act on behalf of the Appellant, the Minister of SDC
or any other party to the appeal.
The Review Tribunal consists of three persons: a Chairperson,
who is always a lawyer, and two other members (see Composition
of a Review Tribunal).
Role & Responsibilities
The main purpose of a Review Tribunal is to hold a hearing and
decide an appeal. To make its decision, the Review Tribunal will
carefully and impartially consider all of the information provided
by the Appellant, the department and any other parties to the appeal,
whether or not that information was available at earlier stages
of decision-making.
The Canada Pension Plan Regulations set out some of the ground
rules for the way in which Review Tribunals carry out their responsibilities.
Review Tribunals are also guided by common law principles of procedural
fairness. These principles apply to the procedures followed by Review
Tribunals, rather than the substance of their decisions. (Review
Tribunals must apply the law as written; they have no discretion
to change or ignore the CPP or OAS legislation.) Generally speaking,
the key principles of procedural fairness that relate to Review
Tribunals include:
- the right to know the case you have to meet (the issues and
the possible consequences of the proceeding), and the right to
have an opportunity to respond (to have a hearing and present
your case to the Tribunal).
- the right to have the decision made by unbiased Tribunal members.
- the right to have the decision made only by the Tribunal members
who heard the appeal.
Review Tribunals are also guided by the OCRT's Mission
Statement and Code of Conduct.
Powers
A Review Tribunal can only apply the Canada Pension Plan or Old
Age Security legislation and make a decision based on the facts
of your particular case. The Review Tribunal is not bound by the
guidelines and policies of SDC.
The powers of Review Tribunals are set out in the two Acts under
which appeals can be made. A Review Tribunal can confirm or vary
a decision of the Minister of SDC made under section 81 or subsection
84 of the Canada Pension Plan or under subsection
27.1(2) of the Old Age Security Act.
Under subsection 84 (1) of the Canada Pension Plan, these powers
include:
Under Canada Pension Plan
A Review Tribunal can:
- Allow an appeal; that is, reverse or change an SDC decision.
- Allow an appeal in part; that is, reverse or change an SDC
decision, but not to the extent requested by an appellant.
- Deny the appeal; that is, confirm or maintain an SDC decision.
- Determine that it has no authority to decide the issue brought
before it.
A Review Tribunal cannot:
- Change or ignore the legislation passed by Parliament.
- Make a decision based on compassionate or equitable grounds.
- Hear appeals involving claims of administrative error or incorrect
advice on CPP matters, or to forgive overpayments.
Under Old Age Security Legislation
A Review Tribunal can:
- Allow an appeal; that is, reverse or change an SDC decision.
- Allow an appeal in part; that is, reverse or change an SDC decision,
but not to the extent requested by an appellant.
- Deny the appeal; that is, confirm or maintain an SDC decision.
- Determine that it has no authority to decide the issue brought
before it.
A Review Tribunal cannot:
- Change or ignore the legislation passed by Parliament.
- Make a decision based on compassionate or equitable grounds.
- Hear appeals where the question at issue relates to the determination
of income which falls under the Tax Court of Canada for a decision.
- Hear appeals involving claims of administrative error or incorrect
advice on OAS matters, or to forgive overpayments.
In addition, Review Tribunals can re-open their own decisions in
some circumstances (see Re-opening a Review Tribunal
Decision).
Re-opening a Decision of a Review Tribunal
under Subsection 84(2)
Once a Review Tribunal renders a decision on an appeal, that decision
becomes final and binding1.
The only way to have a Review Tribunal decision changed is to
- successfully appeal to the Pension Appeals Board; or
- successfully demonstrate, on a re-opening of the Review Tribunal
decision, that you have "New Facts" and that you satisfy
the other eligibility criteria for the benefit you claim.
If you have additional information that was not before the Review
Tribunal at the time of your hearing, you may request that this
information be used to re-open the Review Tribunal's decision. An
application form for making
this request is available on our website or can be obtained by calling
our office free of charge at 1-800-363-0076.
What are "New Facts"?
There is no definition in the Canada Pension Plan as to
what constitutes "New Facts". However, the Pension
Appeals Board and the Federal Court of Canada (Trial
and Appeal Divisions) have
provided us with guidance as to the meaning of "New Facts".
In order for information to be considered as "New Facts"
it must meet the following two-part test:
"NEW FACTS" TEST:
First, the evidence must not have been discoverable before the
original hearing by the exercise of reasonable diligence2,
and
Second, there must be a reasonable possibility as opposed to probability
that the evidence, if admitted, could lead the Review Tribunal to
change its original decision3.
Note: these decisions are available on our website or by telephone
request to our office.
What happens when you request a re-opening of the Tribunal's
decision?
Our office will arrange for a Review Tribunal to be constituted
to review the additional information. The Review Tribunal will also
have the materials that were presented at the original hearing.
Wherever possible, the 3 members of the Review Tribunal will be
the same 3 members who sat for your original hearing. We will ask
you whether you would like to attend in person to present your additional
information. If you would like to attend we will schedule a hearing
at a location that is convenient to all parties. If you do not feel
it is necessary for you to attend in person, the Review Tribunal
will review this additional information in your absence. In either
event our office will send you the Tribunal's decision in writing.
How do I prove I am disabled?
To receive a disability benefit, you must meet the requirements
of the Canada Pension Plan legislation. In addition to
proving that your disability is both severe4
and prolonged5
as defined in Section 42 of the Canada Pension Plan, you
must also establish that you meet the contributory requirements
of the Canada Pension Plan. Your Minimum Qualifying Period
will be determined according to the number of valid years of contributions
you have made to the Canada Pension Plan. Your Minimum
Qualifying Period is the date by which you must be found disabled.
It is, therefore, important for you to ensure that the additional
information you send us relates to your medical condition as of
or before your Minimum Qualifying Period date. Please call our office
if you have any questions.
What happens if the Review Tribunal determines that your
additional information does not meet the test for "New Facts"?
If the Review Tribunal determines that the additional information
does not meet the test for "New Facts", you may apply,
in accordance with Section 18.1 of the Federal Court Act, for judicial
review to the Federal Court of Canada - Trial Division. You have
30 days from the date of receipt of the Review Tribunal's decision
to apply to the Federal Court, although the Court has the discretion
to extend that time period.
There is no right of appeal to the Pension Appeals Board if the
Review Tribunal determines that the additional information does
not meet the test for "New Facts6"
. However, you do have the option of asking for an extension of
time to appeal the original Review Tribunal's decision to the Pension
Appeals Board. The decision to grant Leave to Appeal rests with
the Pension Appeals Board. For more information about this procedure,
please call them free of charge at 1-888-640-8001.
1
Section
84(1) of the Canada Pension Plan
2
Gary
Leonard v. MHRD (March 17, 1998) CP 03893, Pension
Appeals Board
3
Mian
v. The Attorney General of Canada 2001 FCT 433
4
According
to Section 42(2)(a)(i) of the CPP a disability is severe only
if by reason thereof the person in respect of whom the determination
is made is incapable regularly of pursuing any substantially gainful
occupation.
5
According
to Section 42(2)(a)(i) of the CPP a disability is prolonged
only if it is determined in prescribed manner that the disability
is likely to be long continued and of indefinite duration or is
likely to result in death.
6
Maria
Oliveira v. MHRD 2004 FCA 136
See FAQ - Question 4.4.
Composition of a Review Tribunal
A Review Tribunal is made up of three Panel
Members chosen by the Commissioner of Review Tribunals. There
are three categories of Panel Members: Legal, Medical and General.
A Review Tribunal includes a Chairperson, who is always a lawyer
and a member of the bar of a province, and two other members. If
the appeal involves a CPP disability benefit, at least one of the
other two members must be a qualified health care professional from
the Medical category. Members in the General category are not required
to have medical or legal expertise, however they have a rich and
diverse background in community service.
In the case of appeals involving issues under the Charter of Rights
and Freedoms, it is the practice of the Commissioner to include
at least two lawyers on the Review Tribunal.
|