General Division’s hearing notice did not adequately explain applicant’s right to call witnesses

Both applicant, who had resided with deceased for years prior to his death, and C claimed entitlement to his Canada Pension Plan survivor benefit. After hearing attended by C but not by applicant, Social Security Tribunal General Division (General Division) determined that C was entitled to survivor benefit and applicant’s appeal to Social Security Tribunal Appeal Division (Appeal Division) was dismissed. Applicant applied for judicial review. Application granted. Applicant’s additional documents intended to show that she was deceased’s common law spouse were not admissible as they did not fall into exceptions from rule of deciding judicial review applications based on record before administrative decision-making. Applicant’s affidavit detailing her interaction with General Division staff was admissible as evidence supporting claimed denial of natural justice . While it was not role of Tribunal staff to provide legal advice and to explain importance of attending hearing to applicant, it was not open to staff member to provide incomplete or misleading information to her. Statements made by staff member as detailed in applicant’s affidavit were misleading, because they could be understand as inaccurately indicating that applicant’s interests would be defended by Minister of Employment and Social Development at hearing. Only other evidence about this crucial conversation, brief note in file that applicant was advised that her attendance was not mandatory, was not inconsistent with her sworn evidence. General Division’s hearing notice did not adequately explain applicant’s right to call witnesses at hearing or consequences of non-attendance. Appeal Division made reviewable error in concluding there had been no denial of natural justice. Matter would be remitted back to Appeal Division for re-hearing, with parties permitted to file additional evidence at that hearing.

Moreau v. Canada (Attorney General) (2019), 2019 CarswellNat 4906, 2019 FCA 237, Stratas J.A., Rennie J.A., and Mary J.L. Gleason J.A. (F.C.A.).

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