Canada Pension PlanCPP II
. Weatherley v. Canada (Attorney General)
In Weatherley v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal's Stratas JA get right to the point on survivor's CPP pensions, and then follows up with more detail:
 Under the Canada Pension Plan, R.S.C. 1985, c. C-8, after a spouse dies, the surviving spouse can receive a survivor’s pension. Suppose the surviving spouse remarries and then the second spouse dies. Can the surviving spouse receive two survivor’s pensions?. Havaris v. Canada (Attorney General)
 No. Subsection 63(6) of the Canada Pension Plan limits the spouse to one survivor’s pension, albeit the higher of the two.
(2) The nature of the survivor’s pension under the Plan
 The eligibility for and calculation of the survivor’s pension under the Plan is governed by sections 58, 63 and 72 of the Canada Pension Plan.
 Anyone over the age of 35 who survives a married or common law spouse who contributed to the Plan is eligible for a survivor’s pension. The amount is calculated partly in relation to the amount of the deceased spouse’s contributions to the Plan. There are other factors: a flat-rate component for survivors under the age of 65, reductions for young survivors, and certain adjustments if the survivor has dependant children. The amount of the pension may also be adjusted downwards if the survivor is receiving other benefits, such as a disability pension: see s. 58(6).
 Subsection 63(6) fits amongst these factors. If an individual has survived two spouses, the amount of the survivor’s pension is capped at one pension. Only the greater of the contributions of the two deceased spouses is used to calculate the survivor’s pension. This reflects the insurance nature of the scheme: an individual can only lose one wage-earning spouse at a time.
In Havaris v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal considered issue estoppel in provincial family law proceedings versus federal CPP proceedings:
 The doctrine of issue estoppel applies to prevent re-litigation of an issue where the following criteria are met: the same question was decided in the previous proceeding; that proceeding involved the same parties or their privies; and the previous decision was a final one (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44,  2 S.C.R. 460 at para. 25, Penner v. Niagara (Regional Police Services Board), 2013 SCC 19,  2 S.C.R. 125 at para. 92).. Riccio v. Canada (Attorney General)
 Here the questions decided by the Ontario Superior Court and the SST-GD were not the same given the differences between the SLRA and the CPP, which define "“spouse”" differently.
 Under Part II of the SLRA, for purposes of the division of property of a deceased who died intestate, where such property has a value below $200,000.00, a "“spouse”" does not include an unmarried spouse but does include a married spouse from whom the deceased has been separated, even if they were separated for several years (SLRA, ss. 1(1), referring to the definition of "“spouse”" in ss. 1(1) of the Family Law Act, R.S.O. 1990, c. F.3, and SLRA, s. 45; General, O. Reg. 54/95 under the SLRA, ss. 1(a)). Conversely, for purposes of support of dependants, under Part V of the SLRA, a "“spouse”" is defined to include persons who are not married and have cohabited "“continuously for a period of not less than three years”" (SLRA, ss. 57(1), referring to the definition of "“spouse”" in s. 29 of the Family Law Act).
 Given the different definitions in Part II and Part V of the SLRA, a deceased’s estate may be divided between more than one spouse as that term is defined differently for different purposes. Indeed, that is precisely what occurred in the applicant’s case before the Superior Court, where she was awarded only a relatively small portion of the deceased’s estate.
 In contrast, the survivor’s pension under the CPP cannot be split in this way as the CPP provides that only one spouse may be awarded a survivor’s pension (see Canada (Minister of Human Resources Development) v. Tait, 2006 FCA 380, 356 N.R. 382 at para. 22; Carter v. Canada (Minister of Social Development), 2006 FCA 172, 351 N.R. 83 at para. 15; Dilka v. Canada (Attorney General), 2009 FCA 90, 388 N.R. 72 at para. 3).
 Under paragraph 44(1)(d) of the CPP, a survivor’s pension is payable to "“the survivor of a deceased contributor who has made base contributions for not less than the minimum qualifying period”". Subsection 42(1) defines the "“survivor”" of a contributor as "“a person who was the common-law partner of the contributor at the time of the contributor’s death”", or, if there is no such person, "“a person who was married to the contributor at the time of the contributor’s death”". The term "“common-law partner”" of a contributor is in turn defined in section 2 as "“a person who is cohabiting with the contributor in a conjugal relationship at the relevant time, having so cohabited with the contributor for a continuous period of at least one year”".
 While the case law under the CPP has relied on the case law decided under provincial family or succession law legislation for the sorts of factors to be assessed to determine the existence of a conjugal relationship (see, for example McLaughlin v. Canada (Attorney General), 2012 FC 556, 408 F.T.R. 286 at paras. 15-16; Perez v. Hull, 2019 FCA 238, 2019 CarswellNat 4956 at paras. 7 and 22-23; L.H. v. Minister of Employment and Social Development and L.K., 2021 SST 58 at para. 10; C.L. v. Minister of Employment and Social Development, 2020 SST 985 at para. 11), determinations of spousal status under provincial legislation are not binding under the CPP given the different statutory contexts.
 Thus, findings made under provincial law as to the existence of a conjugal relationship are not binding under the CPP. Several decisions of the Social Security Tribunal, while not binding on this Court, are instructive on this point: see for example K. B. v. Minister of Employment and Social Development and S. C., 2019 SST 1501 at paras. 14 and 52; J. R. v. Minister of Employment and Social Development, 2019 SST 1357 at paras. 23-24, rev’d on other grounds in Canada (Attorney General) v. Redman, 2020 FCA 209, 2020 CarswellNat 5280); see also, by analogy, A. V. v. Minister of Employment and Social Development, 2019 SST 645 at paras. 9-14 (where the Social Security Tribunal found that the meaning of "“separated”" under provincial law was not determinative for the purposes of the Old Age Security Act, R.S.C. 1985, c. O-9).
 The second requisite factor for the application of the doctrine of issue estoppel is likewise absent in the instant case as the Minister of Employment and Social Development was not a party to the case before the Superior Court but was the respondent and essential party before the SST-GD and SST-AD. Nor could the Minister be considered a "“privy”" to the deceased’s married spouse as the Minister’s interests were not allied with hers. In The Doctrine of Res Judicata in Canada, 4th ed. (Toronto: LexisNexis Canada Inc. , 2015) at pp. 80-81, Donald Lange explains that for a party in later proceedings to be considered the privy of another party who participated in earlier proceedings, there must be a community or unity of interest between the two parties; their interests "“cannot be different in substance.”" They must have "“a parallel interest in the merits of the [previous] proceeding, not simply a financial interest in the result.”" This cannot be said of the Minister and the Added Party as the Minister has an independent interest in the application of the CPP and an obligation to ensure its correct application to all claimants, which is different from the Added Party’s interest in the deceased’s estate.
In Riccio v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal allowed a CPP-D (disability) judicial review application on a practical ("real world") interpretation:
 For the purpose of the CPP, a person is deemed disabled if, under subparagraph 42(2)(a)(i), that person is determined to have a severe mental or physical disability, and as a result of the disability, they are "“incapable regularly of pursuing any substantially gainful occupation”". Once it is determined that the disability is severe, a further analysis under subparagraph 42(2)(a)(ii) is required to determine whether it is prolonged.. Parks v. Canada (Attorney General)
 Here, the only question the Appeal Division considered was whether the applicant’s functional limitations resulted in him being incapable regularly of pursuing any substantially gainful occupation under subparagraph 42(2)(a)(i).
 As noted above, some years ago, our Court in Villani directed the decision-maker faced with this question to take a "“real world”" approach, such that the applicant’s particular circumstances must be considered (Villani at paras. 38 and 39).
 Applying the jurisprudence to the matter now before this Court, I would agree with all of the applicant’s submissions and I am of the view that the AD Decision is unreasonable.
 In the case before us, the Appeal Division found that the applicant could no longer perform his former duties and work full-time (AD Decision, paras. 53, 56-57). Further, the evidence accepted by the Appeal Division was that the applicant was unable to reliably attend a job every day because of his physical and emotional limitations. Those limitations included a limited ability to sit and stand and an inability to get out of bed some days (AD Decision, para. 55).
 Nonetheless, the Appeal Division leaped to the conclusion, without any explanation, that the applicant had some residual capacity for work. The Appeal Division did not provide any analysis linking the evidence it accepted to its conclusions that the applicant is capable of "“regularly”" pursuing any substantially gainful occupation. The lack of analysis renders the AD Decision unreasonable because we are unable to understand how the decision-maker came to her conclusion. In other words, the reasons for the AD Decision fail to reveal a rational chain of analysis (Vavilov at para. 103).
 Further, I am of the view that the AD Decision is unreasonable because it fails to take a "“real world”" approach, despite saying that it would. The Appeal Division properly articulated the test set out in Villani, yet, the reasons it provided do not reflect such an approach. For instance, the AD Decision found that the applicant could have looked for a part-time work opportunity within his limitations. However, the evidence proffered by the applicant is that because of his medical conditions, he is unable to reliably attend work; even part-time employees are expected to attend work on the dates and times that they are scheduled to do so. The use of the term "“regularly”" in the text of subparagraph 42(2)(a)(i) reflects this reality. Again, there is a disconnect between the evidence and the conclusion reached by the Appeal Division.
In Parks v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal heard a judicial review application from an appeal to the Appeal Division of the Social Security Tribunal as to whether the applicant was eligible for a CPP-disability pension:
 The applicant submits that the Appeal Division erred in law by failing to consider the "“real world”" circumstances in which the applicant found herself and by failing to apply the test for disability set out in s. 42(2)(a)(i) CPP, which requires that a person who is disabled be incapable regularly of pursuing any substantially gainful occupation. The applicant submits that the Appeal Division should have applied a “"material duties"” test or a “"substantial disability"” test. The applicant further submits that the Appeal Division erred in requiring her to demonstrate that she had made efforts to obtain and sustain employment and that such efforts were unsuccessful because of her health. The applicant additionally submits that the Appeal Division erred in improperly weighing several elements of the evidence, including a report by Dr. Brennan dated October 5, 2017, a report by Dr. Finnamore, and activities undertaken by the applicant including travel to Alberta and the jet ski accident.
 At the hearing in this matter, counsel for the applicant submitted that the Appeal Division made a serious error when it wrote, at paragraph 26(h) of its decision, that it was not disputed that "“the Claimant's family physician did not state that the Claimant was unable to work until after the MQP.”" The applicant submitted that this statement was not supported by any of the medical evidence before the Appeal Division. The applicant suggested that this Court should review all of the medical evidence and determine that the Appeal Divison’s conclusion could not be reasonable.
 It is not the role of this Court to re-hear and re-weigh the evidence in this matter. However, even a cursory review of the medical evidence makes clear that the position of the applicant's family physician, Dr. Brennan, was not unequivocal until her letter of October 5, 2017 (Applicant’s Book of Authorities, vol. 1, page 280). The MQP ended on December 31, 2016. Consistent with the finding of the Appeal Division at paragraph 26(h) of its decision, Dr. Brennan’s letter of October 5, 2017 was written after the end of the MQP. At page 944 of the Applicant’s Book of Authorities, vol.1, Dr. Brennan seems to agree that as of November, 2015, the applicant was not disabled within the meaning of the CPP disability provisions. In my view, the Appeal Division considered all of the evidence in this matter as it was required to do. Its decision cannot be said to be unreasonable in this regard.
 Counsel for the applicant further submitted that the General Division erroneously made, and the Appeal Division erroneously relied on, findings regarding the applicant’s credibility. At paragraph 61 of its decision, the General Division found the applicant’s travels between New Brunswick and Alberta in the fall of 2015 and her attempt to ride a jet ski in August 2016 raised concerns about the credibility of the applicant’s testimony that she was unable to sit or stand for more than ten to fifteen minutes without pain. The Appeal Division held at paragraph 23 of its decision that the General Division had not erred in discounting the applicant’s subjective reports about her condition.
 Counsel for the applicant argued that whereas the General Division was entitled to consider the applicant’s travel and jet ski attempt when determining her ability to function, it was not entitled to make adverse assessments of credibility since the applicant had been forthright about her activities. I am unconvinced that this constitutes an error. In my view, the General Division was properly weighing the available evidence, as is its role. The General Division was entitled to accord minimal or no weight to the applicant’s testimony, and the Appeal Division was entitled to agree.
 Despite the able arguments put forward by counsel for the applicant, I am not persuaded that the Appeal Division’s analysis or conclusion was unreasonable. The Appeal Division applied the appropriate legal test, and did so reasonably. Its chain of analysis is rational and internally coherent and is defensible in light of both the facts and the law.