Order Fixing December 5, 2022 as the Day on which Division 20 of Part 4 of the Budget Implementation Act, 2021, No. 1 Comes into Force: SI/2022-59
Canada Gazette, Part II, Volume 156, Number 26
Registration
SI/2022-59 December 21, 2022
BUDGET IMPLEMENTATION ACT, 2021, NO. 1
Order Fixing December 5, 2022 as the Day on which Division 20 of Part 4 of the Budget Implementation Act, 2021, No. 1 Comes into Force
P.C. 2022-1266 December 2, 2022
Her Excellency the Governor General in Council, on the recommendation of the Minister of Employment and Social Development, under section 244 of the Budget Implementation Act, 2021, No. 1, chapter 23 of the Statutes of Canada, 2021, fixes December 5, 2022 as the day on which Division 20 of Part 4 of that Act comes into force.
EXPLANATORY NOTE
(This note is not part of the Order.)
Proposal
This Order in Council, pursuant to section 244 of the Budget Implementation Act, 2021, No. 1 (BIA 2021, No. 1), chapter 23 of the Statutes of Canada, 2021, fixes December 5, 2022, as the day on which Division 20 of Part 4, inclusive of subsections 220 to 243, of that Act comes into force to amend the Department of Employment and Social Development Act (DESDA) and the Federal Courts Act (FCA).
Objective
The objective of this Order is to bring into force amendments to the DESDA and the FCA that are designed to streamline and simplify the overall income security appeal process and make reforms to the Social Security Tribunal (SST).
Background
Created in 2013 under the authority of the DESDA, the SST hears appeals related to Employment Insurance (EI), Canada Pension Plan (CPP),footnote 1 Old Age Security (OAS) and Guaranteed Income Supplement benefits. The objective of the SST was to provide an impartial two-tier quasi-judicial process for appeals of reconsideration decisions made by the Department of Employment and Social Development (ESDC) pursuant to the EI, CPP, and OAS legislation. While the SST generated some savings over the previous model, many of the changes introduced with the Tribunal proved to be overly complicated, legalistic, and inefficient.
A third-party review of the SST undertaken in 2017 examined costs, efficiency, client satisfaction, fairness and transparency in addition to the legislative and regulatory framework, policies, organizational model, and operational processes. The resulting report, entitled Review of the Social Security Tribunal of Canada for Employment and Social Development Canada (published in 2018), made recommendations for specific changes to improve services to Canadians. Many of the recommended operational improvements have already been implemented, such as reduced timeframes to render decisions, increased number of published decisions, and the introduction of Case Navigators to assist appellants.
Other recommendations required amendments to the DESDA, as well as consequential amendments to the FCA and regulatory changes. The amendments to the DESDA and FCA were included in the BIA 2021, No. 1, which received royal assent on June 29, 2021.
The amendments include several improvements that streamline and simplify the appeals process, such as returning to a “de novo” hearing model for second level Income Security (IS) appeals. The “de novo” model will provide appellants with a fresh hearing and a new and final determination on benefit eligibility. The amendments also broaden the grounds for seeking leave to appeal first level IS decisions. The leave criteria are no longer limited to legal errors or principles of natural justice. Appellants will be granted leave if their application raises an arguable case that the General Division failed to observe a principle of natural justice or erred in law or fact, or if their application for leave sets out new evidence that had not been presented at the first level of appeal. The amendments also repeal provisions that were misused and may have complicated the appeal process for appellants, namely provisions which allowed SST decisions to be rescinded or amended. Further, the amendments provide the Chairperson of the SST the authority, with approval of the Minister of ESDC, to make Rules of Procedure, which will enable the SST to make and update procedural rules in a more agile and timely manner.
The amendments to the FCA ensure the provisions regarding the Federal Court’s jurisdiction to hear and determine applications for judicial review of second level SST decisions refer to the appropriate sections of DESDA. The amendments also remove the reference to subsection 53(3) of DESDA, pertaining to summary dismissal, as the provision was repealed. Subsection 53(3) required the first level of appeal to summarily dismiss an appeal if it was satisfied that it had no reasonable chance of success. The elimination of this provision ensures all appellants have the opportunity to present their case to the SST.
To fully implement the legislative changes, amendments to the SST Regulations were also required, along with the development of rules of procedure. Given the new SST Chairperson’s authority to make rules to govern the conduct of the Tribunal, much of what is contained in the current SST Regulations is no longer required. The new SST Regulations, 2022, which will replace the existing regulations, and the SST Rules of Procedure have been developed and will come into force at the same time as this Order.
Implications
The legislative amendments to the DESDA will provide support to vulnerable clients by ensuring parties can be represented by the representative of their choice, i.e. a non-legal representative. Access to justice for appellants will be improved by broadening the grounds to seek leave to appeal first level IS decisions and ensuring appellants can request to have their appeal hearing in the format of their choice. The amendments will also address stakeholder concerns regarding the protection of privacy by providing the Governor in Council the authority to make regulations that define the circumstances when hearings can be held in private. Overall, these changes respond to the needs of Canadians by improving the delivery of high quality, responsive, and efficient services.
Consultation
As part of the Review, extensive public consultations were held with community, legal, and labour organization representatives; appellants; and observers from ESDC. The consultations included interviews, focus groups and an online survey which received over 900 responses.
Following the Review, ESDC engaged broadly with external stakeholders from community, legal and disability advocacy organizations, and held extensive consultations with internal stakeholders from ESDC, the SST and the Administrative Tribunals Support Service of Canada. This engagement examined and developed consensus on the recommendations from the Review and explored potential policy changes, which informed the legislative amendments made through the BIA 2021, No. 1.
Contact
Tara Belanger-Zahab
Director
Policy and Partnerships
Canada Pension Plan Disability Directorate
Income Security and Social Development Branch
Employment and Social Development Canada
Email: NC-CPPD-PD-RPCI-CP-GD@hrsdc-rhdcc.gc.ca