JFCY acted as an intervener in the appeal of a matter before the Social Security Tribunal. As a result of her disabilities, Susan Hume Smith (SS, the parent) was unable to work, and for many years has been the recipient of the Canada Pension Plan (CPP) disability benefit. SS was unaware that her children were also entitled to apply for and receive a children’s benefit under the CPP. Once SS became aware of the benefit, she applied and were granted benefits, but the available retroactive benefits were limited by a legislated cap, limiting them to the previous 11 months.
SS appealed the decision to the Social Security Tribunal’s General Division, which found in her favour and held that the retroactive cap was discriminatory against children on the basis of age and status as the child of a parent with a disability under section 15 of the Charter of Rights and Freedoms.
The federal government appealed the General Division’s decision to the Tribunal’s Appeal Division. JFCY intervened in the appeal and made submissions on the pre-existing disadvantage faced by children and by children of a parent with a disability, and the discriminatory impact of the retroactive cap, which perpetuates the disadvantages faced by children as a vulnerable group, particularly where a parent is disabled. The Appeal Division allowed the appeal, and found that there was a lack of evidence to demonstrate that the cap discriminated against children of a parent with a disability.
SS filed an application for judicial review of the Tribunal’s Appeal Division to the Federal Court of Appeal. JFCY was again granted intervener status and argued that the Appeal Division had erred in its understanding of the evidence of disadvantage experienced by children and had instead been provided with ample evidence of this disadvantage and disproportionate impact, and could also take judicial notice of the situation of these vulnerable children. The FCA dismissed the application for judicial review, upholding the Appeal Division’s decision that there was insufficient evidence of disadvantage and disproportionate impact (2023 FCA 122). An application for leave to appeal to the Supreme Court of Canada has been dismissed.
