Other Canada Pension Plan (CPP)

Decision

[1] The Claimant’s Canada Pension Plan (CPP) retirement pension cannot be recalculated to include the years he did not contribute to the CPP because he was receiving a workers’ compensation benefit.

Overview

[2] The Claimant applied for a CPP retirement pension when he turned 65. The Minister received the Claimant’s application on June 22, 2015. The Minister awarded the retirement pension based on the Claimant’s contributions to the CPP. The Claimant appealed the amount of his CPP retirement pension. He argued that he should be allowed to drop the years in which he was in receipt of workers’ compensation benefits from his contributory period. The Minister denied his appeal on reconsideration. The Claimant appealed the reconsideration decision to the Social Security Tribunal.

Issue

[3] Can the Claimant’s CPP retirement pension be recalculated to include his period of disability while he was in receipt of workers’ compensation benefits?

Analysis

Eligibility for workers’ compensation benefits cannot be used to determine eligibility for a CPP disability pension

[4] The provisions of public or private plans for pensions vary from those of the CPP. The legislation rules that determine eligibility for a CPP disability pension are strict and inflexible^{Footnote 1}. For example, the focus of workers’ compensation benefits is causation, while the focus of CPP disability is capacity^{Footnote 2}.

[5] The Claimant worked in construction. He developed severe bilateral hearing loss from occupational noise exposure. He last worked in 1999. He was in receipt workers’ compensation benefits from the Workplace Safety and Insurance Board (WSIB) of Ontario until he turned age 65.

[6] His representative submitted that he is “seeking an adjustment in the calculation of his retirement pension, to reflect the fact that he would have been eligible to receive Canada Pension Plan disability benefits. In this way, he should be treated equal to others who are recognized as having a severe and prolonged disability.”^{Footnote 3}

[7] The Claimant supplied documentation proving that he was in receipt of workers’ compensation benefits due to occupational hearing loss^{Footnote 4}. While I acknowledge that workers’ compensation accepted the Claimant’s claim, the CPP specifically requires a Claimant to make an application for a disability pension^{Footnote 5}, which the Claimant never did.

[8] Moreover, disability benefits are not transferrable between plans. Each has its own specific legislative or contractual criteria. To qualify for a CPP disability pension, the Claimant must have a severe and prolonged disability. Disability is defined as a physical or mental disability that is severe and prolonged^{Footnote 6}. The measure of whether a disability is “severe” is not a question of whether the Claimant is unable to perform his regular job, but rather the Claimant’s inability to perform any substantially gainful work^{Footnote 7}. The hurdle for the Claimant is that his medical condition was never assessed using these criteria. In fact, based on the medical evidence in the record, in particular the vocational assessments^{Footnote 8}, it could be argued that the Claimant had capacity for alternate work within his limitations, including part-time work^{Footnote 9}.  Accordingly, I do not agree that it is a foregone conclusion that an application for a CPP disability pension would have been approved.

[9] Therefore, I find that it cannot be assumed the Claimant’s disability would have met the definition of severe and prolonged under the CPP.

The Claimant cannot exclude the years he was in receipt of workers’ compensation benefits from his contributory period

[10] Contributions to the CPP are made on employment income and not compensatory benefits. During the time the Claimant was in receipt of workers’ compensation benefits, he was not making contributions to the CPP. When his workers’ compensation benefits ended at age 65, the Claimant applied for the CPP retirement pension^{Footnote 10}. In accordance with the CPP^{Footnote 11}, his application was approved and his retirement pension started in November 2015. A detailed explanation of how his pension was calculated was provided in the Reconsideration Decision letter^{Footnote 12}. There is no allegation of a mathematical calculation error.

[11] Where the parties differ is in the calculation of the Claimant’s contributory period. The CPP allows Claimants to drop certain periods from their contributory period to increase the amount of their pension, including any months when a Claimant was eligible for a CPP or Quebec Pension Plan (QPP) disability benefit^{Footnote 13}. The Claimant is asking the Tribunal to recognize the years he was in receipt of workers’ compensation benefits as a period of disability and to exclude those years from his contributory period as a claimant in receipt of a CPP or QPP disability pension is eligible to do^{Footnote 14}.  While I considered the Claimant’s submissions, I concluded the disability exclusion only applies to months during which the Claimant was in receipt of a disability pension under the CPP or the QPP. As the Claimant never applied for a CPP disability pension, he was never determined to be disabled under the CPP.

[12] In making my decision, I looked to case law. A similar argument was made in Canada (Attorney General) v Storto, (1994) 174 N.R. 221 (Fed. C.A.). The Court determined that section 49(c) of the CPP could not apply to the Claimant’s contributory period since the Claimant was never determined to be disabled. Likewise, in Townley v MHRD (January 26, 1997), CP 3202, CEB & PG (TB), the Pension Appeals Board found that section 49(c) could only operate when there had been a determination of disability under the CPP. In that case, the Claimant was in receipt of a military disability pension, but he was not able to exclude the years that he had not made contributions to the CPP from his contributory period, in the same way the Claimant in the case before me is unable to exclude the years in which he was in receipt of workers’ compensation benefits.

[13] Therefore, I am satisfied that my decision is consistent with case law which does not allow periods of “potential disability” to be excluded from the contributory period under the CPP.

The responsibly to apply for a disability pension rests with the Claimant

[14] There is no legal obligation on the part of the Minister to inform all individuals eligible for a benefit of their entitlement to that benefit^{Footnote 15}. 

[15] The Claimant stated that he was not aware that he could apply for a CPP disability pension. He also stated that WSIB never asked him to apply for a CPP disability pension. His representative further submitted that Service Canada never made the Claimant aware of the benefit despite the fact that the Claimant submitted income tax returns each year showing workers’ compensation payments^{Footnote 16}. I am sympathetic to the Claimant’s situation, but the CPP clearly places the onus on the Claimant to apply for benefits.

[16] He also stated that he was led to believe that his WSIB benefits would continue post-retirement. I understand that the Claimant is frustrated, but I do not have the authority to investigate complaints related to the WSIB.

I cannot interpret the legislation as the Claimant argues

[17] The Supreme Court of Canada has held that:

The CPP was designed to provide social insurance for Canadians who experience a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent.  It is not a social welfare scheme.  It is a contributory plan in which Parliament has defined both the benefits and the terms of entitlement, including the level and duration of an applicant’s financial contribution.

[18] The Claimant’s representative submitted that the legislation could be interpreted in a broader way, to include individuals who would be deemed to be eligible for a CPP disability benefit. He argued that this interpretation would be in the intent and spirit of the legislation, which is designed as remedial in nature^{Footnote 17}. However, I find that what the Claimant is requesting goes beyond a broader interpretation of the CPP. It requires an act of Parliament. As a Tribunal Member, I am required to apply the provisions as they are set out in the CPP. Respectfully, I defer to lawmakers to enact the necessary changes to the CPP that the Claimant is requesting.

[19] Accordingly, I cannot interpret the legislation more broadly to exclude from the Claimant’s contributory period the years he was receiving workers’ compensation benefits.

Conclusion

[20] The appeal is dismissed.