Other Canada Pension Plan (CPP)

Decision

[1] The appeal is dismissed.

[2] The Claimant, F. H., isn’t eligible for a Canada Pension Plan (“CPP”) disability pension. This decision explains why I am dismissing the appeal.

Overview

[3] The Claimant is 72 years old. His last job ended on October 24, 2010, when X terminated him. He worked as a locomotive engineer. He applied for an early CPP retirement pension on November 19, 2010, as he was already 60 years old. He started receiving the CPP retirement pension in December 2010.

[4] The Claimant applied for a CPP disability pension on March 26, 2013. He said he was disabled by chronic depression and fibromyalgia. His family doctor affirmed these diagnoses.^{Footnote 1} The Minister of Employment and Social Development (the “Minister”) refused his application. The Minister said the Claimant waited too long to apply for a CPP disability pension: he had been receiving a CPP retirement pension for more than 15 months when he applied. The Claimant appealed the Minister’s decision to the Tribunal’s General Division (“GD”).

[5] The Claimant’s appeal has continued for more than eight years. The previous GD Tribunal Member allowed the Claimant to proceed with a constitutional argument (the “Charter Claim”). However, the Minister appealed that decision to the Tribunal’s Appeal Division (“AD”). On November 20, 2018, the AD found that the Claimant did not satisfy the requirements for his Charter Claim and referred the Claimant back to the GD for consideration of his appeal on the merits (the “AD Decision”). The Claimant then applied to the Federal Court of Appeal (“FCA”) for judicial review of the AD decision.

[6] It appears the matter stalled at the FCA. Finally, on September 28, 2021, the FCA dismissed the Claimant’s application.^{Footnote 2} As a result, the AD Decision is considered final and the matter is now back with the GD. While the Charter Claim cannot proceed, the GD can still consider the other aspects of the Claimant’s original appeal.   

[7] The Claimant says he was disabled and unable to work by October 24, 2010. He said he was unaware of the CPP disability pension at the time. He said his delay in applying was an oversight. In the alternative, he says he lacked the capacity to apply before his March 2013 application.

[8] The Minister says the Claimant’s appeal must fail because he applied for the CPP disability pension more than 15 months after he started getting the CPP retirement pension. The Minister also says the Claimant did not meet the CPP’s incapacity requirements before applying for the CPP disability pension in March 2013. As a result, his application date cannot be adjusted.

What the Claimant must prove

[9] The Claimant must ultimately prove he had a severe and prolonged disability by December 31, 2013. This date is based on his CPP contributions.^{Footnote 3}

[10] However, the Claimant must also meet the other requirements of the Canada Pension Plan. According to the Canada Pension Plan, a person cannot receive a CPP retirement pension and a CPP disability pension at the same time.^{Footnote 4} The Canada Pension Plan also says a CPP retirement pension can be cancelled in favour of a CPP disability pension only if the applicant can be deemed disabled before the CPP retirement pension becomes payable.^{Footnote 5}

[11] As a result, the Claimant can only succeed with his appeal if he can be deemed disabled before December 2010. If he cannot be deemed disabled before December 2010, then I do not need to consider whether he had a severe and prolonged disability by December 31, 2013.

Reasons for my decision

[12] I find that the Claimant cannot be deemed disabled before the start of his CPP retirement pension in December 2010. His application for the CPP disability pension was filed too late to have a deemed disability date before December 2010. Nor can he adjust his application date through the CPP’s incapacity provisions.

What is the Claimant’s earliest deemed disability date?

[13] The Claimant’s earliest deemed disability date is December 2011. I will now explain how I arrived at this date.

–     The Claimant’s application date determines his earliest deemed disability date

[14] The Canada Pension Plan says an applicant for the CPP disability pension cannot be deemed disabled more than 15 months before to the application date.^{Footnote 6} The Claimant does not dispute that he applied for the CPP disability pension in March 2013. Dr. Sivapalan (Family Doctor) affirmed this application date.^{Footnote 7} This means the Claimant cannot be deemed disabled before December 2011.

[15] The only way the Claimant can have an earlier deemed application date is if he met the CPP’s incapacity requirements.^{Footnote 8}

–     The Claimant cannot adjust his deemed application date through the CPP’s incapacity provisions

[16] The Claimant submitted that his medical conditions left him incapable of applying for the CPP disability pension before he actually did. If he can show that he met the CPP test for incapacity, then it is possible to adjust the application date.^{Footnote 9}

[17] There are issues with the Claimant’s submission. Most importantly, the CPP test for incapacity is not the same as the CPP test for disability. The test for incapacity is much stricter. An applicant must show that they were “incapable of forming or expressing an intention to make an application before the day on which the application was actually made” [emphasis added].^{Footnote 10}

[18] This test does not consider whether the Claimant could make, prepare, process, or complete an application for disability benefits.^{Footnote 11} He could have capacity to apply under the Canada Pension Plan even if he could not complete the application form.

[19] Similarly, it is not enough to show that the idea of applying for disability benefits did not occur to the Claimant. Awareness of the CPP disability pension is not the issue. The issue is whether the Claimant could form or express an intention.^{Footnote 12}

[20] Capacity to form the intention to apply for benefits is similar to the capacity to form an intention about other choices in life.^{Footnote 13} This means I can look at the Claimant’s other activities during the time in question. I see that he completed an application for his CPP retirement pension in November 2010. Most notably, he then went to the U.S. in April 2012 to provide training to a train company.^{Footnote 14} This reflects a capacity for thought and activity far higher than the CPP capacity threshold. I further note that he would have arranged this activity before April 2012.

[21] The Claimant appears to have completed his application for the CPP disability pension himself in March 2013. He was still capable of driving by that time.^{Footnote 15} The Federal Court has confirmed that activities such as driving call for “specific intent to accomplish specific actions”, and thus could show capacity for the purposes of the Canada Pension Plan.^{Footnote 16}

[22] I do not see anything in the Claimant’s medical records to support the profound level of impairment needed to show incapacity under the CPP between November 2010 and March 2013. He may have had some issues with concentration, memory, and motivation, but that is not enough.^{Footnote 17} In fact, his psychiatrist during that time refused to complete a “Declaration of Incapacity” for him. His psychiatrist said incapacity was never discussed during his treatment.^{Footnote 18}

Conclusion

[24] I find that the Claimant isn’t eligible for a CPP disability pension because his earliest deemed disability date is one year after he began receiving a CPP retirement pension. This means he cannot cancel his CPP retirement pension in favour of a CPP disability pension. In turn, as he cannot receive both CPP pensions at the same time, he could never be eligible for the CPP disability pension.

[25] This means the appeal is dismissed.