Other Canada Pension Plan (CPP)
Decision Information
The Applicant sustained a work-related injury in December 2000 that resulted in pain, headaches, and fatigue. This pain started in his occipital area and radiated to his left upper extremity. This pain became worse with prolonged sitting, neck extensions and rotation. His left shoulder had pain that was made worse by overhead activities and should abduction. As a result, of his chronic pain, the Applicant has not worked since 2004. Prior to the injury, he had done sheet metal work, as he has a certificate as a sheet metal journeyman.
The Applicant first applied for Canada Pension Plan disability benefits on August 9, 2010. His First Application was denied, both initially and upon reconsideration, based on the conclusion by the Minister of Employment and Social Development (the Minister) that the Applicant’s condition did not meet the criteria of a severe and prolonged disability. The negative reconsideration decision was issued by the Minister on November 17, 2011. The Applicant did not appeal the 2011 Reconsideration Decision at the time.
On April 24, 2019, the Applicant for Canada Pension Plan disability benefits for a second time based on degenerative disc disease and extreme fatigue. Again, the Applicant’s Second Application was denied both initially and upon reconsideration. On October 19, 2020, the Applicant appealed the reconsideration decision to the General Division. It allowed the Applicant’s appeal, finding that he was eligible for a Canada Pension Plan disability pension, with payments beginning as of May 2018.
The Applicant then asked the Federal Court to review the Appeal Division’s decision.
The Federal Court determined that the Appeal Division provided no analysis surrounding the retrospective application of subsection 52(2) of the Department of Employment and Social Development Act to the 2011 Reconsideration Decision, so as to bar the Applicant’s appeal of that decision to the General Division. The Federal Court couldn’t tell from the Appeal Division’s reasons whether it was conscious of the retrospectivity question raised by the timing of the facts of the case and, if so, how it analyzed the question in support of a conclusion that subsection 52(2) of the Department of Employment and Social Development Act applied on these facts. The Appeal Division’s reliance on subsection 52(2) of the Department of Employment and Social Development Act on the facts of the case, in absence of any such analysis, undermined the reasonableness of the decision on the principles explained in Vavilov.
The Federal Court found that the Appeal Division’s decision was unreasonable and therefore allowed the application for judicial review. It set aside the decision of the Appeal Division and returned the matter to a different member of the Appeal Division to re-determine the Applicant’s application for leave to appeal.
Decision Content
Citation: LS v Minister of Employment and Social Development, 2023 SST 229
Social Security Tribunal of Canada
Appeal Division
Leave to Appeal Decision
| Applicant (Claimant): | L. S. |
| Representative: | J. S. |
| Respondent: | Minister of Employment and Social Development |
| Decision under appeal: | General Division decision dated October 12, 2022 (GP-21-1182) |
| Tribunal member: | Kate Sellar |
| Decision date: | March 3, 2023 |
| File number: | AD-22-971 |
On this page
- Decision
- Overview
- Preliminary issue: What decision is the Claimant appealing?
- Issue
- Analysis
- Conclusion
Decision
[1] I am refusing leave (permission) to appeal. The appeal will not go ahead to the next step. These reasons explain why.
Overview
[2] L. S. (Claimant) first applied for a Canada Pension Plan (CPP) disability pension in August 2010. The Minister of Employment and Social Development (Minister) refused the 2010 application initially and on reconsideration. The Claimant applied again on April 24, 2019. The Minister refused the 2019 application initially and on reconsideration. This time, the Claimant appealed the Minister’s decision to this Tribunal.
[3] The General Division allowed the Claimant’s appeal, deciding that the Claimant is entitled to a disability pension. He proved that his disability was severe and prolonged within the meaning of the CPP when he stopped working in 2004. The General Division found that the Minister received the Claimant’s application in April 2019. The earliest a person can be considered disabled for the purpose of the CPP disability pension is fifteen months before they applied (fifteen months before the Claimant applied is January 2018). According to the CPP, payments start four months later. Four months later is May 2018.
[4] The Claimant requests permission to appeal the General Division’s decision. He wants his payments to start in 2010, when he first applied to for the disability pension. He notes that this makes sense, since the General Division found that he was actually disabled long before that, in 2004.
[5] I must decide whether the General Division may have made an error under the Department of Employment and Social Development Act (Act) that would justify granting the Claimant permission to appeal.
[6] The Claimant has not raised any argument for an error by the General Division that would justify granting him permission to appeal. I cannot give the Claimant leave (permission) to appeal.
Preliminary issue: What decision is the Claimant appealing?
[7] The Claimant’s appeal arrived on the form for appealing the General Division decision relating to his 2019 application. However, parts of his appeal could suggest that he’s really trying to appeal the Minister’s reconsideration decision from his 2010 application.
[8] The Claimant is unrepresented. I’ve considered whether the Claimant needed some additional information if what he meant to do was file an appeal of the reconsideration decision from his 2010 application.
[9] The General Division cannot, under any circumstances, accept an appeal filed more than a year after the Minister communicated the reconsideration decision.Footnote 1 The reconsideration decision on the Claimant’s 2010 application is more than 10 years old. There is no reasonable chance that the General Division would consider an appeal of the 2011 reconsideration decision.
Issue
[10] Has the Claimant raised any argument that would justify giving him permission to appeal to the General Division’s decision about when his disability pension payments start?
Analysis
Errors that result in giving permission to appeal
[1] I can give a claimant permission to appeal if their application raises an arguable case that the General Division:
- didn’t follow a fair process;
- acted beyond its powers or refused to exercise those powers;
- interpreted or applied the law incorrectly; or
- got the facts wrong.Footnote 2
No arguable case for an error about when the disability pension payments start
[11] The Claimant seems to argue that the General Division’s finding about when the disability pension starts is an error. He wants the pension to start from when he first applied for the disability pension in 2010.
[12] The General Division allowed the Claimant’s appeal and found that he was eligible for the disability pension. So how does the General Division (or Service Canada) decide when disability pension payments start?
[13] There are four important rules that apply to the Claimant.
Rule 1: The pension coverage rule
[14] To be eligible for a disability pension, claimants have to be covered under the Canada Pension Plan (the Plan). Based on the Claimant’s contributions, the Claimant has coverage. His coverage ended on December 31, 2006.
[15] This doesn’t mean that the Claimant is eligible for payments starting in 2006. This just means he has coverage under the Plan up to that date. There are more rules to apply next. The next rule is about disability.
Rule 2: The disability during the coverage period rule
[16] To be eligible for a disability pension, claimants must show that they have a severe and prolonged disability during their coverage period.Footnote 3 The Claimant proved he had a severe and prolonged disability when he stopped working in 2004. So he was disabled during his coverage period (because his coverage period didn’t end until December 31, 2006).
[17] This doesn’t mean that the Claimant is eligible for pension payments starting from 2004 when he became disabled. It just means that he met the requirement to show that he was disabled during his coverage period. There are more rules to apply next. The next rule covers the timing of payments when claimants apply to the CPP late.
Rule 3: The rule on the earliest a person can be considered disabled for payment
[18] Claimants cannot receive payments for a disability pension starting any earlier than fifteen months before they applied.Footnote 4
[19] Practically speaking, this means that when claimants apply for disability pensions a long time after their disability started and/or a long time after their coverage periods ended, their pension payments start later than they would like.
[20] The General Division’s decision relates to the April 2019 application. The General Division had to follow the rule: the earliest the Claimant can be considered disabled for the purpose of payment is fifteen months before he applied. Fifteen months before April 2019 is January 2018. This is many years after the Claimant became disabled in 2004.
[21] This doesn’t mean that the Claimant can have payments starting in January 2018. That is the earliest date he can be considered to be disabled for the purpose of payment. But there is one more rule to apply about payment. The next rule that applies is a waiting period rule.
4. The waiting period payment rule
[22] The waiting period rule means that payments start four months after the date claimants are considered disabled for the purpose of payment (the date we calculated in the previous rule above).Footnote 5
[23] Four months after January 2018 is May 2018. That is the first month that the waiting period is over, and the Claimant can receive his first payment of his disability pension. There are no more rules that apply that impact when the Claimant’s payments start.
The General Division applied the rules: no argument for an error
[24] The General Division applied these four rules to calculate the Claimant’s start date for payments.
[25] The Claimant’s concern on appeal is this: he wonders why he had to prove that he was disabled way back in 2004 if in the end, he only gets payments starting so much later in 2018.
[26] The answer to the Claimant’s question is that each rule applies, one at a time. Some rules require considering dates for the purpose of coverage and proving disability, and some rules require considering dates for the purpose of payment.
[27] While the Claimant ultimately proved he had a disability before December 31, 2006 so he qualified for the pension, the Minister cannot pay a pension until much later because he applied late.
[28] The earliest he could be considered to have become disabled is fifteen months prior to the date of his application. Payments can only start four months after that date. The General Division had no choice but to apply these rules. There is no argument here that the General Division made an error about the dates for the Claimant’s coverage, disability, payment, or the waiting period.
[29] The Claimant does not have an argument about those dates that has a reasonable chance of success.
[30] The rules that applied to the Claimant’s case can be confusing, so I am hopeful that this explanation helps the Claimant to understand why the Minister cannot pay him the disability pension starting from the date he stopped working.
Conclusion
[31] I have refused to give the Claimant permission to appeal. This means that the appeal will not proceed. The Claimant’s pension payments start May 2018.