Canada Pension Plan (CPP) disability

Decision

[1] The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.

Introduction

[2] On January 16, 2013, a Review Tribunal determined that the Applicant could not cancel his Canada Pension Plan retirement pension in favour of a Canada Pension Plan disability benefit. On January 23, 2013, the Applicant received the decision of the Review Tribunal. On April 18, 2013, the Applicant filed an application requesting leave to appeal (the "Application") with the Appeal Division of the Social Security Tribunal (the "Tribunal"), within the time permitted under the Department of Employment and Social Development (DESD) Act.

Issue

[3] Does the appeal have a reasonable chance of success?

The law

[4] According to subsections 56(1) and 58(3) of the DESD Act, "an appeal to the Appeal Division may only be brought if leave to appeal is granted" and "the Appeal Division must either grant or refuse leave to appeal".

[5] Subsection 58(2) of the DESD Act provides that "leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success".

Applicant's submissions

[6] The Applicant set out a number of grounds of appeal in support of his application for leave to appeal the decision of the Review Tribunal. They include the following, that:

1. i) He was unaware that he was required to make a request to cancel the retirement pension within six (6) months after payment had commenced.
2. ii) He had been unaware of and therefore had not considered applying for Canada Pension Plan disability benefits prior to 2011.
3. iii) He had been provided erroneous advice by various medical practitioners as to when he should apply for Canada Pension Plan disability benefits, as they felt that he should wait until a more definitive medical prognosis could be made following his stroke.
4. iv) The Review Tribunal based its decision on erroneous findings of fact, without regard to the material before it. In particular, the Review Tribunal found that the Applicant had retired in 2009, that he had been successfully treated for his bipolar condition and that he had confused the disability tax credit with the Canada Pension Plan disability benefit.

Respondent's submissions

[7] The Respondent has not filed any written submissions.

Analysis

[8] Although a leave to appeal application is a first, and lower, hurdle to meet than the one that must be met on the hearing of the appeal on the merits, some arguable ground upon which the proposed appeal might succeed is needed in order for leave to be granted: Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No. 1252 (FC).

[9] Subsection 58(1) of the DESD Act sets out the grounds of appeal as being limited to the following:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[10] The decision of the Review Tribunal is considered a decision of the General Division.

[11] There are no provisions in either the Act or the Social Security Tribunal Regulations which would allow me to grant leave on the grounds i) to iii) set out above in the submissions of the Applicant, as these do not fall within the grounds of appeal. (In any event, had the Applicant been aware of and applied for Canada Pension Plan disability benefits prior to the date when he commenced receiving retirement benefits, he would have still been required to meet the statutory requirements in order to qualify for disability benefits. Having a diagnosis of a bipolar disorder (and/or other medical conditions) alone is not sufficient to qualify for disability benefits.)

[12] While the Review Tribunal may have erred in its findings of fact, namely, that the Applicant had retired in 2009 rather than 2010, that he had been successfully treated for his bipolar condition, which the Applicant refutes, and that he had confused the disability tax credit with the Canada Pension Plan disability benefit, these were not facts upon which the Review Tribunal had based its decision. These facts had no bearing on the issues which the Review Tribunal was required to take into consideration in determining whether the Applicant could cancel his retirement benefits in favour of a disability pension. In determining whether the Applicant was permitted to cancel his retirement pension in favour of a disability pension, the Review Tribunal examined the following:

1. a) The date upon which the Applicant began receiving retirement pension (which in this case was June 2010) and
2. b) The date upon which his application for Canada Pension Plan disability benefit was received (which in this case was October 5, 2011).

[13] The issue as to whether the Applicant might have been disabled any earlier than 15 months before his application for Canada Pension Plan disability benefits was received is of no relevance to the issue as to whether he could cancel his retirement pension, given the provisions of the Canada Pension Plan.

[14] Subsection 66.1(1.1) of the Canada Pension Plan provides that a recipient can cancel the retirement pension in favour of the disability benefit only if the recipient is deemed to be disabled before the retirement pension becomes payable and subsection 42(2)(b) provides that the earliest a person can be deemed disabled is 15 months before the date of the application for disability benefits.

[15] Despite the sympathy I feel for the Applicant's case, there is no basis which I can find which would permit me to grant leave. I am satisfied that the appeal has no reasonable chance of success.

Conclusion

[16] For the reasons stated above, the Application is refused.