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Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal is granted.
[2] The Respondent became disabled under the Canada Pension Plan in January 2008. Pursuant to section 69 of the Canada Pension Plan he is entitled to a Canada Pension Plan disability pension commencing May 2008.
Introduction
[3] The Respondent applied for a Canada Pension Plan (CPP) disability pension in January 2009. He claimed that he was disabled by chronic back and knee pain. The Applicant denied his claim initially and after reconsideration. The Respondent appealed to the Office of the Commissioner of Review Tribunals. Pursuant to the Jobs, Growth and Long-term Prosperity Act, the matter was transferred to the General Division of this Tribunal. On September 8, 2014 the General Division allowed the appeal and found the Respondent disabled in October 2007 which was 15 months prior to his application date.
[4] The Applicant sought leave to appeal from this decision. It did not dispute the General Division decision that the Respondent was disabled. It argued that the General Division erred in law as the earliest that the Respondent could be found to be disabled and still meet the contribution requirements of the CPP was January 2008. It also requested that the Appeal Division give the decision that the General Division should have given, and find the Respondent disabled in January 2008. The Respondent filed no response to this application. I must determine whether the Applicant should be granted leave to appeal, and if so, whether to give the decision that the General Division should have given in this case.
[5] The parties were invited to file submissions. Neither party filed submissions. I considered the General Division decision, the Respondent’s Record of Earnings and the Application for Leave to Appeal in making this decision
Analysis
[6] In order to be granted leave to appeal, the Applicant must present some arguable ground upon which the proposed appeal might succeed: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC). The Federal Court of Appeal has also found that having an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. v. Canada (Attorney General), 2010 FCA 63.
[7] The Department of Employment and Social Development Act governs the operation of this Tribunal. Section 58 of the Act sets out the only grounds of appeal that can be considered to grant leave to appeal. Section 59 of the Act sets out what remedies the Appeal Division may grant on an appeal (these provisions are set out in the Appendix to this decision).
[8] In order to be eligible to receive a CPP disability pension, a claimant must establish a Minimum Qualifying Period. This means that he must make valid contributions to the CPP during a specified time period in order to be eligible to receive the disability pension. Paragraph 44(2) of the CPP provides that a claimant must make contributions to the CPP for at least four of the last six calendar years included wholly or partly in the contributor’s contributory period. A contributory period commences when a claimant turns 18 years of age, and ends with the month in which he is determined to have become disabled.
[9] The Applicant argued that the General Division decision contained an error in law as it found the Respondent disabled in October 2007. The Applicant contended that this resulted in the Respondent’s contributions to CPP in 2008 not being included in the calculation of his Minimum Qualifying Period, resulting in him not establishing this requirement. The earliest date that the Respondent could be found to be disabled and still meet the contributory requirements for a Minimum Qualifying Period (MQP) was January 2008.
[10] The Record of Earnings demonstrated that the Respondent contributed to CPP in 2005, 2006, 2007 and 2008. If he was disabled in 2007, his contributory period ended in 2007, and his contributions to CPP in 2008 are not included in the calculation of his MQP. In this case, because the Respondent had only 4 years of contributions in the relevant time period, he could not have a MQP established without including his 2008 contributions. Therefore, I find that the General Division decision contains an error in law as it found the Respondent disabled in 2007, which makes it impossible for him to meet the MQP requirement under the CPP. On this basis, I am satisfied that the Applicant has presented a ground of appeal that has a reasonable chance of success on appeal.
[11] If the Respondent became disabled in January 2008, his contributions to the CPP in that year are included in the calculation of the MQP, and he would meet this requirement. This is because subparagraph 44(2)(a)(i) provides that contributions from whole or partial years are included to calculate the MQP and the Respondent would then have contributions to the CPP in four out of six years.
[12] The General Division concluded that the Respondent was disabled in February 2007 when he was last employed by a third party. The Applicant did not allege that the General Division erred in finding that the Respondent had a severe and prolonged disability. I see no reason to disturb the conclusion that he was disabled.
[13] Based on a review of the facts of this case, I am satisfied that it is appropriate for me to give the decision that the General Division should have given in this case. For the reasons set out above the Application for Leave to Appeal is granted, and I find that the Respondent became disabled under the CPP in January 2008. Pursuant to section 69 of the CPP his disability pension payments will commence in May 2008.
Appendix
Department of Employment and Social Development Act
58. (1) The only grounds of appeal are that
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (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.
(2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
59. (1) The Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate or confirm, rescind or vary the decision of the General Division in whole or in part.