Canada Pension Plan (CPP) disability

Introduction & general overview

[1] This decision relates to the Applicant’s second application to rescind or amend filed with the Social Security Tribunal on April 24, 2013. (There is a second decision which relates to the Applicant’s first application to rescind or amend filed with the Review Tribunal on November 26, 2012, filed under appeal number AD‑15‑29.)

[2] The Applicant seeks leave to appeal the decision of the General Division dated October 22, 2014. The General Division dismissed her application to rescind or amend the decision of a Review Tribunal dated November 22, 2011, on the ground that the application was statute-barred under section 66 of the Department of Employment and Social Development Act (“DESDA”). The General Division therefore found it unnecessary to determine whether the information submitted by the Applicant constituted “new facts” that could not have been discovered at the time of the hearing with the exercise of reasonable diligence. The Applicant seeks leave on a number of grounds. To succeed on this leave application, the Applicant must show that the appeal has a reasonable chance of success.

Issue

[3] Do any of the grounds of appeal raised by the Applicant have a reasonable chance of success?

History of proceedings

[4] The history of proceedings is set out in the companion decision to this application. Although the issues between the two applications are the same, the outcome may well differ, as there are significant factual differences between them. The history thus bears repeating.

[5] The Applicant applied for disability benefits on February 9, 2010. Although a Review Tribunal found her disability to be severe, ultimately it dismissed her appeal for disability benefits on the basis that her disability could not be considered prolonged. The decision of the Review Tribunal was communicated to the Applicant on January 5, 2012. The Applicant did not appeal the decision of the Review Tribunal to the Pension Appeals Board.

[6] On November 26, 2012, the Applicant filed an application with the Office of Commissioner of Review Tribunals to re-open the decision of the Review Tribunal, pursuant to subsection 84(2) of the Canada Pension Plan, since repealed (the “First Application to rescind or amend”). The Applicant filed a medical report dated August 21, 2012 from her family physician Dr. Forsberg. The Applicant explained that Dr. Forsberg had only recently formed the opinion that her condition was prolonged, hence, this information had not been previously available at the time of her hearing before the Review Tribunal.

[7] A Canada Pension Plan Review Tribunal did not decide the First Application to rescind or amend filed on November 26, 2012 by April 1, 2013, and as a result, the First Application was transferred to the Social Security Tribunal (the “Tribunal”). Under subsection 261(1) of the Jobs, Growth and Long-Term Prosperity Act (“JGLPA”), if no decision had been made before April 1, 2013, in respect of a request made under subsection 84(2) of the Canada Pension Plan, as it read immediately before the coming into force of section 229, it is deemed to be an application made on April 1, 2013 under section 66 of the DESDA and is deemed to relate to a decision made, as the case may be, by the General Division of the Social Security Tribunal, in the case of a decision made by a Review Tribunal.

[8] The Tribunal wrote to the parties in or about April 2013, advising that the First Application to rescind or amend had been transferred from the Office of the Commissioner of Review Tribunals to the new Social Security Tribunal.

[9] On April 24, 2013, the Applicant filed a second application to rescind or amend, this time with the Social Security Tribunal (the “Second Application to rescind or amend”). She again included Dr. Forsberg’s medical report dated August 21, 2012.

[10] On July 30, 2014, the Applicant provided a copy of a medical record dated October 11, 2012 from her psychiatrist Dr. Helen Campbell. There was also a note from her medical social worker Lynn Simonson that an update would be forthcoming.

[11] On September 10, 2014, the Tribunal sent a letter to the parties, advising them that they could file additional documents or submissions, or, within 30 days, could give notice that they had nothing further to file. The parties had no further submissions.

[12] On September 25, 2014, the Applicant provided a second copy of a medical record dated October 11, 2012 from her psychiatrist Dr. Helen Campbell, and medical record dated August 21, 2012 of Dr. Forsberg. (The Applicant indicated that she had previously submitted the documentation but was resubmitting them “due to the letter dated September 10, 2014 stating that the letter dated July 11, 2014 was sent in error”.) The Applicant also provided a copy of a medical record dated August 14, 2014 of Dr. Forsberg and letter dated August 25, 2014 from Ms. Simonson. The Applicant noted that she would be submitting additional documentation from her psychiatrist in October 2014. She asked that the Tribunal contact her if, “this information will be too late to support [her] case”.

[13] On October 17, 2014, the Applicant provided a copy of a medical record dated October 16, 2014 from her psychiatrist Dr. Campbell.

[14] The General Division proceeded on the written record without a hearing. The General Division dismissed both the First and Second Applications to rescind or amend the decision of the Review Tribunal, on the grounds that the applications were statute- barred under section 66 of the DESDA and effectively, therefore had not been made within the prescribed statutory time limit. The General Division did not determine whether the additional medical records qualified as “new facts” and whether then, based on all of the evidence, the Applicant could be found disabled under the Canada Pension Plan on or before her minimum qualifying period.

Submissions

[15] The Applicant’s submissions duplicate those set out in the companion decision. The Applicant seeks leave on the following grounds, that the General Division:

1. (a) Refused to exercise its jurisdiction, when it failed to consider the merits of the Applicant’s Second application to rescind or amend;
2. (b) Failed to observe a principle of natural justice when it did not provide the Applicant with an opportunity to present arguments on the jurisdictional issue;
3. (c) Erred in law in incorrectly interpreting the deeming provisions set out in subsection 261(1) of the JGLPA; and
4. (d) Erred in law in incorrectly interpreting the time limit provisions in subsection 66(2) of the Department of Employment and Social Development Act (“DESDA”).

Analysis

[16] 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, for leave to be granted, some arguable ground upon which the proposed appeal might succeed is required: Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No. 1252 (FC). In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, the Federal Court of Appeal found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success.

[17] Subsection 58(1) of the DESDA states that the only grounds of appeal are 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.

[18] The Applicant needs to satisfy me that the reasons for appeal fall within any of the grounds of appeal and that at least one of the reasons has a reasonable chance of success, before leave can be granted.

a. Allegation of Refusal to Exercise Jurisdiction

[19] The General Division decided that it did not have jurisdiction to determine the merits of the Second Application to rescind or amend, as it found the Second Application to be statute-barred.

[20] If the Second Application to rescind or amend was indeed statute-barred, it would have been appropriate for the General Division to decline to assess the Second Application to rescind or amend. On this issue alone, I would have found there to be no reasonable chance of success.

[21] However, this issue is closely intertwined with the issue as to whether the General Division improperly determined that the Second Application was statute-barred. If the General Division erred in determining that the Second Application to rescind or amend was statute-barred, the General Division then should have proceeded to assess the Second Application to rescind or amend. I will need to determine therefore whether there is any basis to the allegation that the Second Application to rescind or amend may not have been statute-barred.

b. Allegation of Breach of Natural Justice

[22] The Representative for the Applicant (the “Representative”) submits that the General Division failed to observe a principle of natural justice in ensuring a fair hearing. In particular, the Representative submits that the General Division should have provided the Applicant – who was unrepresented at the time -- with an opportunity to address the limitation issue. In essence, the Applicant submits not only that she should have been provided with an opportunity to address the issue, but should have been notified that it would form the basis upon which the General Division would dismiss the Second Application to rescind or amend.

[23] I am unable to determine whether the Tribunal notified the parties to file any documents or to make any submissions addressing the requirements under section 66 of the DESDA. It may be that the Applicant was unaware that the issue would arise, given that the Respondent had not raised it as a potential defence. There may have been a breach of the principles of natural justice, if the parties were denied or not provided with an opportunity to address a material issue, which ultimately resulted in the dismissal of a claim, but this submission goes beyond that, in essentially requiring that the Tribunal or General Division notify and invite submissions from a party to address any outstanding issues which had yet to arise.

[24] Ordinarily I would be of the view that an applicant should have anticipated and been alive to the issues that might arise, and then leave the decision-maker to determine the relevancy and materiality of an issue. There may however be an arguable case on the issue as to whether the Applicant should have been notified of an issue and provided with an opportunity to address it.

c. Allegation of Errors of Law

[25] The Representative for the Applicant submits that the General Division erred in law in determining that the Second Application to rescind or amend is statute-barred.

[26] The Representative submits that the General Division erred in its interpretation of section 66 of the DESDA, and that its interpretation violates the presumption against retroactivity and absurdity and that it interferes with vested rights.

[27] The Representative submits that the General Division failed to properly consider the entire context, the scheme and object of the JGLPA and the DESDA, and the intention of Parliament. The Representative submits that the General Division erred in interpreting subsection 66(2) as a statutory bar to all applications to rescind or amend decisions which were communicated to an applicant before April 1, 2012. The Representative submits that the result of this interpretation by the General Division is “exceptionally unlikely”, particularly when the application was filed in accordance with the governing law at the time.

[28] The Representative also submits that preserving vested rights is paramount, unless: it is absolutely necessary to extinguish them, Parliament’s intent is unequivocal and it has been expressly done. The Representative submits that the facts in this case are distinguishable from those in Shahid (aka Tabingo) v. Minister of Citizenship and Immigration, 2014 F.C.A. 191, a decision upon which the General Division relied in finding the First Application to rescind or amend to be statute-barred. In Shahid, the Federal Court reviewed section 87.4(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27, and concluded that as the language used therein expressly “terminated” vested rights, it could do so retroactively.

[29] The Representative urges that statutes ought to be interpreted in such a manner as to avoid absurd results, even if it should mean modifying the meaning of the ordinary language. The Representative also urges us to resolve any ambiguity in favour of the Applicant, and if necessary, by interpreting the legislation in a “broad and generous manner”, as this would be consistent with the Supreme Court of Canada’s approach in Rizzo & Rizzo Shoes Ltd. (Re), (1998] 1 S.C.R. 27 at para 21, and with section 12 of the federal Interpretation Act, which states that, “every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects".

[30] The Representative submits that the Applicant reasonably held an expectation that both applications would be considered on their merits, as they were filed in accordance with the governing laws at the time. In fact, the governing law at the time of filing of the Second Application to rescind or amend was subsection 66(2) of the DESDA, which clearly states that an application to rescind or amend a decision must be made within one year after the day on which a decision is communicated to the appellant.

[31] Had the Applicant filed the Second Application to rescind or amend prior to April 1, 2013, her argument that she held a reasonable expectation that the application would be given consideration on the merits would be less tenuous, but as it was filed after April 1, 2013, the application to rescind or amend was already late at the time of filing, as more than one year had elapsed from the time that the decision of the Review Tribunal had been communicated to her in January 2012.

[32] The Representative for the Applicant however writes that the Social Security Tribunal should not accept the “grossly unjust result that all application (sic) regarding decisions communicated prior to April 1, 2012 are statute barred” (My emphasis). The Representative does not make any distinction in the submissions between the First and the Second Applications to rescind or amend, notwithstanding the fact that, at the time of the Second Application to rescind or amend, the governing law at that time would be of no assistance to the Applicant.

[33] What becomes less transparent is whether any of the records filed subsequently, such as the medical records filed on July 30, September 25 and October 17, 2014, form part of the First Application or the Second Application to rescind or amend, or whether they independently qualify as separate and distinct applications to rescind or amend, as might have been the case with the Canada Pension Plan Review Tribunals.

[34] On the face of it, there does not appear to be any justification to consider the Second Application to rescind or amend on its merits, but formerly, there had been no deadline or timeframe within which an applicant was required to file an application to rescind or amend. There may be an arguable case to be made as to whether the one year deadline imposed under section 66(2) of the DESDA ought not to have any retroactive effect at all, such that for those decisions which had been communicated to parties prior to April 1, 2013, the one year deadline would begin to run as of April 1, 2013.

[35] The primary issues for the parties to address on appeal include the following:

1. (a) Was the General Division required to give notice to the Applicant of an issue which was decisive of the final outcome?
2. (b) Is the Second Application indeed statute-barred by sections 261(1) of the JGLPA and section 66(2) of the DESDA?
3. (c) Do any of the following documents which were filed after the First Application form part of the Second Application, or can they be considered as having been filed as part of the First Application?
   1. (i) Medical record dated October 11, 2012 of Dr. Helen Campbell, psychiatrist;
   2. (ii) Medical record dated August 14, 2014 of Dr. Forsberg, family physician;
   3. (iii) Letter dated August 25, 2014 from Ms. Simonson, medical social worker; and
   4. (iv) Medical record dated October 16, 2014 from Dr. Campbell.
4. (d) If the Second Application is not statute-barred, which documents should the Appeal Division consider in support of the Second Application to rescind or amend?
5. (e) Do any of the documents filed in support of the Second Application to rescind or amend qualify as “material new facts”?
6. (f) If the answer to 29 (e) above is “yes”, does the document(s) establish that the Applicant was disabled as defined by the Canada Pension Plan?

[36] I invite the parties to make submissions also in respect of the mode of hearing (i.e. whether it should be done by teleconference, videoconference, other means of telecommunication, in-person or by written questions and answers) and the appropriateness for such.

Conclusion

[37] The application for leave is granted.  This decision granting leave to appeal in no way presumes the result of the appeal on the merits of the case.

[38] Finally, I order that the hearing of this appeal shall be heard at the same time as Cocking v. Minister of Employment and Skills Development (AD‑15‑29).