On this page
Reasons and decision
Introduction
[1] The Appellant’s application for a Canada Pension Plan (CPP) disability pension was date stamped by the Respondent on June 25, 2013 (GD2-28). The Respondent denied the Appellant’s initial request for a disability pension at the initial stage. The Appellant did not apply for reconsideration within 90 days of receiving the initial denial. On April 9, 2014, the Respondent denied the Appellant’s request for an extension of the 90 day time limit to apply for reconsideration.
[2] The Appellant filed a Notice of Appeal with the General Division of the Social Security Tribunal (Tribunal) on June 4, 2014.
[3] The hearing of this appeal was On the Record for the following reasons:
- The member has decided that a further hearing is not required.
- The issues under appeal are not complex.
- There are no gaps in the information in the file or need for clarification.
- Credibility is not a prevailing issue.
- This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
The law
[4] Section 81 of the CPP states that a person may within 90 days of receiving the Minister’s decision to deny entitlement to a disability, request a reconsideration of that decision. The Minister may before or after the expiration of those 90 days allow the request to be submitted in the proper form within a longer period of time.
[5] Subsection 74.1(3) of the CPP Regulations states that Minister may allow a longer period to make a request for reconsideration if the Minister is satisfied that: 1) there is a reasonable explanation for requesting a longer period and 2) the person has demonstrated a continuing intention to request reconsideration.
[6] Section 82 of the CPP allows a party to appeal the Minister’s decision to deny further time to make a request to the Tribunal.
Issue
[7] The Tribunal must determine if the Minister exercised his discretion judicially when he refused to allow a longer period of time for the Appellant to request reconsideration of the initial decision letter denying her a disability pension.
Evidence
[8] The Respondent denied the Appellant’s initial request for a disability pension in a letter dated October 16, 2013. The Appellant was advised that she had 90 days from the date she received this letter to request a reconsideration of the Respondent’s decision. The Appellant was provided with a telephone number to contact if she had any questions regarding the denial of her claim or her right to request reconsideration (GD2-25).
[9] On November 4, 2013 the Appellant faxed the Respondent’s denial letter to her case manager at Great West Life (GD1-9).
[10] On March 4, 2014, the Appellant signed a Declaration & Reimbursement Agreement with Great West Life dated February 7, 2014. Page three of the declaration states that she understands that her group plan requires her to apply for any other disability benefits that she or another member of my family becomes entitled to or receives because of her disability. She also understands that she may be asked by Great-West Life to reapply for such benefits or appeal decisions refusing her application(s) where considered appropriate (GD1-17).
[11] On March 10, 2014the Respondent received a letter from the Appellant dated March 5, 2014 requesting reconsideration of its decision to deny her entitlement to a disability pension. In that letter she states that Great West Life advised her yesterday that she needs to appeal the decision. She explains that she was participating in a work hardening program and was in a lot of pain; her family doctor sent her to see specialist, she was sent for another MRI and she is scheduled to have back surgery on March 18, 2014 (GD2-18-21).
[12] In a letter dated March 24, 2014 the Respondent advised the Appellant that her request for reconsideration was filed beyond the 90 day time limit. The Respondent advised the Appellant that it would consider extending the time for requesting reconsideration if she provided a reasonable explanation why it should do so and also was able to demonstrate that she had a continuing intention to request reconsideration (GD2-16).
[13] In a letter received on March 31, 2014, the Appellant advised the Respondent that it was her understanding that “once you denied you were denied”. She never knew she was to re-apply until she was told by Great Lest Life on March 5, 2014 (GD2-12).
[14] On April 7, 2014, the Minister considered the explanation provided by the Appellant in her letter dated March 5, 2014. In addition the Minister also considered:
- If the 90 day time period had actually expired. It was determined that the Appellant’s reconsideration request was received 135 days after the decision letter was sent. A period of ten days from the mailing of the initial decision was mailed was provided;
- Whether the Appellant had a medical condition which would have affected her ability for reconsideration within the 90 day deadline;
- Whether any extenuating circumstances, such as unexpected event that was beyond her control had occurred;
- If the Appellant had made any attempt to contact the Respondent with the 90 day time limit (GD2-9-10).
[15] In a letter dated April 9, 2014, the Respondent advised the Appellant that the reasons she provided had been considered but that her request for additional time to request reconsideration was denied. The Appellant was advised of her right to file an appeal with the General Division of the Income Security Section of the Social Security Tribunal (GD2-7-8).
Submissions
[16] The Appellant submits that she should be allowed a longer period to request a reconsideration of the Minister’s decision because she was unaware that her disability insurer required her to appeal the Minister’s initial denial of her entitlement to CPP disability benefits.
[17] The Respondent submits that the Appellant should not be given a longer period of time to request a reconsideration because she did not provide a reasonable explanation for the delay in submitting her request and did not demonstrate a continued intent to request a reconsideration within the 90 day time limit.
Analysis
[18] The decision of the Minister to grant or refuse a late reconsideration request is considered a discretionary decision. The Minister’s discretion must be exercised judicially or judiciously (Canada (A.G.) v. Uppal 2008 FCA 388).
[19] According to Canada (A.G.) v. Purcell, [1996] 1 FCR 644, a discretionary power is not exercised “judicially” if it can be established that the decision-maker:
- acted in bad faith,
- acted for an improper purpose or motive,
- took into account an irrelevant factor,
- ignored a relevant factor, or
- acted in a discriminatory manner.
[20] The role of the Tribunal is therefore not to determine if the Respondent made the correct determination but whether it exercised its discretion in a judicial manner. The Appellant has the burden of proof in establishing that the Respondent failed to do so.
[21] In its review of the file, the Tribunal found no evidence that the Respondent acted in bad faith or acted with an improper purpose or motive when it made its determination. The Respondent advised the Appellant of her right to request reconsideration within 90 days of her initial request being denied. The evidence confirms that the Appellant made her request for reconsideration outside the 90 day time frame. The Respondent determined that the date by which the Appellant would have been deemed to receive the initial denial letter was October 26, 2013; this allowed ten days from the date of the initial letter to account for mailing. The Respondent correctly calculated that the Appellant’s request for reconsideration was received 135 days from the date she would have been deemed to have received the initial letter of denial. In the Tribunal’s opinion, the Respondent thoroughly and methodically reviewed the Appellant’s file and correctly determined that her request for reconsideration was made outside of the required timeframe.
[22] In addition, the Respondent, in accordance with the CPP Regulations, advised the Appellant within fourteen days of receiving her request, of her right to request an extension of time and of the factors it would consider in exercising its discretion to do so. In the Tribunal’s opinion, the Respondent’s reply to the Appellant was timely and the information that was provided was straightforward and easy to understand. Having reviewed the Respondent’s conduct towards the Appellant, the Tribunal, finds no evidence that it acted in bad faith or acted in a discriminatory manner.
[23] The Tribunal also finds the Respondent did not take any irrelevant evidence into consideration when making its determination. In its assessment, the Respondent notes that the Appellant states in her letter of March 5, 2014 that “I thought that the decision was final”. The Respondent’s analysis indicates that it took the Appellant’s explanation into consideration but did not consider it to be reasonable in light of the information provided in its initial letter of denial; which advised the Appellant that she had 90 days to request a reconsideration of the Minister’s decision if she wished to do so.
[24] The Appellant also submitted that her disability insurer, Great West Life, did not advise her that she was required to request reconsideration until after the limit for doing so had already expired. The Tribunal finds that the Declaration & Reimbursement Agreement dated February 7, 2014, confirms the explanation she provided to the Respondent. The Tribunal finds no evidence that the Respondent did not accept the Appellant’s explanation; it simply did not agree or accept that the actions of the third party, namely the insurer Great West Life, constituted a reasonable ground for giving the Appellant additional time to apply for reconsideration.
[25] In her request for an extension of time, the Appellant also advised the Respondent that she was scheduled for back surgery on March 18, 2015. The analysis conducted by the Respondent indicates that it took the Appellant’s medical condition into consideration and found it not to be a reasonable explanation for her delay. The Tribunal notes that the Appellant’s medical condition did not prevent her from submitting a request for reconsideration on March 5, 2015 after Great West Life instructed her to do so.
[26] In addition to the Appellant’s medical condition, the Respondent considered whether there were any unexpected event or extenuating circumstances that occurred which would have prevented the Appellant from applying or expressing her ongoing intention to request reconsideration within the required time period. The only extenuating circumstances that were contained in the Appellant’s file were the Appellant’s upcoming surgery and her claim with Great West Life. The Tribunal was, as a result, unable to find any other factors that the Respondent ignored or failed to consider when assessing the Appellant’s request for additional time to apply for reconsideration.
[27] Regarding the Appellant’s continuing intention to request reconsideration, the Respondent considered the fact she made no attempt to contact the Respondent until the 90 day time period had expired. The Tribunal notes that the Respondent did provide the Appellant with a telephone number to contact in the initial decision if she had any questions regarding her right to request reconsideration. The Appellant’s statement that she thought that the initial decision was final may explain why she faxed her initial denial letter to Great West Life and did not contact or submit a request for reconsideration to the Respondent. In the Tribunal’s opinion, the fact the Appellant made no attempt to contact the Respondent after her initial claim was denied was relevant to determining whether she had a continuing intent to request reconsideration. The Appellant confirmed in writing that she had no intention of requesting reconsideration until after Great West Life required her to do so. Again, the Respondent did not consider the explanation provided by the Appellant to be sufficient grounds to exercise its discretion in her favor.
Conclusion
[28] Having reviewed all of the evidence contained in the file, the Tribunal finds that the Respondent’s discretion was exercised judicially.
[29] The appeal is dismissed.