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Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal of Canada is granted and the appeal is allowed.
Introduction
[2] The Applicant appeals from a decision of the General Division of the Social Security Tribunal of Canada, (the Tribunal), issued on April 21, 2015. In its decision, the General Division found that the Respondent had a severe and prolonged disability as of December 2009. Therefore, she was entitled to a Canada Pension Plan (CPP) disability pension with payments commencing April 2010.
Grounds of the application
[3] The Applicant submits that the General Division decision contravened the provisions of paragraph 42(2)(b) of the CPP by deeming the Respondent disabled on a date that is more than fifteen months before it received her application.
The issue
[4] Does the Appeal have a reasonable chance of success?
The governing law
[5] Leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division.Footnote 1 To grant leave, the Appeal Division must be satisfied that the appeal would have a reasonable chance of success.Footnote 2 In Canada (Minister of Human Resources Development) v. Hogervorst (2007), 2007 FCA 41 as well as in Fancy v. Canada (Attorney General), 2010 FCA 63, the Federal Court of Appeal equated a reasonable chance of success to an arguable case.
[6] There are only three grounds on which an appellant may bring an appeal. These grounds are set out in s. 58 of the Department of Employment and Social Development (DESD) Act. They are that either there has been a breach of natural justice; or the General Division erred in law; or based its decision on an error of fact made in a perverse or capricious manner or without regard for the material before it.Footnote 3
Submissions
[7] Recognising that a change in the deemed date of disability would affect the amount of pension that would be paid to the Respondent, the Appeal Division gave her an opportunity to make submissions before it decided the Application. The Respondent was asked to make her submission no later than October 8, 2015. In addition, the Respondent was advised that if the Tribunal did not receive submissions from her, the Appeal Division would issue a decision based on the material before it. At the time of writing, the Tribunal had received no submissions from the Respondent.
[8] The Applicant’s submissions were contained in the Application. Counsel for the Applicant submitted that the issue is governed by para. 42(2)(b) of the CPP. Under this statutory provision the earliest an applicant can be deemed disabled is fifteen-months prior to the date the Respondent received their application for a disability pension. The provision reads:
(2) When a person deemed disabled - a person is deemed to have become or to have ceased to be disabled at the time that is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person - including a contributor referred to in subparagraph 44(1)(b)(ii) - be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.
[9] Payment of the disability pension is governed by s. 69 of the CPP, which provides,
69. Commencement of pension - subject to section 62, where payment of a disability pension is approved, the pension is payable for each month commencing with the fourth month following the month in which the applicant became disabled, except that where the applicant was, at any time during the five year period next before the month in which the applicant became disabled as a result of which the payment is approved, in receipt of a disability pension payable under this Act or under a provincial pension plan,
- (a) the pension is payable for each month commencing with the month next following the month in which the applicant became disabled as a result of which the payment is approved; and
- (b) the reference to "fifteen months" in paragraph 42(2)(b) shall be read as a reference to "twelve months".
The facts
[10] The General Division Member noted that the Respondent applied for a CPP disability pension on July 25, 2011. Having been refused at both the initial and reconsideration stages, the Respondent appealed to the Office of the Commissioner of Review Tribunals. On April 1, 2013, her appeal was transferred to the Tribunal, where it was heard by a Member of the General Division on April 16, 2015. It is following this hearing that the General Division deemed the Applicant disabled as of December 2009. The General Division finding is contained in paragraph 45 of the decision where the Member states:
[45] The Tribunal finds that the Appellant had a severe and prolonged disability in December 2009. The combination of her symptoms were debilitating and rendered her unable to perform light duty work to retain her license as a pharmacy technician work for 4 hours for more than 3 days in 2009. According to section 69 of the CPP, payments start four months after the date of disability. Payments start as of April 2010.
[11] It is from these findings that the Applicant appeals.
Analysis
[12] The issue is readily resolved by the application of the statutory provisions; CPP para. 42(2)(b) is clear that the deemed date of disability is to be established by reference to the date that the application for the benefit is made. In Minister of Social Development v. Galay (June 3, 2004), CP 21768 (PAB) the PAB interpreted the words “the time of the making of any application” to mean at the time the Respondent (the Applicant in this application) received the application (this is usually evidenced by the date stamp on the application).
[13] Earlier, the PAB made this point in its decisions in Bueno v MHRD (April 23, 1997), CP 03253 and Sarrazin v. MHRD (June 27, 1997), CP 5300.
[14] In the Respondent’s case, July 25, 2011, is the date the Applicant received the application for CPP benefits. Thus, the General Division erred when it established the deemed date of disability by reference to the date that the Respondent stopped working. Accordingly, the appeal has a reasonable chance of success.
Conclusion
[15] The Application is granted.
The appeal
[16] Counsel for Applicant asked the Appeal Division to allow the appeal and to exercise its power under s. 59 of the DESD Act to give the decision that the General Division should have given, which is that the Respondent was disabled as of April 2010 with, pursuant to section 69 of the CPP, payment commencing four months later in August 2010.
[17] Given the clear legal position and the Tribunal’s mandate to conduct proceedings as informally and quickly as possible as the circumstances and the considerations of fairness and natural justice permit, the Appeal Division is of the view that this is an appropriate case in which to exercise the jurisdiction granted in s. 59 of the DESD Act.
[18] Accordingly, the Appeal Division allows the appeal.
Conclusion
[19] The Appeal is allowed.
Decision
[20] The Appeal Division exercises its jurisdiction under s. 59 of the DESD Act to give the decision the General Division should have given. Accordingly, it is the decision of the Tribunal that,
The Respondent’s application for a CPP disability pension having been received by the Applicant on July 25, 2011, pursuant to CPP para. 42(2)(b) and CPP s. 69, the Respondent is deemed disabled as of April 2010; payment of the disability pension commences as of August 2010.