Canada Pension Plan (CPP) disability

Reasons and decision

Decision

[1] The appeal is allowed.

Introduction

[2] This is an appeal of a decision of the General Division (GD) of the Social Security Tribunal summarily dismissing the Appellant’s appeal for Canada Pension Plan (CPP) disability benefits on the basis that the Appellant did not have sufficient contributions to meet the requirements of the minimum qualifying period (MQP). The GD dismissed the appeal because it was not satisfied that it had a reasonable chance of success.

[3] No leave for appeal is necessary in the case of an appeal brought under subsection 53(3) of the Department of Employment and Social Development Act (DESDA), as there is an appeal as of right when dealing with a summary dismissal from the GD.

[4] Both parties have filed written submissions. Having determined that no further hearing is required, this appeal before me is proceeding pursuant to subsection 37(a) of the Social Security Tribunal Regulations.

Overview

[5] The Appellant submitted an application for CPP disability benefits in May 2013. He indicated that he was last employed as a seasonal fisheries worker in May 2012 and claimed that he had been disabled since suffering a workplace injury in 2007. The Respondent denied his application at the initial and reconsideration levels in letters dated, respectively, August 28, 2013 and December 3, 2013.

[6] On December 16, 2013, the Appellant appealed these denials to the GD. In a decision dated June 11, 2015, the GD summarily dismissed the Appellant’s appeal on the basis that he did not have sufficient earnings and contributions to establish an MQP.

[7] On July 15, 2015, the Appellant filed an appeal of the summary dismissal decision with the Appeal Division (AD) of the Social Security Tribunal alleging errors on the part of the GD. On April 7, 2016, the AD decided that an oral hearing was unnecessary and the appeal would proceed on the basis of the documentary record for the following reasons:

1. There were no gaps in the file or need for clarification;
2. The form of hearing respected the requirements under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

[8] The Appellant’s submissions were set out in his Notice of Appeal dated July 15, 2015. The Respondent’s submissions were received on August 31, 2015. The Appellant forwarded 76 pages of medical documents on September 16, 2016 and a decision of the Workers’ Compensation Appeals Tribunal on December 14, 2015. In a letter dated March 9, 2016, the Respondent objected to the potential admission of late documents and what it regarded as an attempt to retry the Appellant’s claim on its merits. The Appellant replied by way of a letter dated March 16, 2016.

The law

[9] According to subsection 58(1) of the Department of Employment and Social Development Act (DESDA) the only grounds of appeal are that:

1. (a) The GD failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The GD erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The GD 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] Paragraph 44(2)(a) of the CPP states that in order to qualify for a disability benefit an individual must have made sufficient contributions in either four of the last six years or three of the last six years, where the claimant has at least 25 years of valid contributions.

[11] Subsection 44(2.1) of the CPP provides for the possibility of an MQP based on prorated contributions:

(2.1) For the purposes of determining the minimum qualifying period of a contributor referred to in subparagraph (1)(b)(ii), the basic exemption for the year in which they would have been considered to have become disabled, and in which the unadjusted pensionable earnings are less than the relevant Year’s Basic Exemption for that year, is an amount equal to that proportion of the amount of that Year’s Basic Exemption that the number of months that would not have been excluded from the contributory period by reason of disability is of 12.

Standard of review

[12] Until recently, it was accepted that appeals to the AD were governed by the standards of review set out by the Supreme Court of Canada in Dunsmuir v. New Brunswick^{Footnote 1}. In matters involving alleged errors of law or failure to observe principles of natural justice, the applicable standard was held to be correctness, reflecting a lower threshold of deference deemed to be owed to a first-level administrative tribunal. In matters where erroneous findings of fact were alleged, the standard was held to be reasonableness, reflecting a reluctance to interfere with findings of the body tasked with hearing factual evidence.

[13] The Federal Court of Appeal decision, Canada (MCI) v. Huruglica^{Footnote 2}, has rejected this approach, holding that administrative tribunals should not use standards of review that were designed to be applied by appellate courts. Instead, administrative tribunals must look first to their home statutes for guidance in determining their role.

Issues

[14] The issues before me are as follows:

1. What standard of review applies when reviewing decisions of the GD?
2. Did the GD err in summarily dismissing the Appellant’s claim based on a finding that he had not made sufficient CPP contributions to establish a MQP?
3. Can the AD consider additional documentary evidence submitted by the Appellant?

Submissions

[15] The Appellant made no submissions on the appropriate standard of review or the level of deference owed by the AD to determinations made by the GD. He claimed that he was disabled from work under the provisions of the CPP and alleged that the GD made errors of law and fact in denying his claim.

[16] The Respondent’s submissions on the standard of review were made prior to Huruglica, which was released on March 29, 2016. The submissions discussed in comprehensive detail the standards of review and their applicability to this appeal, concluding that a standard of correctness was to be applied to errors of law, and reasonableness was to be applied to errors of fact and mixed fact and law.

[17] The Respondent then conceded that the GD erred in law and fact, and its decision to summarily dismiss the Appellant’s claim was unreasonable. It submitted that the Appellant had a potential pro-rated MQP of July 2010, and the GD should have also assessed whether he became disabled between January and July 2010 before concluding that he did not meet the contributory requirements under paragraph 44(l)(b) of the CPP. It recommended that the AD refer the matter back to the GD for a redetermination in a de novo hearing.

Analysis

a) Standard of Review

[18] Although Huruglica deals with a decision that emanated from the Immigration and Refugee Board, it has implications for other administrative tribunals. In this case, the Federal Court of Appeal held that it was inappropriate to import the principles of judicial review, as set out in Dunsmuir, to administrative forums, as the latter may reflect legislative priorities other than the constitutional imperative of preserving the rule of law. “One should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies.”

[19] This premise leads the Court to a determination of the appropriate test that flows entirely from an administrative tribunal’s governing statute:

… the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the IRPA [Immigration and Refugee Protection Act] and its object… The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD [Refugee Appeal Division].

[20] The implication here is that the standards of reasonableness or correctness will not apply unless those words or their variants are specifically contained in the founding legislation.

Applying this approach to the DESDA, one notes that paragraphs 58(1)(a) and (b) do not qualify errors of law or breaches of natural justice, suggesting the AD should afford no deference to the GD’s interpretations.

[21] The word “unreasonable” is nowhere to be found in paragraph 58(1)(c), which deals with erroneous findings of fact. Instead, the test contains the qualifiers “perverse or capricious” or “without regard for the material before it.” As suggested by Huruglica, those words must be given their own interpretation, but the language suggests that the AD should intervene when the GD bases its decision on an error that is clearly egregious or at odds with the record.

b) Summary Dismissal

[22] In its decision, the GD correctly stated the contributory requirements under paragraph 44(1)(b) of the CPP. However, the decision made no mention of the possibility of a prorated MQP of July 31, 2010. At paragraph 14, the GD erroneously stated that the Appellant made “sufficient contributions” in 2004, 2005, 2007, 2009 and 2012 and concluded that the appeal had no reasonable chance of success because: ‘‘[T]here is no combination of these years that would qualify in accordance with paragraph 44(2)(a). In other words the Appellant has not made sufficient contributions to meet the requirements of the minimum qualifying period.”

[23] Having reviewed the evidentiary record, I must agree with the Respondent that the GD erred in rendering its decision. First, it incorrectly included the years 2004 and 2012 among those with valid contributions yet still found no MQP. However, the more material error was its disregard for the proration provision of subsection 44(2.1), which was the only means available in law for the Appellant to establish an MQP.

[24] According to the Contributions Summary on page GD8-48, the Appellant only has three years of earnings above the Disability Basic Exemption in his contributory period (2005, 2007 and 2009). In addition, the Appellant has earnings that were below the year’s basic exemption (B/Y) in 2003, 2008 and 2010 and earnings that were below the disability basic exemption (B/D) in 2004 and 2012. Based on these contributions, the Appellant does not meet the 4/6 or 3/6 requirements. He therefore does not have sufficient contributions to qualify under paragraphs 44(1)(b) and 44(2)(a) of the CPP.

[25] However, the Appellant has a potential prorated MQP of July 31, 2010 based on his below-threshold 2010 earnings. The Respondent applied the formula set out in subsection 44(2.1) to those earnings and determined that the Appellant could potentially benefit from an extended eligibility period—a consideration it highlighted in its initial and reconsideration decisions that was apparently overlooked by the GD. The GD should have assessed whether the Appellant became disabled between January 1, 2010 and July 31, 2010 before concluding that he did not meet the contributory requirements under paragraph 44(1)(b) of the CPP.

[26] As an aside, the Contributions Summary in my file does not specify the amount of those below-threshold earnings for 2010, so I was unable to confirm the Respondent’s calculation of July 31 as the prorated MQP date; nevertheless, there is no question that the Appellant had some measure of earnings in 2010 to which the proration provision was not applied at the GD level. It will be helpful if the amount of those 2010 earnings is made available prior to a future GD hearing.

c) Additional Documents

[27] In submitting additional documentary evidence, the Applicant appears to be asking the AD to take it into consideration by substituting a favourable decision for the summary dismissal. This I cannot do, given the constraints of subsection 58(1) DESDA. The AD has no authority to make a decision based on the merits of the case. Once a hearing has concluded, there is a very limited basis upon which any new or additional information can be raised.

[28] However, as I will be returning this matter back to the GD for a new hearing, the Appellant will have an opportunity to resubmit those documents, as well as any additional documents he deems relevant to his claim.

Conclusion

[29] For the reasons set out above, the appeal is allowed and the matter referred to the GD for a full reconsideration of whether the Appellant can be found disabled under the CPP. To avoid any potential for an apprehension of bias, the matter should be assigned to a different member of the GD.