Canada Pension Plan (CPP) disability

Reasons and decision

[1] The Appeal Division of the Social Security Tribunal of Canada, (the Tribunal), dismisses the appeal.

Introduction

[2] The facts of this appeal are straightforward. The Appellant applied for and was approved for a Canada Pension Plan, (CPP), retirement pension. The payment of the pension began in October 2013. In February 2015 she applied for a CPP disability pension. The Respondent received her application on February 13, 2015. It denied the application because it was made more than fifteen months after the Appellant began to receive her retirement pension. (GD2-9)

[3] The Appellant asked the Respondent to reconsider its decision. (GD2-13/14) However, the Respondent maintained the denial. (GD2-16/17) The Appellant appealed from the reconsideration decision to the Tribunal’s General Division. After giving the parties an opportunity to make submissions as required by section 22 of the Social Security Tribunal Regulations SOR/2013-60, the General Division summarily dismissed the appeal. The General Division decision is dated March 31, 2016. It, too, found that the Appellant was out of time to apply to cancel her retirement pension in favour of a disability pension. The Appellant now appeals from the General Division decision.

Grounds of the appeal

[4] The Appellant submitted that she is disabled by osteoarthritis. She argues that her condition met the CPP definition of “severe and prolonged disability”; and that the denial increased her financial difficulties and hardships. The Appellant explained that she did not make her application earlier because her condition was only confirmed in January 2015. She stated that her symptoms manifested in September 2013, but the difficulty in obtaining appointments with specialists meant that she was unable to obtain the necessary evidence in a timely manner.

Issue

[5] The only issue before the Appeal Division is whether the General Division erred by summarily dismissing the Appellant’s appeal?

The governing statutory provisions

[6] Subsection 53(1) of the Department of Employment and Social Development, (DESD), Act governs “summary dismissal” of appeals. The subsection provides that “the General Division must summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success.

[7] The grounds of appeal are set out in subsection 58(1) of the DESD Act, namely:-

1. The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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.

Payment of a disability pension

[8] Section 44 of the CPP governs payment of a Disability pension. A disability pension is payable to persons who have made the required contributions to the CPP; who are disabled as defined by section 42 of the CPP; and who are not receiving a CPP retirement pension.

Benefits payable

1. 44 (1) Subject to this Part,
2. (b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, who is disabled and who
   1. (i) has made contributions for not less than the minimum qualifying period,
   2. (ii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if an application for a disability pension had been received before the contributor’s application for a disability pension was actually received, or
   3. (iii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if a division of unadjusted pensionable earnings that was made under section 55 or 55.1 had not been made.

[9] The CPP also provides for cancellation of a retirement pension in favour of a disability benefit, again on certain conditions being met. Subsections 66.1 and 66.1 (1.1) govern the application. These statutory provisions provide,

1. 66.1. Request to cancel benefit – (1) A beneficiary may, in prescribed manner and within the prescribed time interval after payment of a benefit has commenced request cancellation of that benefit.
2. (1.1) Exception – subsection (1) does not apply to the cancellation of a retirement pension in favour of a disability benefit where an Appellant for a disability benefit under this Act or under a provincial pension plan is in receipt of a retirement pension and the Appellant is deemed to have become disabled for the purposes of entitlement to the disability benefit in or after the month for which the retirement pension first became payable.

[10] The appeal is also governed by 46.2 (2) of the CPP Regulations (the Regulations), which allows an exception to the six month period for bringing the application to cancel a benefit.

1. 46.2. (1) A beneficiary may submit to the Minister, within the interval between the date of commencement of payment of the benefit and the expiration of six months after that date, a request in writing that the benefit be cancelled.
2. (2) Despite subsection (1), if there is a determination that an applicant for a disability pension under the act or a comparable benefit under a provincial pension plan is deemed to have become disabled or the purpose of entitlement to the disability pension or benefit and is in receipt of a retirement pension, and the time when the applicant is deemed to be disabled is before the date4 on which the retirement pension became payable, the applicant may submit to the Minister, within the period beginning on the day of commencement of payment of the retirement pension and ending 60 days after the receipt by the applicant of the notice of the determination , a request in writing that the retirement pension be cancelled.

[11] Section 42(2)(b) of the CPP operates to limit how far back from the time of their application a person could be deemed to have become disabled. Under the section maximum retroactivity is capped at fifteen months before the date of the application for a CPP disability pension. In the Appellant’s case as she applied for the disability pension in February 2015, the earliest she could be deemed to have become disabled was November 2013. In November 2013, she had already been receiving her retirement pension for a month.

Submissions

[12] In her submissions, the Appellant repeated her statements in her application for leave to appeal, elaborating on her medical conditions and financial submitted hardship.

[13] Counsel for the Respondent set out the Respondent’s position. She stated that the General Division decision was correct in law and that it had provided the proper outcome in keeping with the applicable legislation. Counsel for the Respondent also submitted that in coming to its decision, the General Division did not err in its application of the law to the facts, which are not in dispute. Thus the appeal before the General Division was properly summarily dismissed as it had no reasonable chance of success. . Counsel for the Respondent indicated that she was relying on the submissions of December 14, 2015 in which the General Division has been asked to dismiss the appeal. (GD4-2)

Analysis

[14] A person who is in receipt of a CPP retirement pension may cancel that pension in favour of receiving a disability benefit provided that certain statutory conditions are met, namely:-

1. The individual must be deemed to have become disabled before the month his or her retirement pension became payable: CPP 66.1
2. The application to cancel the retirement pension must have been made within fifteen months of its commencement: (CPP s. 42(2)(b); Regulations 46.2.(2))

The Appellant can succeed only if she can establish that the General Division erred in its application of the law to the facts of her case.

Did the General Division err in its application of the law to the facts?

[15] The facts of the Appellant’s case are straightforward and have been set out above. They are not in dispute. The General Division found that when CPP subsection 66.1(1.1) together with subsection 42(2)(b) are applied to the facts of the Appellant’s case they prevent the cancellation of her retirement pension in favour of a disability pension. On these findings, it concluded that her appeal did not have a reasonable chance of success and dismissed the appeal summarily.

[16] The Appeal Division finds that the General Division cited the applicable legislative provisions and that it applied them correctly to the facts of the Appellant’s case. Furthermore, as submitted by Counsel for the Respondent, the submissions made in present appeal does not raise any grounds of appeal under subsection 58(1) of the DESD Act that would permit the Appeal Division to allow the appeal. Financial difficulties speak to humanitarian and compassionate considerations, which form no part of the Tribunal’s jurisdiction at any level. The Appeal Division cannot factor in the Appellant’s financial difficulties when it determines whether or not allow the appeal.

[17] Subsection 53(1) of the DESD Act mandates the General Division to summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success. In the context of summary dismissal the Appeal Division has taken the position that where the facts of the case are not in dispute; the law is clear; and where on applying the law to the facts of the case there is only one outcome that is not in an appellant’s favour, then this would be a case where it would be appropriate to apply the summary dismissal provision in subsection 53(1) of the DESD Act. The Appeal Division finds that this is such a case.

[18] In light of the above discussion, the Tribunal finds that the General Division did not commit a reviewable error when it summarily dismissed the Appellant’s appeal.

Conclusion

[19] The appeal is dismissed.