Canada Pension Plan (CPP) disability

Reasons and decision

Introduction

[1] On August 3, 2016, the General Division (GD) of the Social Security Tribunal of Canada (Tribunal) determined that a disability pension under the Canada Pension Plan (CPP) was not payable to the Applicant.

[2] The Applicant filed an incomplete application for leave to appeal (Application) with the Appeal Division (AD) of the Tribunal on October 5, 2016.

[3] The Tribunal asked the Applicant to provide missing information, and the Applicant sent in a typed letter by email on October 17, 2016.

[4] The Application was filed within the time limit for appeal to the AD.

Issue

[5] Whether the appeal has a reasonable chance of success.

The law

[6] Pursuant to subsections 57(1) and (2) of the Department of Employment and Social Development Act (DESD Act), an application for leave to appeal must be made to the AD within 90 days after the day on which the decision appealed from was communicated to the appellant. Further, “the Appeal Division may allow further time within which an application for leave is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.”

[7] According to subsections 56(1) and 58(3) of the DESD Act, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” and “the Appeal Division must either grant or refuse leave to appeal.”

[8] Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[9] Subsection 58(1) of the DESD Act 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.

Submissions

[10] The Applicant’s reasons for appeal can be summarized as follows:

1. The GD decision made an error in law, as she feels that she meets the CPP disability requirements;
2. She has had an issue with one eye since November 2011; she has decreased vision and constant pain;
3. She has tried every treatment and specialist available with no change;
4. The only treatment that provided temporary relief is not covered by any plan and she has not been able to continue because of the cost of this treatment;
5. She is depressed and frustrated;
6. She has been able to find part-time work with an understanding employer; but this job is not enough to “make a normal contribution to the household”; and
7. She is unable to work at any full-time position and cannot do normal everyday things.

Analysis

[11] The Applicant applied for a disability pension in November 2012. The Respondent denied the application initially and upon reconsideration, on the basis that while the Applicant identified limitations resulting from her medical condition and may not be able to do her usual work, the Respondent had concluded that she should still be able to do some type of full-time, part-time or seasonal work.

[12] The Applicant requested reconsideration of this decision, and the Respondent maintained its initial decision.

[13] The Applicant appealed that decision to the GD of the Tribunal.

[14] The GD decided to proceed by way of an in-person hearing. The Applicant was present and testified at the hearing, and her husband was also present, as an observer. The Respondent was not present but had filed written submissions prior to the hearing.

[15] The issue before the GD was whether the Applicant had a severe and prolonged disability on or before December 31, 2014, which was her minimum qualifying period (MQP).

[16] The GD reviewed the Applicant’s evidence (testimonial and documentary) and the submissions of the parties. It rendered a written decision that is understandable, sufficiently detailed and logically coherent. The GD weighed the evidence and gave reasons for its analysis of the evidence and the law. These are the proper roles of the GD.

[17] The Applicant submits that the Application and documents submitted by her establish that she is disabled and that the disability is prolonged. She points to her eye problem and pain since November 2011, and notes that she has followed recommended treatments with only temporary relief, she is unable to work full-time and recently started to work part-time, but is unable to return to full-time work and normal everyday things.

[18] Before the GD, the Applicant advanced similar arguments to those in the Application. The Applicant’s evidence was explained, in detail, in the GD decision on pages 3 to 10. The Applicant’s submissions before the GD were summarized on page 11 and discussed at pages 11 to 13; they included many of the points in support of the Application and noted in paragraphs [10] and [17] above.

[19] The GD stated the correct legislative basis and legal tests. It found that the Applicant had capacity to work at a substantially gainful employment after her MQP, as demonstrated by her work at a grocery store in 2016. The GD noted, in particular:

[54] While the Tribunal is sympathetic to the Appellant's eye issue and the fact that the Appellant cannot read as she did previously nor can she work at a computer as she did previously, the Tribunal cannot find on the evidence filed with the Tribunal that the Appellant was incapable of regularly pursuing any substantially gainful employment as of December 31, 2014. The Tribunal appreciates that the Appellant has faced difficulty in attempting to get a diagnosis and treat the symptoms of her left eye since late 2011. Further, the Tribunal acknowledges that the Appellant is likely unable at this time to resume the type of employment she did up to November 2011 before she developed difficulty with her left eye. However, the evidence does not support a conclusion that the Appellant lacks any capacity to work.

[55] Given all of the evidence including the testimony of the Appellant and the documents filed with the Tribunal, the Tribunal finds that the Appellant did not have a severe disability as of December 31, 2014.

[56] Since the Tribunal found that the disability was not severe, it is not necessary to make a finding on the prolonged criterion.

[20] For the most part, the Application repeats the Applicant’s evidence and submissions before the GD. In particular, the Applicant reiterates that she is unable to return to full-time work and normal everyday things. She argues that, therefore, she must have a severe and prolonged disability.

[21] I note that the words “severe” and “prolonged” have specific meanings at paragraph 42(2) of the CPP and that they have been interpreted numerous times in decisions of the Federal Court of Appeal. It is also the case for the expression “substantially gainful employment”. Their meaning in the CPP disability context is not the same as their dictionary definition.

[22] Once leave to appeal has been granted, the role of the AD is to determine if a reviewable error set out in subsection 58(1) of the DESD Act has been made by the GD and, if so, to provide a remedy for that error. In the absence of such a reviewable error, the law does not permit the AD to intervene. It is not the role of the AD to re-hear the case de novo. It is in this context that the AD must determine, at the leave to appeal stage, whether the appeal has a reasonable chance of success.

[23] I have read and carefully considered the GD’s decision and the record. There is no suggestion that the GD failed to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction in coming to its decision. The Applicant has not identified any errors in law or any erroneous findings of fact which the GD may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision.

[24] In order to have a reasonable chance of success, the Applicant must explain how at least one reviewable error has been made by the GD. The Application is deficient in this regard, and I am satisfied that the appeal has no reasonable chance of success.

Conclusion

[25] The Application is refused.