Canada Pension Plan (CPP) disability

Reasons and decision

Decision

[1] The appeal is dismissed.

Introduction

[2] This is an appeal of a decision of the General Division of the Social Security Tribunal of Canada (Tribunal) that summarily dismissed the Appellant’s appeal for the Canada Pension Plan (CPP) disability benefit because it determined that he could not cancel his retirement pension in favour of a disability pension if the disability onset date was prior to the commencement of his retirement pension. The General Division dismissed the appeal because it was not satisfied that it had a reasonable chance of success.

[3] No leave to 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 General Division.

[4] Having determined that no further hearing is required, this appeal is proceeding pursuant to paragraph 37(a) of the Social Security Tribunal Regulations (SST Regulations).

Overview

[5] The Appellant applied for, and began receiving, a CPP retirement pension as of June 2014. He applied for the CPP disability benefit on June 28, 2016. In his application, he indicated that he suffered from neck and back pain, which had led him to leave his job as a line operator in August 2014.

[6] The Respondent refused the application initially and on reconsideration because it was made more than 15 months after the Appellant began receiving his CPP retirement pension. On September 21, 2016, the Appellant appealed these refusals to the General Division. In a decision dated November 25, 2016, the General Division summarily dismissed the Appellant’s appeal on the basis that the law does not allow a retirement pension to be cancelled in favour of a disability pension more than 15 months after the commencement of the retirement pension.

[7] On December 16, 2016, the Appellant filed an appeal of the summary dismissal decision with the Tribunal’s Appeal Division, alleging errors on the part of the General Division. I have decided that an oral hearing is unnecessary and that the appeal will proceed on the basis of the documentary record for the following reasons:

1. There are no gaps in the file or no need for clarification;
2. This form of hearing respects the requirement under the SST Regulations to proceed as informally and as quickly as circumstances, fairness and natural justice permit.

The law

Department of Employment and Social Development Act

[8] Subsection 53(1) of the DESDA states that the General Division must summarily dismiss an appeal if satisfied that it has no reasonable chance of success. Under subsection 56(2), no leave to appeal is required to appeal a summary dismissal to the Appeal Division.

[9] Subsection 54(1) of the DESDA makes it clear that the General Division can take only an action that that the Minister should have otherwise taken. The General Division may dismiss the appeal or confirm, rescind or vary a decision of the Minister or the Commission in whole or in part or give the decision that the Minister or the Commission should have given.

[10] Section 22 of the SST Regulations states that before summarily dismissing an appeal, the General Division must give the Appellant notice in writing and allow the Appellant a reasonable period of time to make submissions.

[11] According to subsection 58(1) of the DESDA, 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 made in a perverse or capricious manner or without regard for the material before it.

Canada Pension Plan

[12] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an applicant must:

1. (a) be under 65 years of age;
2. (b) not be in receipt of the CPP retirement pension;
3. (c) be disabled; and
4. (d) have made valid contributions to the CPP for not less than the minimum qualifying period (MQP).

[13] The requirement that an applicant not be in receipt of the CPP retirement pension is also set out in subsection 70(3) of the CPP, which states that once a person starts to receive a CPP retirement pension, that person cannot apply or re-apply, at any time, for a disability pension. There is an exception to this provision, and it is found in section 66.1 of the CPP.

[14] Section 66.1 of the CPP and section 46.2 of the CPP Regulations allow a beneficiary to cancel a benefit after it has started if the request to cancel the benefit is made, in writing, within six months after payment of the benefit has started.

[15] If a person does not cancel a benefit within six months after payment of the benefit has started, the only way a retirement pension can be cancelled in favour of a disability benefit is if the person is deemed to be disabled before the month the retirement pension first became payable (subsection 66.1(1.1) of the CPP).

[16] Subsection 66.1(1.1) of the CPP must be read with paragraph 42(2)(b) of the CPP, which states that the earliest a person can be deemed to be disabled is 15 months before the date the Respondent receives the disability application.

[17] The effect of these provisions is that the CPP does not allow the cancellation of a retirement pension in favour of the disability pension where the disability application is made 15 months or more after payment of the retirement pension has started.

[18] According to section 69 of the CPP, payments start four months after the deemed date of disability.

Issues

[19] The issues before me are as follows:

1. How much deference should the Appeal Division extend to decisions of the General Division?
2. Did the General Division err in summarily dismissing the Appellant’s claim for the CPP disability benefit because he was already in receipt of the CPP retirement pension?

Submissions

[20] In his notice of appeal dated December 16, 2016, the Appellant made the following submissions:

1. He had previously applied for CPP disability benefits on July 13, 2015, within the 15-month restriction period.
2. This first application was refused because a report from his specialist was delayed and thus unavailable for consideration.
3. He is unable to work and has no other income.

[21] The Respondent made no submissions.

Analysis

Standard degree of deference owed to the General Division

[22] Until recently, it was accepted that appeals to the Appeal Division 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 a 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 the factual evidence.

[23] The Federal Court of Appeal decision in Canada v. Huruglica^{Footnote 2} 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.

[24] 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.”

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

[T]he 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].

[26] 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, which suggests that the Appeal Division should afford no deference to the General Division’s interpretations.

[27] 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” and “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 Appeal Division should intervene when the General Division bases its decision on an error that is clearly egregious or at odds with the record.

Summary dismissal

[28] The General Division dismissed the Appellant’s appeal because his application for the CPP disability benefit was received in June 2016. The General Division determined that, under paragraph 42(2)(b), the earliest the Appellant could be deemed to be disabled was March 2015— 15 months before the application was submitted. As the Appellant’s retirement pension started in June 2014, the General Division found that it was not possible for him to be deemed to be disabled before receiving the retirement pension. As a result, the General Division concluded there was no way under the law to allow the Appellant to cancel the retirement pension in favour of the disability pension.

[29] Having carefully examined the decision, I can find no indication that the General Division breached any principle of natural justice or committed an error in fact or law. The General Division assessed the record and concluded that the Appellant, as a recipient of the CPP retirement pension, was effectively barred from receiving CPP disability benefits. The General Division saw no arguable case on any ground raised by the Appellant, and I see no reason to interfere with its reasoning. My authority permits me to determine only whether any of his reasons for appealing fall within the specified grounds and whether any of them have a reasonable chance of success. While the General Division’s analysis did not arrive at the conclusion the Appellant would have preferred, my role is to determine whether the decision is defensible on the facts and the law, rather than to reassess the evidence.

[30] The Appellant suggested the General Division erred in disregarding his earlier CPP disability application, which was submitted in July 2015. My review of the file indicates that the Respondent refused this application in the first instance on October 27, 2015, and I saw no indication that the Appellant requested reconsideration. As such, this application was not, and could not, be the subject of an appeal to the General Division under section 82 of the CPP, which requires the Respondent to first issue a reconsideration decision. I agree that it is somewhat curious that the General Division did not address the prior application, especially since the Appellant raised it as an issue in his September 21, 2016 notice of appeal. However, its existence would have done nothing to increase the potential retroactivity of any CPP disability benefits to which the Appellant might have been entitled, and it would therefore have had no bearing on the outcome of the General Division’s decision. Furthermore, even if the Appellant’s first application were recognized in the current proceeding, it still came more than six months after the last date on which his retirement pension could have been cancelled in favour of disability benefits.

[31] In his notice of appeal to the Appeal Division, the Appellant stated that he can no longer work, but the major question in this case is not whether he has a disability that is “severe and prolonged,” but whether he is statute-barred from receiving the CPP disability benefit because he is already receiving a CPP retirement pension. It is clear that the Appellant disagrees with the CPP provisions that limit the ability of a recipient of an early retirement pension to cancel it in favour of a disability pension. However, the Tribunal—both the General Division and the Appeal Division—is bound to apply the law as it is written. Subsection 66.1(1.1) of the CPP says that the cancellation of a retirement pension for disability benefits is possible only where the applicant can be deemed disabled before the retirement pension becomes payable.

Conclusion

[32] As noted, even if the Appellant could prove that he was disabled, the earliest month, under paragraph 42(2)(b) of the CPP, in which he could have qualified for disability benefits was March 2015, which was well after his CPP retirement pension began and after the six-month deadline to cancel his retirement pension in favour of the disability benefit. The Appellant has not disputed the General Division’s interpretation of these provisions of the CPP, nor has he introduced any evidence to show that that he attempted to cancel his early retirement pension within the requisite six months.

[33] For the reasons set out above, the appeal is dismissed.