On this page
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) dated September 6, 2016, which summarily dismissed the Appellant’s appeal for the Canada Pension Plan (CPP) disability benefit because it had determined that he could not cancel his retirement pension in favour of a disability pension when 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] As I have 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, an early CPP retirement pension as of April 2013, the month after he turned 60. He applied for the CPP disability benefit on August 14, 2014. In his application, he indicated that for more than 30 years he worked as a corrections officer, a job he was forced to give up in August 2013 after small vessel arteriosclerosis in his right foot left him unable to stand or walk for extended periods.
[6] The Respondent refused the application initially and on reconsideration because it was made 15 or more months after the Appellant began receiving his CPP retirement pension. On May 19, 2015, the Appellant appealed these refusals to the General Division. The General Division advised the Appellant, by way of a letter dated August 5, 2016, of its intention to summarily dismiss his appeal. After reviewing the Appellant’s submissions, the General Division summarily dismissed the appeal on September 6, 2016, because the law does not allow a retirement pension to be cancelled in favour of a disability pension more than six months after the commencement of the retirement pension.
[7] On December 19, 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:
- There are no gaps in the file and there is no need for clarification.
- 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 it is 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 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 it may 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:
- (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (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:
- (a) be under 65 years of age;
- (b) not be in receipt of the CPP retirement pension;
- (c) be disabled; and
- (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 reapply, 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] According to subsection 66.1(1.1) of the CPP, 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 for which the retirement pension first became payable.
[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 on which 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, disability payments start four months after the deemed date of disability.
Issues
[19] The issues before me are as follows:
- How much deference should the Appeal Division extend to General Division decisions?
- 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, the Appellant wrote that he remains disabled from work and that, despite applying for an early CPP retirement pension, he should be considered for CPP disability benefits. He cannot be held responsible for mailing his application to the wrong address. He has worked and contributed to the plan all his life, and he feels he has not been dealt with fairly.
[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. HuruglicaFootnote 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 August 2014, which was more than 15 months after his retirement pension commenced.
[29] Having reviewed its decision, I am satisfied that the General Division did not breach any principle of natural justice or commit 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 that the Appellant had raised, 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 has 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] As the law is drafted, when the Appellant might have actually become disabled is irrelevant. Under paragraph 42(2)(b), the earliest the Appellant could be deemed to be disabled was May 2013—15 months before his CPP disability application was submitted. As the Appellant’s retirement pension started in April 2013, it was not possible for him to be deemed disabled before he started receiving the retirement pension, nor was it possible for him to cancel the retirement pension once six months had passed. The file contained a declaration of an intention to cancel the retirement pension, but it was dated January 28, 2014, more than nine months after the commencement of the retirement pension.
[31] The Appellant was no doubt unaware of the implications of taking an early CPP retirement pension, but I see no recourse available to him under the law. The General Division was bound to follow the letter of the CPP, and so am I: Subsection 66.1(1.1) indicates that the cancellation of a retirement pension in favour of disability benefits is possible only where an applicant can be deemed disabled before the retirement pension becomes payable. In his notice of appeal, the Appellant stated that he can no longer work, but the issue here 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.
[32] The Appellant suggests that he should not be penalized for submitting his application for disability benefits to the wrong address. I saw no evidence in the file that this in fact happened, but even if it did, there would be no effect on the outcome. As the General Division has correctly noted, subsection 43(1) of the CPP Regulations requires an application for a benefit to be made in writing at an office of the Department of Human Resources and Skills Development, as the Respondent was formerly known.
[33] If the Appellant is asking me to exercise fairness and reverse the General Division’s decision, I must clarify that I lack the discretionary authority to do so and can exercise such jurisdiction only as granted by the Appeal Division’s enabling statute. Support for this position may be found in Pincombe v. Canada,Footnote 3 among other cases, which have held that an administrative tribunal is not a court but a statutory decision-maker and therefore not empowered to provide any form of equitable relief.
Conclusion
[34] 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 May 2013, which was after his CPP retirement pension began. The Appellant has not introduced any evidence to show that that he cancelled his early retirement pension within the requisite six-month time limitation, nor has he demonstrated how the General Division incorrectly applied the law.
[35] For the reasons set out above, the appeal is dismissed.