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Reasons and decision
Introduction
[1] The Respondent immigrated to Canada from Macedonia and worked in physically demanding jobs. She was injured at work in 2009, but continued to work after this. She applied for a Canada Pension Plan disability pension three times. The last application was made in 2015 and is the application at issue before me. In this application, the Respondent claimed that she was disabled by fibromyalgia; depression; a workplace injury (neck, shoulders, wrists, elbows, hands, and back); dizziness and headaches; as well as hypothyroidism and carpal tunnel syndrome. The Applicant refused this application and the Respondent appealed this decision to the Social Security Tribunal of Canada (Tribunal). On September 13, 2017, the Tribunal’s General Division allowed the appeal and found that the Respondent was disabled. The Applicant applied for leave to appeal this decision to the Tribunal’s Appeal Division.
Analysis
[2] The Department of Employment and Social Development Act (DESD Act) governs the operation of this Tribunal. According to subsections 56(1) and 58(3) of the DESD Act, an appeal to the Appeal Division may be brought only if leave to appeal is granted, and the Appeal Division must either grant or refuse leave to appeal.
[3] The only grounds of appeal available under the DESD Act are set out in subsection 58(1), namely, that the General Division failed to observe a principle of natural justice or made a jurisdictional error, made an error of law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. Subsection 58(2) states that leave to appeal is to be refused if the appeal has no reasonable chance of success.
[4] The Applicant presents one ground of appeal: that the General Division erred in law when it determined that the Respondent had a severe and prolonged disability in December 2013, which is outside the minimum qualifying period (MQP) of December 31, 2009, and the possible prorated MQP period of January 1, 2014 to of January 31, 2014. I must decide if this is a ground of appeal under subsection 58(1) of the DESD Act that may have a reasonable chance of success on appeal.
[5] The Canada Pension Plan (CPP) provides that a disability claimant must make contributions greater than a set amount to the Plan for a specific period of time in order to be eligible for the disability pension (see paragraph 44(2)(a) of the CPP). In this case, it is not disputed that the Respondent worked and made sufficient contributions to the CPP such that she was eligible for a disability pension if she became disabled by December 31, 2009. The Applicant does not dispute the General Division’s conclusion that the Respondent was not disabled by this date.
[6] In addition, section 19 of the CPP provides that when a claimant’s earnings and contributions for a given year are below the year’s basic exemption, their earnings and contributions can be prorated if they became disabled during the period of proration. There is no dispute that proration should be considered in this case, as the Respondent had some earnings in 2014, but they were lower than the year’s basic exemption.
[7] The General Division found that the period of proration (prorated MQP) in this case was from January 1, 2014, to April 30, 2014. This is consistent with a calculation provided by the Applicant at GD2-37. In the application for leave to appeal, however, the Applicant submits that the correct period of proration is from January 1, 2014, to January 31, 2014. The Applicant did not provide any calculation or explanation to support this. It argues that the General Division erred in its calculation of the prorated MQP.
[8] The Applicant also argues that the General Division erred as it concluded that the Respondent was disabled in December 2013, which was not within the period of proration. In paragraph 7 of its decision, the General Division states that if the Respondent was not found disabled by December 31, 2009 (the MQP), it had to determine whether she became disabled by the end of April 2014 (the prorated MQP). Paragraphs 55 and 56 of the decision refer to the Respondent suffering from a severe disability in January 2014, and paragraph 60 refers to her being dismissed from her last job in January 2014 because she could not meet sales targets. After considering all of the evidence, the General Division concludes that the Respondent established that she was incapable regularly of pursuing any substantially gainful occupation since December 2013.
[9] I am satisfied that the Applicant has presented a ground of appeal under subsection 58(1) of the DESD Act that may have a reasonable chance of success. The decision may have incorrectly stated the prorated MQP. It ended on January 31, 2014, or April 30, 2014. Further information is needed to confirm the correct date. In addition, the General Division concluded that the Respondent established that she was disabled since December 2013, which date is not prior to December 31, 2009, or within the prorated MQP in 2014 (no matter which prorated period in 2014 is correct).
Conclusion
[10] The application for leave to appeal is therefore granted.
[11] The parties are invited to provide a detailed calculation that sets out the correct prorated MQP in 2014, with their submissions on all relevant legal issues.
[12] This decision to grant leave to appeal does not presume the result of the appeal on the merits of the case.