Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] The Appellant, T. S., is appealing a decision of the General Division of the Social Security Tribunal of Canada to summarily dismiss his claim for disability benefits under the Canada Pension Plan (CPP).

[3] Mr. T. S. applied for, and began receiving, an early CPP retirement pension as of November 2013, the month after he turned 60. He applied for the CPP disability benefit in April 2016. In his application, he disclosed that he was a warehouse worker and self-employed farmer, jobs that he said he was forced to give up after injuring his shoulder in a January 2014 slip and fall accident. He later had a heart attack.

[4] The Respondent, the Minister of Employment and Social Development (Minister), refused the application initially and on reconsideration because it was made 15 or more months after Mr. T. S. began receiving his CPP retirement pension. In January 2017, Mr. T. S. appealed these refusals to the General Division. In a letter dated July 10, 2017, the General Division advised Mr. T. S. of its intention to summarily dismiss his appeal. On August 14, 2017, the General Division summarily dismissed the appeal on the grounds that 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.

[5] On September 11, 2017, Mr. T. S. filed an incomplete appeal of the summary dismissal decision with the Tribunal’s Appeal Division, alleging that the General Division failed to consider the flaws in Canada’s health care system, which delayed his specialist’s prognosis of permanent disability until March 2016. Mr. T. S. claimed that, had his specialist fulfilled his promise to schedule a follow-up appointment within six weeks (rather than the actual elapsed time of five months), he would have known he was disabled and therefore filed for the change in benefits sooner.

[6] Following a request for additional information, Mr. T. S. completed his appeal on October 27, 2017. 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 Social Security Tribunal Regulations to proceed as informally and as quickly as circumstances, fairness, and natural justice permit.

Issues

[7] The issues before me are as follows:

Analysis

Issue 1: How much deference should the Appeal Division show the General Division?

[8] Under the Department of Employment and Social Development Act (DESDA), the only grounds of appeal to the Appeal Division are that the General Division erred in law, failed to observe a principle of natural justice, or 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.^{Footnote 1} The Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration, or vary the General Division’s decision in whole or in part.^{Footnote 2}

[9] 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 3} Where errors of law or failures to observe principles of natural justice were alleged, the applicable standard was held to be correctness, reflecting a lower threshold of deference deemed to be owed to a first-level administrative tribunal. 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 factual evidence.

[10] The Federal Court of Appeal decision Canada v. Huruglica^{Footnote 4} 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. This premise led the Court to determine that the appropriate test flows entirely from an administrative tribunal’s governing legislation: “The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent.…”

[11] 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 tribunal’s home statute. 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. The word “unreasonable” is not 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.

Issue 2: Did the General Division apply the correct test for summary dismissal?

[12] I am satisfied that the General Division used the appropriate mechanism to dispose of Mr. T. S.’s appeal. In paragraph 3 of its decision, the General Division invoked subsection 53(1) of the DESDA, correctly stating the provision that permits it to summarily dismiss an appeal that has no reasonable chance of success. However, I acknowledge that it is insufficient to simply cite legislation without properly applying it to the facts.

[13] The decision to summarily dismissal an appeal relies on a threshold test. It is not appropriate to consider the case on the merits in the parties’ absence and then find that the appeal cannot succeed. In Fancy v. Canada,^{Footnote 5} the Federal Court of Appeal determined that a reasonable chance of success is akin to an arguable case at law. The Court also considered the question of summary dismissal in the context of its own legislative framework and determined that the threshold for summary dismissal is high.^{Footnote 6} It must be determined whether it is plain and obvious on the record that the appeal is bound to fail. The question is not whether the appeal must be dismissed after considering the facts, the case law, and the parties’ arguments. Rather, the question is whether the appeal is destined to fail regardless of the evidence or arguments that might be submitted at a hearing.

[14] Here, Mr. T. S. implicitly acknowledged that he was able to work until his accident in January 2014. This date was well before the earliest deemed date of disability (January 2015, or 15 months prior to his CPP disability application date) permitted under the law. In making this finding, the General Division correctly applied a high threshold, noting that it was “not possible” for Mr. T. S. to be deemed to have become disabled before the retirement pension started to be paid in November 2013. Another indication that the General Division applied the appropriate standard is its conclusion that the law “simply does not allow” Mr. T. S. to cancel the retirement pension in favour of a disability pension.

[15] In the absence of any recourse to equity, the General Division was within its jurisdiction to summarily dismiss the appeal. In my view, it was plain and obvious on the record that Mr. T. S.’s arguments were bound to fail.

Issue 3: Did the General Division err in rendering its decision?

[16] 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 Mr. T. S., 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 Mr. T. S. 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 have a reasonable chance of success. While the General Division’s analysis did not arrive at Mr. T. S.’s preferred conclusion, my role is to determine whether the decision is defensible on the facts and the law, rather than to reassess the evidence on its merits.

[17] As the law is drafted, when Mr. T. S. might have actually become disabled is irrelevant. As noted, under paragraph 42(2)(b) of the CPP, the earliest he could be deemed to be disabled was January 2015—15 months before his CPP disability application was submitted. As Mr. T. S.’s retirement pension started in November 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.

[18] Mr. T. S. was no doubt unaware of the implications of taking an early CPP retirement pension and could not have foreseen his medical problems, 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, Mr. T. S. stated that he could 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.

[19] Mr. T. S. suggests that he should not be penalized for the inefficiencies of the health system, which delayed his prognosis. However, a chronology of events indicates that by the time he sustained his injuries in November 2014, it was already too late to cancel his retirement pension in favour of a disability pension; more than six months had already passed since he had received his first payment for the former.

[20] If Mr. T. S. is asking me to exercise fairness and reverse the General Division’s decision, I must emphasize that I lack the discretionary authority to do so and that I 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 7} among other cases, which have held that an administrative tribunal is not a court but a statutory decision-maker and is therefore not empowered to provide any form of equitable relief.

Conclusion

[21] As noted, even if Mr. T. S. 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 January 2015, which was after his CPP retirement pension had begun. Mr. T. S. has not introduced any evidence to show 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.

[22] The appeal is dismissed.