Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] The Claimant worked seasonally on a charter vessel. He applied for and began to receive a Canada Pension Plan (CPP) retirement pension in March 2015. In February 2016, he had surgery for bowel cancer and stopped working. He applied for a CPP disability pension in June 2016. The Minister of Employment and Social Development refused the application on the basis that the Claimant could not be found to be disabled before he began to receive the retirement pension because he applied for the disability pension more than fifteen months after he began to receive the retirement pension.

[3] The Claimant appealed this decision to this Tribunal and claimed that the application for disability pension was made late because he was incapable of forming or expressing an intention to apply for the pension before he did so. The Tribunal’s General Division dismissed the appeal because it did not find that he was incapable of forming or expressing the intention to apply continuously prior to when he did. Leave to appeal from the General Division decision is refused because there is no reasonable chance of success on appeal.

Issues

[4] Does the appeal have a reasonable chance of success because:

1. the General Division failed to observe a principle of natural justice by making a finding against the Claimant?
2. the General Division made an error in law regarding the Claimant’s incapacity? or
3. the General Division based its decision on an erroneous finding of fact regarding when the Claimant’s incapacity ended?

Analysis

[5] The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operation. It sets out only three grounds of appeal that the Appeal Division can consider. They are that the General Division failed to observe a principle of natural justice or made a jurisdictional error, made an error in 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.^{Footnote 1} In addition, leave to appeal is to be refused if the appeal has no reasonable chance of success.^{Footnote 2} So, to be granted leave to appeal, the Claimant must present a ground of appeal that falls under the DESD Act and upon which the appeal has a reasonable chance of success.

Issue 1: Evidence not taken into account

[6] The Claimant argues that the General Division erred because it did not take some evidence into account and that it made findings adverse to the Claimant because he could not remember details about when his application should have been filed. I have reviewed the General Division decision and the written record. The General Division did not overlook or misconstrue any important evidence. The decision summarizes the written and oral evidence that was before it. It is not necessary that the decision recite every piece of evidence that is before the General Division.^{Footnote 3} Therefore, the failure to specifically refer to a specific piece of evidence is not a ground of appeal upon which leave to appeal can be granted.

[7] The General Division did not make an adverse finding against the Claimant because of his poor memory either. Rather, the decision states that the Claimant’s testimony was not helpful regarding when he was incapacitated,^{Footnote 4} that R. W.’s evidence was more helpful but still somewhat vague,^{Footnote 5} and that the doctor’s evidence was less helpful because it did not identify the beginning of the Claimant’s period of incapacity and the Claimant disagreed with this evidence about when his incapacity ended.^{Footnote 6} The General Division weighed all of the evidence to make its decision and explained why it decided what the period of incapacity was, based on all of the evidence.^{Footnote 7} The Claimant’s disagreement with the conclusion the General Division reached does not point to any error by the General Division.

[8] The principles of natural justice are concerned with ensuring that all parties to a claim have the opportunity to present their case to the Tribunal, to know and to answer the case against them, and to have a decision made by an impartial decision-maker based on the law and the facts. Nothing before me suggests that any of these principles were not observed in this case. The appeal does not have a reasonable chance of success based on these arguments.

Issue 2: Period of incapacity

[9] The Claimant also argues that the General Division erred by finding that he did not establish a period of incapacity in spite of the evidence that he had. The General Division decision considered the evidence regarding the Claimant’s claimed incapacity, including the evidence that his memory regarding his time in hospital after bowel surgery was unreliable, that he made his own decisions during this time, that he was uncooperative about eating, that R. W. spoke to him about the CPP application, and that his doctor considered him competent to make medical decisions. Based on all of the evidence, the General Division concluded that the Claimant was incapable of forming or expressing an intention to make a disability pension application from the first week of March 2016^{Footnote 8} until the end of March 2016.^{Footnote 9}

[10] Therefore, the appeal does not have a chance of success on the basis of this ground of appeal.

Issue 3: Incapacity at the end of March 2016

[11] Finally, the Claimant argues that the General Division based its decision on an erroneous finding of fact that he was no longer incapacitated at the end of March 2016. However, as set out above, the General Division considered and weighed all of the evidence that was before it. It gave reasons for its conclusion. The Claimant’s disagreement with this conclusion is not a ground of appeal upon which leave to appeal can be granted.

Conclusion

[12] The Claimant has not presented a ground of appeal under the DESD Act upon which the appeal has a reasonable chance of success. Leave to appeal is therefore refused.