Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The application for leave to appeal is refused.

Overview

[2] D. W. (Claimant) has a Grade 5 education. He has dementia and many other health problems, and he does not have a lawyer.

[3] The Claimant started getting a Canada Pension Plan retirement pension in July 2016, while working as a truck driver. He stopped working in November 2016 because he had serious health problems. The Claimant was 60 years old when he applied for a Canada Pension Plan disability pension in May 2017.

[4] The Minister denied the Claimant’s application for a disability pension. When the Claimant asked the Minister to reconsider, the Minister did not change its decision to deny the disability pension. The Claimant appealed to this Tribunal, and the General Division denied his appeal on October 15, 2018. The General Division found that the Claimant was not able to show that he had a severe disability within the meaning of the Canada Pension Plan (CPP) on or before June 30, 2016. The General Division noted that the Claimant kept working until November 2016 and that the work he was doing was substantially gainful within the meaning of the CPP.

[5] The Appeal Division must decide whether there is an arguable case that the General Division made an error so that leave (permission) to appeal can be granted.

[6] There is no arguable case that the General Division made an error, and, therefore, the application for leave to appeal is refused.

Issue

[7] Is there an arguable case that the General Division made an error of fact by finding that the Claimant’s minimum qualifying period (MQP) ended on June 30, 2016?

Analysis

[8] The Minister makes the first decision about whether a claimant gets a Canada Pension Plan disability pension. If a claimant asks, the Minister can reconsider its decision. If a claimant appeals the Minister’s decision, that appeal goes to the Social Security Tribunal, which is totally separate from the Minister’s office and makes its own new decision about whether a claimant will get a disability pension.^{Footnote 1} Since the Tribunal is a different decision maker from the Minister, sometimes the Tribunal’s decision about benefits and its reasons for granting or denying a benefit can be different from those of the Minister’s office. The General Division takes a “fresh look” at the case.

[9] The Appeal Division allows a claimant to appeal General Division decisions only where there is an arguable case that the General Division has made an error. The only errors that allow the Appeal Division to grant leave to appeal are those that are listed in the Department of Employment and Social Development Act (DESDA). These possible errors are called the “grounds of appeal.” One of the grounds of appeal listed in the DESDA happens when the General Division bases its decision on an erroneous (wrong) finding of fact that is made in a perverse or capricious way or without regard for the evidence in the case.^{Footnote 2}

[10] On leave to appeal, a claimant must show that the appeal has a reasonable chance of success.^{Footnote 3} A claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 4} That is a low test to meet.

Is there an arguable case that the General Division made an error of fact by stating that the Claimant’s MQP ended on June 30, 2016?

[11] Even though there was a mistake in the General Division’s decision, the General Division did not make an error of fact as described in the DESDA. The General Division made a mistake by calling June 30, 2016, the end of the Claimant’s MQP (his MQP really ends on December 31, 2019). But this mistake is not an error of fact because the General Division did not base its decision on this error. Even though the Claimant’s MQP really ends on December 31, 2019, he had to show he had a severe and prolonged disability on or before June 30, 2016, because that was the month before he started receiving his retirement pension. The fact that the General Division labelled  June 30, 2016 as the end of the MQP, is a mistake, but it was still the correct date that the General Division had to look at to decide whether the Claimant would get a disability pension.

[12] To get a disability pension under the CPP, claimants have to have a severe and prolonged disability on or before the end of their MQPs.^{Footnote 5} But claimants cannot get Canada Pension Plan disability pensions and Canada Pension Plan retirement pensions at the same time. A claimant can ask to withdraw the retirement pension and get the disability pension instead if the Minister or the General Division finds that a claimant had a severe and prolonged disability before the month the retirement pension became payable.^{Footnote 6}

[13] The Claimant argues that the General Division must have made an error of fact because the Minister’s documents said that the end of his MQP was December 31, 2019,^{Footnote 7} and yet the General Division’s decision stated that his MQP ended on June 30, 2016.^{Footnote 8} The Claimant assumes that the General Division based its decision on an error of fact because it should have been deciding whether he had a severe and prolonged disability by December 31, 2019. The Claimant stated that the difference in the analysis from the Minister’s documents and the General Division’s decision makes him believe that the decisions change to suit the Tribunal’s “needs as to not grant CPP disability.”^{Footnote 9}

[14] Based on the years the Claimant worked and paid into the Canada Pension Plan, his MQP ends on December 31, 2019,^{Footnote 10} but he applied for and started getting a retirement pension in July 2016.^{Footnote 11} So, the Claimant can withdraw the retirement pension and have the disability pension instead but only if he can show that he had a severe and prolonged disability on or before June 30, 2016.

[15] There is no arguable case here that the General Division made an error of fact. The General Division stated that the Claimant’s MQP ended on June 30, 2016. This is wrong. The Claimant’s MQP ends on December 31, 2019. However, because he applied for and then started getting a retirement pension under the CPP as of July 2016, he needed to show that he had a severe and prolonged disability on or before June 30, 2016. This does not make June 30, 2016, the end of the MQP, but, in this case, June 30, 2016, is the last date the Claimant can show he had a severe and prolonged disability in order to get the disability pension because he started getting the retirement pension in July 2016. The General Division should not have called June 30, 2016, the MQP end date, and it caused confusion for the Claimant, which is understandable. However, there is no arguable case that the General Division based its decision on that error.

[16] The Appeal Division has reviewed the documents and listened to the hearing and is satisfied that the General Division did not ignore or misunderstand any of the evidence.^{Footnote 12} The Claimant provided evidence that his health has been bad for many years, but the General Division could not ignore the evidence that he was working in long-haul trucking and making a substantially gainful income until he stopped working in November 2016. Also, the General Division reviewed the available evidence but did not have evidence before it showing that the Claimant was incapable of making an application for disability benefits at any point before he actually applied.

Conclusion

[17] The application for leave to appeal is refused.