Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is allowed; the matter is returned to the General Division for rehearing.

Overview

[2] The Appellant, D. G., was last employed in his family’s wholesale and retail fish market. He stopped working in March 2014, after he found it increasingly difficult to remain on his feet for extended periods. He has not worked, or looked for work, since. He is now 30 years old.

[3] In September 2014, the Appellant applied for a disability pension under the Canada Pension Plan (CPP), claiming that he could no longer work because of chronic pelvic pain, heavy cramping, and heavy irregular bleeding. The Respondent, the Minister of Employment and Social Development (Minister), refused the application because it found that the Appellant’s disability was not “severe and prolonged,” as defined by the CPP, during the minimum qualifying period (MQP), which it determined would end on December 31, 2016.

[4] The Appellant appealed the Minister’s decision to the General Division of the Social Security Tribunal. The General Division conducted a hearing by teleconference and, in a decision dated October 17, 2018, found that the Appellant had provided insufficient evidence that he was incapable regularly of performing substantially gainful work as of the MQP and continuously afterward. The General Division acknowledged that the Appellant experienced pain but found that it did not prevent him from performing alternative work within his limitations.

[5] On January 10, 2019, the Appellant requested leave to appeal from the Tribunal’s Appeal Division, alleging that the General Division committed various errors in rendering its decision, among them:

• The General Division erred when it determined that his MQP ended on December 31, 2016, ignoring the fact that he has two children (born 2009 and 2010), which would trigger the child rearing drop-out (CRDO) provision;
• The General Division erred by ignoring the fact that he takes medically prescribed cannabis and that government legislation prohibits working or driving while impaired;
• The General Division disregarded Nova Scotia v Martin,^{Footnote 1} in which the Supreme Court of Canada recognized that chronic pain is a compensable disability;
• The General Division ignored case law, such as Smallwood v MHRD,^{Footnote 2}in which the Pension Appeals Board (PAB) found that a disability claimant’s subjective evidence can outweigh the absence of any objective medical evidence;
• The General Division failed to properly apply Villani v Canada,^{Footnote 3}which requires a decision-maker, when assessing disability, to specifically consider the claimant as a whole person, including background factors such as age, education, language proficiency, and work and life experience
• The General Division misunderstood the Appellant’s evidence about the effect of Lupon on his ability to work, as indicated by paragraphs 13, 14, and 22 of its decision;
• The General Division ignored case law, such as B.B. v MHRSD,^{Footnote 4}in which the PAB found that a claimant’s predictability and reliability are significant factors to consider when determining whether they are disabled; and
• The General Division drew a negative inference from the Appellant’s supposed failure to look for alternative work, ignoring evidence that he lacked even residual capacity to perform a substantially gainful occupation.

[6] In a decision dated January 21, 2019, I granted leave to appeal because I saw an arguable case that the General Division ignored the Appellant’s two children and, as a result, miscalculated the MQP.

[7] In a latter dated February 11, 2019, the Minister conceded that the General Division had erred in law and recommended that the appeal be allowed and the matter returned to the General Division for redetermination.

[8] I have decided that an oral hearing is unnecessary for this appeal. I am proceeding solely based on the documentary record because there are no gaps in the file and there is no need for clarification.

[9] Having reviewed the record and considered the parties’ written submissions, I have concluded that this matter demands a new hearing.

Issue

[10] According to section 58 of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: the General Division (i) failed to observe a principle of natural justice; (ii) erred in law; or (iii) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

[11] Since the parties agree that the General Division determined the MQP without considering whether the Appellant might have been eligible for the CRDO, I will limit my remarks to that issue.

Analysis

[12] The wording of section 58(1) suggests that, on matters of law, the Appeal Division should hold the General Division to a strict standard. In this case, I am satisfied that the General Division erred in law.

[13] The MQP is of critical importance in any Canada Pension Plan disability case because claimants can be found disabled only if their disability becomes severe and prolonged before a distinct eligibility cut-off date. In this case, the General Division found that the Appellant’s MQP ended on December 31, 2016, as had the Minister. However, the MQP can be extended under the CRDO provision, as set out in section 49(d) of the CPP, if the claimant is the primary caregiver for children under the age of seven. The question here is whether the General Division knew, or should have been expected to know, about evidence indicating that the Appellant had two young children and, if so, whether the General Division considered that evidence.

[14] I note that the Appellant did not disclose any children in his September 2014 application for Canada Pension Plan disability benefits,^{Footnote 5} even though the questionnaire specifically asks claimants about that subject. The Appellant left those questions blank. I also note, based on my review of the record, that there was no mention of children in the Appellant’s correspondence or in any the medical reports provided by his treatment providers. Furthermore, the Appellant, who represented himself before the General Division, told the presiding member that he understood how the MQP was calculated and agreed that, in his case, it ended on December 31, 2016.^{Footnote 6}

[15] That said, the subject of children came up later during the hearing when the General Division asked the Appellant whether there had been any change in his marital status since he had applied for benefits.^{Footnote 7} He replied that he was still single and mentioned that “[he] had two non-biological children,” ages eight and nine, for whom he was the caregiver, although he also said that he relied heavily on the support of family and friends. At this point, the presiding member raised the possibility that the Appellant’s MQP might be subject to revision under the CRDO provision but added, “because nobody has been notified of that, that hasn’t been considered.” The member told the Appellant to “keep that in mind” in case the decision was unfavourable to him.

[16] It is unclear why, if the Appellant was responsible for two children, he did not mention them on his application for benefits. Still, once information about children came to the General Division’s attention, it was then obliged to investigate whether or not the Appellant met the criteria of the CRDO provision and to make its own finding about an extended MQP. When it was issued, the General Division’s decision simply accepted the Minister’s determination of the MQP and contained nothing to indicate that information had surfaced to potentially call the December 31, 2016, cut-off date into question.

Remedy

[17] The DESDA sets out the Appeal Division’s powers to remedy errors by the General Division. Under section 59(1), I may give the decision that the General Division should have given; refer the matter back to the General Division for reconsideration in accordance with directions; or confirm, rescind, or vary the General Division’s decision. Furthermore, under section 64 of the DESDA, the Appeal Division may decide any question of law or fact that is necessary for the disposition of any application made under the DESDA.

[18] Under section 3 of the Social Security Tribunal Regulations, the Appeal Division is required to conduct proceedings as quickly as circumstances and considerations of fairness allow. The parties disagree on the appropriate remedy; the Appellant urges me to simply review the record and decide his disability claim on its merits, while the Minister recommends that I return the matter to the General Division. I can understand why the Appellant might want his claim brought to the swiftest possible conclusion, but I also feel that, in the interest of fairness, a new hearing is required.

[19] I have the power to give the decision that the General Division should have given, but I do not feel comfortable deciding this matter myself. The General Division’s error may have led it to apply the wrong MQP end-date, which means that the parties may not have been focused on the relevant eligibility period when they presented their evidence during the hearing. The General Division’s primary mandate, unlike the Appeal Division’s, is to weigh evidence and determine facts. As such, if the MQP is subject to revision, then the General Division would be in a better position than I to reassess the evidence—in particular, testimony—related to the Appellant’s claimed disability and its onset.

Conclusion

[20] I am allowing this appeal because the General Division erred in law. The record is not sufficiently complete to allow me to decide this matter on its merits, so I am referring it back to the General Division for redetermination. I am also directing the General Division to conduct an oral hearing, whether by teleconference, videoconference, or in person.