Canada Pension Plan (CPP) disability

Decision and reasons

Decision

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

Overview

[2] K. B. (Claimant) has fibromyalgia. She stopped working in October 2015. The Claimant applied for a Canada Pension Plan (CPP) disability pension in March 2017. The Minister denied her application initially and on reconsideration. The Claimant appealed to this Tribunal. On May 10, 2019, the General Division dismissed the Claimant’s appeal.

[3] The Appeal Division must decide whether there is an arguable case that the General Division made an error under the Department of Employment and Social Development Act (DESDA). I find that there is no arguable case that the General Division made an error, and therefore the application for leave to appeal is refused.

Issues

[4] The issues are:

1. Is there an arguable case that the General Division made an error of fact by ignoring evidence from a doctor about the Claimant’s condition during her minimum qualifying period?
2. Is there an arguable case that the General Division made an error of law?
3. Is there an arguable case that the General Division made an error relating to fair process, or relating to its jurisdiction?

Analysis

Reviewing General Division decisions

[5] The Appeal Division does not give the Minister or the Claimant the chance to re-argue their case in full again at a new hearing. Instead, the Appeal Division is focussed on reviewing the General Division’s decision to decide whether there are errors. The only errors that allow the Appeal Division to grant leave to appeal are those that are listed in the DESDA.^{Footnote 1} These errors are referred to as the “grounds of appeal.”

[6] The DESDA says that it is an error of fact when the General Division bases 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 2} For there to be an error, the finding of fact needs to be material.^{Footnote 3} The finding of fact needs to be incorrect.^{Footnote 4} The finding of fact needs to be made in a way that: willfully goes against the evidence,^{Footnote 5} is not guided by steady judgment,^{Footnote 6} or ignored the evidence.^{Footnote 7}

[7] The DESDA says that it is an error when the General Division fails to observe the principles of natural justice, or acts beyond or refuses to exercise its jurisdiction.5

[8] The principles of natural justice focus on the fairness of the process. A decision in which the process was unfair may be one in which the General Division failed to observe the principles of natural justice. What fairness requires in each case will depend on a variety of factors.^{Footnote 8} The General Division only has the powers that are set out in law. If the General Division member decides something that they do not have the authority legally to decide, that is acting beyond jurisdiction. If the General Division fails to make a decision that it was required legally to make, that is refusing to exercise jurisdiction.

[9] The DESDA also states that the Appeal Division can review the General Division on errors of law, regardless of whether those errors are made on the face of the record. At the leave to appeal stage, a claimant must show that the appeal has a reasonable chance of success.^{Footnote 9} To meet this requirement, the claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 10} This is a low test to meet.

Issue 1: Is there an arguable case that the General Division made an error of fact by ignoring evidence from a doctor about the Claimant’s condition during her minimum qualifying period?

[10] The Claimant has not shown an arguable case that the General Division made an error of fact by ignoring evidence from a doctor about the Claimant’s condition during her minimum qualifying period (MQP).

[11] To be eligible for a disability pension, claimants must show that they have a severe and prolonged disability during their minimum qualifying period (MQP).^{Footnote 11} The MQP is calculated based on the claimant’s contributions to the Canada Pension Plan.^{Footnote 12}

[12] In this case, the Claimant’s MQP ended on December 31, 2009. She had some earnings in 2010. Those earnings were below the minimum level needed to make contributions to the Canada Pension Plan. As a result, if the Claimant became disabled before the end of November in 2010, she would qualify for the disability pension according to a process called “proration.”^{Footnote 13}

[13] The General Division is not required to mention every piece of evidence in its decision.^{Footnote 14} However, where the evidence is important, the General Division should discuss it.^{Footnote 15}

[14] The Claimant argues that the General Division ignored a letter from Dr. Fudge, dated February 5, 2018.^{Footnote 16} The Claimant’s lawyer argues that Dr. Fudge’s letter was important, and although it was in the record at the General Division, he forgot to mention it specifically in his arguments. The Claimant’s lawyer argues that as a result, the General Division made its finding of fact about the Claimant’s disability erroneously, and by ignoring Dr. Fudge’s letter.^{Footnote 17}

[15] Dr. Fudge’s letter confirms that that she first saw the Claimant in 2016 and diagnosed her with fibromyalgia. Dr. Fudge stated:

Looking back through her chart, she's been having symptoms however since at least 2010. She saw a local internist in November 2010 with a long-standing history of left sided chest pain, associated with numbness and tingling in her left arm. She was complaining of dyspepsia and abdominal bloating as well. She had a colonoscopy done in November 2010 because of persistent right upper quadrant pain. In 2013, she saw a local orthopedic surgeon complaining of knee pain. In 2015, she saw a general surgeon because of persistent epigastric discomfort. Looking back, I do think that all of these symptoms could certainly go along with her chronic pain. It looks as if her symptoms predated 2010 likely ongoing since at least 2009.

[16] In the decision, the General Division member noted that while there was evidence that the Claimant had some symptoms, “most significantly abdominal pain” there was not medical evidence that supported that her disability was severe in November 2010.^{Footnote 18} The General Division noted as well that the Claimant continued to work part-time in 2010, and then full-time from 2013 to 2105.^{Footnote 19} She testified that she stopped working in October 2015 because her condition had become worse. The General Division member also noted that the Claimant stated in her disability questionnaire that she became disabled as of November 2016.^{Footnote 20}

[17] I find that the Claimant has not raised an arguable case for an error of fact. The General Division did make reference to Dr. Fudge’s evidence in its analysis, just not by name. I find that the General Division’s reference to abdominal pain was a reference to the symptoms Dr. Fudge described. There is no arguable case that the General Division ignored the evidence. The General Division member weighed all of the available evidence to reach a decision. The General Division applied the facts (including the medical evidence from the MQP, along with the facts about the Claimant working after the end of the MQP) to the law, and decided that the Claimant’s disability was not severe. I cannot find an error that is really a disagreement about the application of settled law to the facts.^{Footnote 21}

Issue 2: Is there an arguable case that the General Division made an error of law?

[18] The Claimant has not raised an arguable case for an error of law.

[19] The Claimant argues that the General Division made an error of law by applying an MQP which was “arbitrary” in nature, and did not take into account what the Claimant calls her “entire body of work.”^{Footnote 22}

[20] In my view, the contributory period takes into account what the Claimant calls her “entire body of work.” However, the Minister must calculate the MQP using that contributory period based on the years of valid contributions to the Canada Pension Plan.

[21] There is no arguable case for a legal error in applying the MQP to the Claimant’s contributory period. The Claimant’s counsel is correct: the MQP is a barrier to the Claimant qualifying for the disability pension in this case. However, there is no arguable case for an error of law that stems from simply applying the MQP. Applying the MQP is not optional: it is a legal requirement.^{Footnote 23} There is nothing arbitrary about applying the MQP in CPP disability pension applications, even if the impact for some Claimants is that they do not qualify for a disability pension.

Issue 3: Is there an arguable case that the General Division made an error relating to fair process or relating to its jurisdiction?

[22] The Claimant has not raised an arguable case for an error relating to fair process or jurisdiction.

[23] The General Division decision explains:

The CPP provisions bind me. I do not have the authority exercise any form of equitable power in respect of the appeals coming before me. The Tribunal is a statutory decision-maker and I am required to interpret and apply the provisions as they are set out in the CPP. I have no authority to make exceptions to the provisions of the CPP nor can I render decisions based on fairness, compassion, or extenuating circumstances.^{Footnote 24}

[24] I understand the Claimant to argue that the General Division’s decision was unfair, lacked compassion, and denied extenuating circumstances. The Claimant seems to challenge in some way the General Division member’s explanation of his jurisdiction.^{Footnote 25} However, the Claimant has provided no argument about the source of any jurisdiction the General Division might have that it failed to use in this case.

[25] The Claimant has not raised an arguable case for an error relating to fair process or to jurisdiction. The General Division member properly explained what his job was, and properly described the extent of his powers. In my view, the Claimant is challenging the fairness of the outcome, but natural justice is focussed on fair process. The General Division member cannot go beyond his powers to grant a disability pension on compassionate grounds, or based on extenuating circumstances.

[26] I have reviewed the record. I am satisfied that the General Division member did not ignore or misconstrue any evidence. He gathered additional information from the Claimant about the nature of the work she was doing after the end of the MQP from 2013 to 2015, and he weighed that evidence against the other evidence about her symptoms (especially abdominal pain) during the MQP.

Conclusion

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