Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] Leave to appeal is refused.

Overview

The Applicant, F. K., injured his back in 1989. Since then, he has worked intermittently, most recently in 2002, when he was employed as a fire alarm technician. He has a Grade Eight education and is now 55 years old.

[2] In November 2015, the Applicant applied for a Canada Pension Plan (CPP) disability pension, claiming that he could no longer work because of chronic back and shoulder pain. The Respondent, the Minister of Employment and Social Development (Minister), refused his application because it determined that his disability was not severe and prolonged as of the minimum qualifying period (MQP), which ended on December 31, 1997.

[3] The Applicant appealed the Minister’s refusal to the General Division of the Social Security Tribunal. The General Division held a hearing by teleconference and, in a decision dated August 29, 2018, dismissed the appeal, finding that the Applicant had failed to demonstrate that he was incapable regularly of pursuing any substantially gainful occupation as of the MQP. In particular, the General Division placed weight on the fact that the Applicant had earned than $23,807 in 2001—after theMQP.

[4] On November 26, 2018, the Applicant requested leave to appeal from the Tribunal’s Appeal Division. Among other things, the Applicant alleged that the Minister and the General Division breached the Canadian Charter of Rights and Freedoms (Charter) by subjecting him to “cruel and usual treatment” when they separately rejected his disability claim.

[5] The Social Security Tribunal Regulations (Regulations) set out a special process for raising a Charter argument. On June 6, 2019, the Appeal Division held a prehearing teleconference, in which it found that the Applicant had not fulfilled section 20(1)(a) of the Regulations. The Appeal Division allowed a reasonable period of time for the Applicant to make further submissions.

[6] In early July 2019, the Applicant responded with separate handwritten letters claiming that Service Canada representatives had misled him during the application process, thus violating, not only section 7 of the Charter, but several of its other provisions as well. In an order dated August 14, 2019, I found that the Applicant had failed to comply with section 20(1)(a) of the Regulations. I found that he had not referred, as required, to any specific provisions of the Canada Pension Plan or the Department of Employment and Social Development Act (DESDA), nor had he explained, in specific terms, how the Charter put them at issue. I ordered the appeal to proceed as a regular appeal and barred the Applicant from raising a constitutional challenge in subsequent proceedings.

[7] There remained the Applicant’s several other reasons for appealing, which I will summarize as follows:

• The General Division ignored his numerous requests for information;
• The General Division ignored the government’s failure to attend the hearing, which denied him an opportunity to face his accuser;
• The General Division compromised his right to an impartial hearing by belittling his impairments and repeatedly siding with the government; and
• The General Division denied his right to counsel by persuading him, in the period leading up to the hearing, that he did not need a legal representative.

Having reviewed the General Division decision against the underlying record, I have concluded that the Applicant has not advanced any grounds that would have a reasonable chance of success on appeal.

Issues

[8] According to section 58(1) of the 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.

[9] An appeal may be brought only if the Appeal Division first grants leave to appeal,^{Footnote 1} but the Appeal Division must first be satisfied that it has a reasonable chance of success.^{Footnote 2} The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.^{Footnote 3}

[10] My task is to determine whether any of the Applicant’s reasons for appealing fall under the categories specified in section 58(1) of the DESDA and, if so, whether any of them raise an arguable case on appeal.

Analysis

[11] The Applicant disagrees with the General Division’s finding that he was not disabled as of the MQP. He points to what he believes are numerous flaws in the process that led to that finding. I have reviewed the file and do not see an arguable case that the General Division violated any principle of natural justice when it found that the Applicant did not qualify for CPP disability benefits.

[12] It is clear from the Applicant’s submissions that his ire is directed at the Minister as much as it is the General Division. However, since I have no direct jurisdiction over Ministerial conduct, I will only address the Applicant’s allegations that he was treated unfairly by the General Division:

• I do not see an arguable case that the General Division ignored the Applicant’s requests for information. The record shows that, on May 10, 2018, the Applicant telephoned the Tribunal seeking a complete copy of his file. On May 23, 2018, the Tribunal sent the file by courier to the Applicant’s home address, where it was delivered five days later.
• I do not see an arguable case that the Minister’s decision not to participate in the hearing prejudiced the Applicant’s interests. There is nothing in the legislation governing the Tribunal that requires a party to attend its hearings. The onus is on CPP disability claimants to show that they are entitled to the pension; the law does not require the Minister to prove otherwise. An appeal to the General Division is not a criminal proceeding, and the Minister cannot accurately be termed, as the Applicant would have it, an “accuser.” The Applicant suggests that he wanted an opportunity to question the Minister, but he does not specify what relevant information he expected to receive, nor does he explain how being deprived of that information impaired his case.
• I do not see an arguable case that the General Division displayed bias toward the Minister. I have listened to the entirety of the audio recording of the hearing and heard nothing to substantiate the Applicant’s allegation that the General Division jokingly dismissed his post-traumatic stress as “no big deal.” Throughout the hearing, the presiding member’s tone was measured and respectful. I heard no indication that the member systematically favoured the Minister’s position. At several points,^{Footnote 4} the Applicant expressed disappointment that a portion of his former wife’s CPP credits had not, as he had expected, been added to his account to extend his MQP past 1997. The member replied that, if the Minister had failed to process the Applicant’s credit split application, there was nothing he could do about it. The Applicant may have taken this remark as evidence as bias, but it simply reflected the reality that the General Division has no jurisdiction to remedy administrative errors that the Minister may have committed.^{Footnote 5}
• I do not see an arguable case that the General Division denied the Applicant’s right to counsel. As a matter of practice, the Tribunal does not require claimants to have legal representation, but it does not discourage them from getting it if they so wish. On May 23, 2018, the General Division adjourned a previously scheduled hearing to give the Applicant additional time in which to obtain legal representation.^{Footnote 6} He did not take advantage of this opportunity. I saw nothing on the record, before or after the adjournment, to suggest that anyone associated with the General Division attempted to dissuade the Applicant from hiring a lawyer.

[13] Otherwise, the General Division conducted what appears to be a thorough analysis of the Applicant’s reported medical conditions—principally chronic back and shoulder pain—and whether they affected his capacity to regularly pursue substantially gainful employment as of December 31, 1997. In doing so, the General Division took into account the Applicant’s background—including his age, education, and work experience—but found that these factors were not significant impediments to his ability to perform low impact work as of the MQP. Above all, the General Division placed weight on the Applicant’s post-MQP employment as a full-time fire alarm technician, which generated nearly $24,000 of earnings in 2001. I see nothing to suggest that the General Division misconstrued evidence or misapplied the law in making these findings.

Conclusion

[14] Since the Applicant has not identified any grounds of appeal that would have a reasonable chance of success on appeal, the application for leave to appeal is refused.