Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

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

Overview

[2] M. T. (Claimant) applied for a disability pension under the Canada Pension Plan (CPP) in December 2015. She had been unable to work since November 1, 2005 because of pending neck surgery, severe depression, and anxiety. The Minister allowed the Claimant’s application on May 13, 2016. The Minister decided that for the purpose of the CPP disability pension, the Claimant’s disability started in May 2015.

[3] On August 31, 2017, the Claimant called Service Canada, explaining that she had information from her doctor suggesting that the start date of her disability should have been earlier.^{Footnote 1} Service Canada wrote to the Claimant telling her about the steps she would have to take to provide a late request for reconsideration of the Minister’s decision.^{Footnote 2}

[4] The Minister received the Claimant’s request for reconsideration on September 15, 2017, which was after the 90-day time limit for requesting reconsideration.^{Footnote 3} On October 12, 2017, the Minister refused to extend the time for the Claimant to apply for reconsideration.^{Footnote 4} The Claimant appealed to this Tribunal.

[5] The General Division dismissed the Claimant’s appeal on July 2, 2019. The General Division member decided that the Minister made its decision “judicially.”^{Footnote 5} The General Division member decided that they could not extend the time for the Claimant to apply for reconsideration.

[6] I 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) that would justify granting leave to appeal.

[7] I find that there is no arguable case that the General Division made an error under the DESDA. The application for leave to appeal is refused.

Issue

[8] Is there an arguable case that the General Division made an error that would justify granting the Claimant leave to appeal?

Analysis

Reviewing General Division decisions

[9] The Appeal Division does not give people a chance to re-argue their case in full at a new hearing. Instead, the Appeal Division reviews the General Division’s decision to decide whether there is an error. That review is based on the wording of the DESDA, which sets out the grounds of appeal.^{Footnote 6}

[10] At the leave to appeal stage, a claimant has to show that the appeal has a reasonable chance of success.^{Footnote 7} A claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 8} This is a low test to meet.

[11] The DESDA says that there are three kinds of errors. The General Division makes an error when it fails to provide a fair process,^{Footnote 9} when it makes an error of law,^{Footnote 10} or when it makes an error of fact.^{Footnote 11} 

Late requests for reconsideration

[12] When a request for reconsideration is late, the Minister must decide whether to grant the Claimant an extension. The law says that the Minister “may” extend the time. That means that the decision to extend time is a choice (a matter of discretion) that the Minister makes.^{Footnote 12}

[13] To get an extension of time to file the reconsideration request, the Claimant has to meet all four parts of this test:^{Footnote 13}

1. there is a reasonable explanation for requesting a longer period;
2. there is a demonstrated continuing intention to request reconsideration;
3. the request for reconsideration has a reasonable chance of success, and
4. no prejudice would be caused to the Minister or a party by allowing a longer period for making the request.

[14] The Minister must exercise the choice to extend the time judicially. The Minister is not acting judicially if it acts in bad faith, acts for an improper purpose or motive, takes into account an irrelevant factor, or acts in a discriminatory way.^{Footnote 14}

Is there an arguable case that the General Division made an error that would justify granting leave to appeal?

[15] There is no arguable case for an error by the General Division that would justify granting leave to appeal.

[16] The General Division member explained that they were looking only at whether the Minister made the decision “judicially.” The General Division explained that the Minister considered all of the factors before refusing to grant the Claimant an extension. The General Division found that the Minister acted reasonably by concluding that: the Claimant did not show a reasonable explanation for the delay; the Claimant did not show a continuing intention to appeal; and the Claimant’s request for an earlier start date for her disability had no reasonable chance of success.^{Footnote 15}

[17] The Claimant checked the boxes on the application for leave to appeal, saying that the General Division made all three errors in its decision. That means that the Claimant says the General Division failed to provide a fair process, made an error of law, and made an error of fact. The Claimant provided some arguments that explain why her request for reconsideration was late in the first place. The Claimant’s disability is a barrier that is difficult to overcome in different ways. There are days when she feels too unwell to get out of bed. The Claimant also explains that she has problems with her memory (which makes remembering dates difficult, for example).

[18] In my view, the Claimant has not raised an arguable case for an error by the General Division. The General Division was not just considering from scratch the reasons the Claimant needed the extension of time. The General Division’s job was to decide whether or not the Minister acted “judicially” when it decided that the Claimant would not have an extension of time to file the reconsideration. There is no arguable case that suggests that the General Division member made an error when they were reaching that decision. The Claimant’s arguments do not raise an arguable case that the General Division got the test wrong, or failed to provide the Claimant with a fair process. The Claimant seems to argue that the Minister made errors of fact in the reconsideration file. However, the Claimant has not raised an arguable case that the General Division member reached their decision that the Minister acted “judicially” based on some error of fact.

[19] It is the Claimant’s role to raise all of the arguments that support her application for leave to appeal.^{Footnote 16} However, I have reviewed all the information that the General Division member had when he made his decision in the Claimant’s case. I am satisfied that the General Division member did not ignore or misunderstand any evidence.^{Footnote 17}

[20] A final note. The Claimant experiences pain; she is home a lot due to her disability; she takes medications that affect her functioning; and she is depressed. She says that it has been impossible for her to keep track of the Tribunal’s “constant requests, dates and letters sent to me.”^{Footnote 18} This Tribunal is a justice organization that serves the public. There are some legal steps claimants must complete in each case at the Tribunal. However, it should not be too hard for people to manage their appeals. I am noting the challenges the Claimant describes as a person with a disability appealing to this Tribunal. The Tribunal is in the process of changing the letters we send to claimants so that it is easier to communicate with us, because claimants do not always find it easy to understand and respond to our letters.

Conclusion

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