Canada Pension Plan (CPP) disability

Decision and reasons

Decision

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

Overview

[2] M. S. (Claimant) was self-employed in car windshield repair and replacement. He stopped working in March 2014. He was diagnosed with B cell lymphoma (cancer) in 2007. He went through treatment and a period of remission. He applied for a disability pension under the Canada Pension Plan (CPP) in August 2014. At that time, his doctor explained that his cancer was active. The Claimant experiences pain and fatigue. He also explains that he has been depressed.

[3] The Minister denied his application for the disability pension initially and on reconsideration. The Claimant appealed to this Tribunal. The Claimant filed some documents in support of an appeal on March 7, 2018. The Tribunal asked the Claimant to provide more information to complete the appeal. The Tribunal wrote a letter to the Claimant confirming he had filed a complete appeal by April 11, 2018.

[4] The General Division found that the Claimant did not bring the appeal in time. As a result, the Claimant’s appeal did no go ahead.

[5] 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.

[6] There is no arguable case that the General Division made an error. Leave to appeal is refused.

Preliminary matters

[7] The Claimant provided three doctors notes at the Appeal Division level.^{Footnote 1} The General Division member did not have these notes when she made her decision. That means the notes are new evidence.

[8] Generally speaking, the General Division does not consider new evidence when making a decision on an application for leave to appeal.^{Footnote 2} There are some exceptions to that rule. None of the exceptions apply here. I have not considered new evidence the Claimant provided for the first time at the Appeal Division level.

Issue

[9] Is there an arguable case that the General Division member made an error when they decided that the Claimant did not bring the appeal in time (and therefore, the appeal would not go ahead to the next step)?

Analysis

[10] A claimant cannot appeal to the General Division of the Tribunal more than one year after the day on which the Minister communicated the reconsideration to the Claimant (the one-year mark).^{Footnote 3}

[11] The DESDA sets out the reasons on which a person can rely when appealing a General Division decision.^{Footnote 4} The Appeal Division can review a General Division member’s decision when that decision contains an error of fact,^{Footnote 5} contains an error of law, or when the General Division has failed to provide a fair process.^{Footnote 6}

[12] The Appeal Division refuses leave to appeal if it is satisfied that the appeal has no reasonable chance of success.^{Footnote 7} An arguable case is a case with a reasonable chance of success.^{Footnote 8}

Is there an arguable case that the General Division member made an error when they decided that the Claimant did not bring the appeal in time?

[13] There is no arguable case that the General Division made an error when it decided that the Claimant did not bring the appeal in time. The appeal could not go ahead to the next step because it was passed the one-year mark.

[14] At the Appeal Division, the Claimant argues that the General Division made an error by dismissing his appeal. He explains that his cancer is incurable. His pain medications are consistently increasing. He explains that with his medication, it is impossible to keep a job. He also has been seeking counselling for depression. He has financial problems because he cannot work.

[15] At the General Division, the Claimant was not able to remember exactly when he received the Minister’s reconsideration decision.^{Footnote 9} The Minister send the reconsideration decision letter by mail on July 30, 2015. Allowing 10 days for delivery by mail, the Claimant was still many, many months after the one-year deadline for the Tribunal to go ahead with the case.

[16] There is no arguable case for an error by the General Division here. Unfortunately, the General Division had no power to consider the reasons why the Claimant needs the disability pension. The General Division was not able to go ahead with the case – the Claimant brought his appeal more than one year after the day the Minister communicated the reconsideration decision to the Claimant. There is no arguable case that the General Division made an error of fact about the timing of the appeal. There is no arguable case that the General Division misapplied the law about the one-year limit.

[17] The Claimant was well outside that one-year limit, so the General Division was not able to consider the matter any further, including the reasons the Claimant gave for needing the disability pension. The Claimant has no reasonable chance of success on appeal.

Conclusion

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