Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] Leave to appeal is refused.

Overview

[2] The Claimant was born in January 1956. When she was a child, she sustained head injuries in a motor vehicle accident, and was later diagnosed with epilepsy. Over the years, she held a series of jobs in the retail sector but stopped working in December 2017 after experiencing an increase in the frequency and intensity of her seizures.

[3] The Claimant began receiving a Canada Pension Plan (CPP) retirement pension in February 2016. She applied for the CPP disability pension in February 2018. The Minister refused the application because the Canada Pension Plan does not allow a claimant to cancel their retirement pension in favour of the disability pension once six months have passed. In this case, the Claimant applied for the disability pension two years after she began receiving the retirement pension.

[4] The Claimant appealed the Minister’s refusal to the Tribunal’s General Division, claiming that she had been incapacitated from submitting her disability application at an earlier date. The General Division held a hearing by teleconference and, in a decision dated September 30, 2019, it found that the Claimant was capable of forming or expressing an intent to make a disability application earlier than February 2018. However, the General Division agreed that the Claimant met the criteria for the new post-retirement disability benefit (PRDB), which had come into effect on January 1, 2019.

[5] On January 7, 2020, the Claimant’s representative applied for leave to appeal from the Appeal Division, alleging various errors on the part of the General Division.

Issue

[6] I have to decide whether any of the Claimant’s reasons for appealing would have a reasonable chance of success on appeal.

Analysis

[7] I have reviewed the General Division’s decision against the underlying record. I have concluded that the Claimant has not made any arguments that would have a reasonable chance of success on appeal.

[8] According to section 58(1) of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division. A claimant must show that the General Division:

(i) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;

(ii) erred in law, whether or not the error appears on the face of the record; 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.

[9] An appeal can proceed only if the Appeal Division first grants leave to appeal.^{Footnote 1} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 2} This is a fairly easy test to meet, and it means that a claimant must present at least one arguable case.^{Footnote 3}

Issue 1: Is there an arguable case that the General Division erred by misstating the grounds of appeal to the Appeal Division?

[10] The Claimant’s representative alleges that the Social Security Tribunal sends out confusing information about the permitted grounds of appeal. He says that the grounds of appeal listed in the letter that accompanied the General Division’s decision were different from the grounds listed in the application requesting leave to appeal.

[11] I do not see an arguable case here. The Claimant’s submission does not appear to fall under any of the grounds of appeal listed in section 58(1) of the DESDA, all of which pertain to the General Division’s conduct. None of them concern the Social Security Tribunal’s administrative functions.

[12] In any case, I do not see an argument that the information in the letter differed in any significant way from the information in the application. While they both used language that departed from the precise wording of section 58(1), they did so, it seems, in the interest of simplifying legalistic phrasing for the benefit of a general readership. I do not see how the information in either the letter or the application differed in substance from each other or, more to the point, from the actual statutory provision governing appeals to the Appeal Division.

Issue 2: Is there an arguable case that the General Division ignored altered or missing evidence?

[13] The Claimant’s representative says that he directed the General Division’s attention to mutilated, altered, or missing evidence, but the presiding member did not take his concern seriously.

[14] I do not see an reasonable chance of success for this argument. At 10:40 of the hearing recording, the Claimant’s representative expressed concern about “altered or mutilated” pages at GD1-13 and GD1-16 of the hearing file. These pages are two copies of a form entitled “Consent to Communicate Information to an Authorized Person,” signed and dated June 28, 2018, which permitted the representative to act on the Claimant’s behalf at the Tribunal. The first copy (GD1-13) appeared to have a Post-It note affixed to the bottom right-hand corner with the handwritten notation, “Got ripped by accident after document was received. Taped it and restamped below.” Below the notation was a Service Canada date stamp for June 28, 2018. The second copy (GD1-16) was in all respects identical to the first, except it lacked a Post-It note, and the bottom right corner was unobscured. I saw no indication that either document was in fact torn (although a tear would not necessarily be visible in a photocopied reproduction), nor did I see any other indication that they had been altered.

[15] The presiding member did not ignore or dismiss the representative’s concerns but discussed with him at length^{Footnote 4} how these alleged alterations might have affected the Claimant’s case. The representative replied that the documents were “not admissible” because they were not “true and correct.” He seemed to be arguing that any alternation might bring the legitimacy of the entire proceeding into question.

[16] After listening to the representative, the presiding member decided that his concerns had no merit, and she explained why:

This really isn’t evidence. This is just K. M. giving you her authorization to speak on her behalf. So it has no bearing on the issues under appeal. Nobody is taking away your right to speak on her behalf. They’ve accepted it at face value. Now if this was a medical document where a piece was missing, that would be different.^{Footnote 5}

The Claimant’s representative then pointed to three mostly blank pages in the hearing file,^{Footnote 6} suggesting that information had been removed from the file. The presiding member said that she did know what the three pages represented, although she expressed her suspicion that they were the back pages of other documents. She also noted that CPP hearing files were often disorganized.

[17] The Claimant’s representative went on to call the file “shoddy” and a “disgrace” but, in the end, he conceded that it was “not all that important.”^{Footnote 7} He concluded, “I’m not looking for an argument, I’m just trying to keep the playing field level.”

[18] I do not see an arguable case that the General Division mischaracterized the documents in question, nor do I see an argument that the General Division failed to give a fair hearing to the representative’s concerns about the documentation. In the end, the member listened to the representative and, having examined the pages herself, came to the defensible conclusion that no material evidence had been altered or removed.

Issue 3:  Is there an arguable case that the General Division relied on irrelevant information?

[19] The Claimant’s representative criticizes the General Division for relying on what he calls irrelevant information—the fact that the Claimant had previously applied for CPP disability benefits. 

[20] In its decision, the General Division wrote, “The Claimant applied for the CPP disability pension twice before. She applied in January 2003, and again in April 2013. Therefore, I am satisfied that the Claimant was aware of the disability pension.”^{Footnote 8}

[21] The Claimant suggests that her two prior disability applications had no bearing on whether she was able to form or express an intent to apply a third. I do not see an arguable case for this suggestion. It is not clear to me that the General Division’s reasoning greatly depends on the existence of the past applications. To the extent that it does, those applications would appear to be relevant. As the General Division noted, the Claimant was able to apply for disability benefits as recently as 2013, and she successfully applied for the retirement pension in late 2015. It was therefore reasonable to ask whether the Claimant has suffered a significant decline in her cognitive abilities in the five or so years leading up to the third application. The General Division examined the evidence during that period and found the evidence of such a decline lacking. I see no reason to interfere with that finding.

Issue 4: Is there an arguable case that the General Division erred when it considered a psychovocational report?

[22] The Claimant’s representative objects to the General Division’s reliance on an October 2015 psychovocational assessment report.^{Footnote 9} He notes that the author of that report cautioned against individuals lacking expertise in psychological psychometric assessment from interpreting the results.

[23] I do not see an arguable case on this point. The psychovocational report was submitted by the Claimant herself, and I cannot see why she did so unless she wanted the General Division to consider it. In the recording of the hearing, I did not hear the Claimant’s representative ask the General Division member to disregard it. In fact, he relied on it himself to support his arguments that the Claimant was incapacitated and disabled.

[24] Once this document was submitted, it became part of the record, and the General division was entitled to give it due weight. It is true that a preamble advised readers that the report was not for “medical-legal” purposes, and the Claimant rightly notes that the author warned against non-experts from interpreting the results. However, that warning was contained in an appendix that listed raw test scores from which some of the conclusions in the body of the report were drawn. I suspect that the report’s author was most concerned about the potential misuse of this unfiltered data.

[25] All that being said, the General Division presumably read the author’s provisos and took them into account when it was deciding how much weight to give the report. Above all, the report contained highly relevant information about the Claimant’s cognitive abilities from precisely the period when she claimed to be incapacitated from making an application.

Issue 5: Is there an arguable case that the General Division erred in its assessment of the severity of the Claimant’s disability?

[26] In its decision, the General Division wrote that it was required to take a “real world” approach when assessing the severity of the Claimant’s impairments. The Claimant’s representative objects to what he sees as a “vicious” and “violent” attack against his client.

[27] I do not see an arguable case in this instance. The General Division wrote that it needed to “get a realistic or ‘real world’ picture” of the severity of the Claimant’s disability.^{Footnote 10} However, in doing so, the General Division was merely invoking Villani v Canada,^{Footnote 11} the case where the offending phrase originated. In Villani, the leading authority on CPP disability, the Federal Court of Appeal urged decision-makers to look at disability claimants as whole persons and assess their employability based, not just on their impairments, but also on their background and personal characteristics. I do not see how the General Division’s statement of the existing law was offensive or otherwise unfair.

Issue 6: Is there an arguable case that the General Division breached a principle of natural justice by refusing to answer questions?

[28] The Claimant’s representative alleges that, during the hearing, he asked the member a number of questions, which she refused to answer.

[29] I do not see an arguable case for this submission. The Claimant points to two questions that he claims to have asked the member toward the end of the hearing. I have listened to the entire recording of the hearing, but I did not hear the representative explicitly ask, as he claims he did, whether the Claimant’s CPP contributions had less value than a comparable individual and, if so, whether those contributions made her a lesser person. It is true that the member asked the Claimant about her earnings during 2016 and 2017,^{Footnote 12} but I did not hear the representative object to what, on the face of it, was a reasonable line of questioning, or at that point ask any questions of his own.

[30] The Claimant’s representative also claims that he asked the member for an explanation of an email from the Minister to the Tribunal that was in the hearing file.^{Footnote 13} Again, my review of the hearing recording indicates that the representative expressed puzzlement about the email^{Footnote 14} but did not actually ask the member to explain it.

[31] Contrary to the representative’s allegations, the member was responsive to the questions that were actually put to her, and she did her best to explain some of the law underlying the complexities of the application process. In any event, the member would not have tainted the proceedings even if she had refused to answer the representative’s questions. While General Division members usually do their best to be helpful, they are, strictly speaking, under no obligation to answer questions. The purpose of a hearing is to give the parties an opportunity to provide information to the decision-maker, not the other way around.

Issue 7: Is there an arguable case that the General Division erred in law by misstating the test for incapacity?

[32] The Claimant’s representative alleges that the General Division stated two different legal tests for incapacity in its decision.

[33] I do not see an arguable case for this allegation. The representative points to paragraph 11, in which the General Divisionwrote that the Claimant was required to prove that she lacked the capacity to form or express an intention to apply for the disability pension. This statement, which the General Division member repeated elsewhere in its decision,^{Footnote 15} accurately reflects the law on incapacity, as stated in sections 60(8) to 60(11) of the Canada Pension Plan.

[34] I suspect that the Claimant and her representative may have confused the standard for incapacity for that of disability. They are two different concepts, although both were at issue in the General Division’s decision, because the Claimant was seeking, not just a CPP disability pension, but also the new PRDB. As the General Division explained in its decision, it was required to decide two questions and apply two standards: first, whether the Claimant was incapable of forming or expressing an intention to apply for a disability pension earlier than February 2018; and second, whether she was incapable regularly of pursuing any substantially gainful occupation as of January 2019.

Issue 8: Is there an arguable case that the General Division ignored important evidence?

[35] The Claimant’s representative argues that the General Division ignored important evidence, specifically a report from the Claimant’s family doctor,^{Footnote 16} and letters recognizing the Claimant’s disability from the Canada Revenue Agency (CRA) and British Columbia’s Ministry of Social Development and Poverty Reduction (MSDPR).^{Footnote 17}

[36] I do not see an arguable case for this submission. A decision-maker is presumed to have considered all the information made available to it^{Footnote 18} and, in this case, I see no indication that the General Division disregarded any significant item of evidence. In fact, it specifically referred to the family doctor’s report in its decision,^{Footnote 19} although it did so in support of its finding that the Claimant was disabled according to the criteria for the PRDB.

[37] The General Division made no reference to the approvals from the CRA or MSDPR, but that may be because they had little relevance to a finding of either incapacity or disability under the Canada Pension Plan. Such findings depend on criteria that differ from requirements for the disability tax credit for income tax purposes or disability benefits under a provincial social assistance program.

Issue 9: Is there an arguable case that the General Division erred when it found that the Claimant was not incapacitated while acknowledging elsewhere that she had a severe and prolonged disability?

[38] The Claimant sees a contradiction in the General Division’s finding that she was disabled without being incapacitated.

[39] I do not see a reasonable chance of success for this argument. As discussed above, disability and incapacity are two distinct concepts under the Canada Pension Plan, each having different meanings and objectives. The first requires claimants to show that they cannot regular perform substantially gainful employment; the second requires claimants to show that they could not make an application because they lacked even an ability to form or express an intention to do so. The latter is commonly seen as a far more difficult test to meet.

Conclusion

[40] My review of the decision indicates that the General Division meaningfully analyzed the evidence and came to the defensible conclusion that, more likely than not, the Claimant was capable of forming or expressing an intention to apply for the regular disability pension before February 2018, the month she actually applied for it. The Claimant was thus ineligible for a disability pension until the PRDB came into effect in January 2019.

[41] Since the Claimant has not put forward any arguments that would have a reasonable chance of success on appeal, the application for leave to appeal is refused.