Canada Pension Plan (CPP) disability

Decision

[1] The Claimant is not entitled to have the General Division’s December 24, 2019, decision rescinded or amended. However, his concurrent appeal to the Appeal Division may now proceed.

Overview

[2] On December 24, 2019, the General Division of the Social Security Tribunal (“Tribunal”) determined that the Claimant was not entitled to a Canada Pension Plan (“CPP”) disability pension (the “December 2019 Decision”). In accordance with the Department of Employment and Social Development Act^{Footnote 1} (the “DESD Act”), the Claimant filed an application on February 7, 2020, to rescind or amend that decision (“Application to Rescind or Amend”). However, he did not file any new documents with his application.

Issues

[3] Can this matter proceed without a hearing?

[4] Does the evidence filed in support of the application establish a new material fact, within the meaning of paragraph 66(1)(b) of the DESD Act?

[5] If the Tribunal finds that there is a new material fact, was the Claimant’s disability severe and prolonged as of his MQP date?

Analysis

[6] I must first deal with the manner of proceeding.

Can this matter proceed without a hearing?

[7] For the reasons that follow, I may proceed with an “on the record” decision. It is not necessary to hold a hearing. I can base my decision on what is already in the file.

[8] The Social Security Tribunal Regulations set out how the Tribunal should conduct proceedings. In particular, the Tribunal must conduct proceedings as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.^{Footnote 2} This means I should consider the Claimant’s particular situation when deciding whether to have a hearing. Holding a hearing is not a strict requirement.^{Footnote 3} To consider the Claimant’s situation, it is best to set out the history of the Application to Rescind or Amend. All events took place in 2020.

History of application to rescind or amend

[9] The Application to Rescind or Amend form did not specify what type of hearing, if any, would be provided. The Claimant did not include any new documents with his Application to Rescind or Amend.^{Footnote 4} On February 20, the Tribunal advised the parties that they had 30 days to file additional documents or submissions. Later that day, the Claimant e-mailed the Tribunal to say he had trouble with focus and concentration. He also said he was afraid of a trial. He gave the addresses of some doctors. He wanted to receive the CPP disability pension immediately.^{Footnote 5}

[10] On March 10, the Tribunal called the Claimant to advise that no new evidence had been filed. The Claimant called back on March 11 and said Dr. Wallani refused to provide additional medical documents. He then sent an e-mail on March 11 that gave Dr. Wallani’s contact details, and told the Tribunal not to bother the Claimant by phone.^{Footnote 6}

[11] In a March 18 e-mail, the Claimant again told the Tribunal to follow up with Dr. Wallani and the “Markham Mental Hospital”. He said he was afraid to go out because of the coronavirus. He told the Tribunal to “look after me”, but also added, “please don’t bother me”.^{Footnote 7}  

[12] On March 20, the Tribunal told the Claimant by voicemail that the Tribunal was not allowed to contact anyone for his medical documents. He could call the Tribunal if he had any questions.

[13] Also on March 20, the Tribunal sent a Notice of Pre-Hearing Conference to the parties. The Notice said the Claimant had not filed any new evidence, and his application would not have any chance of success unless he did. He was also reminded that his concurrent appeal of the December 2019 Decision would not proceed at the Tribunal’s Appeal Division until the Application to Rescind or Amend was resolved. The Notice said the April 6 pre-hearing conference was to discuss the requirements of an Application to Rescind or Amend. The Notice also gave detailed instructions on how to join the conference.^{Footnote 8}

[14] On March 22, the Claimant e-mailed the Tribunal and said he was unable to go outside. He asked the Tribunal to make a decision with the available health records.^{Footnote 9} On March 26, he e-mailed again to request payment of his CPP disability pension. He added that he had no job because of the coronavirus.^{Footnote 10}

[15] On March 30, the Tribunal called the Claimant and left a message about the upcoming pre-hearing conference on April 6. He was again given instructions for joining the conference, and he was asked to call or e-mail to confirm that he would attend. However, he did not call or e-mail the Tribunal before the conference.

[16] On April 6, I attended the pre-hearing conference. The Claimant’s attendance was essential, because the conference was to discuss the unmet requirements for his application. However, he did not attend. I waited for more than 30 minutes for him to show up.

[17] Later on April 6, the Claimant e-mailed the Tribunal and claimed he had been trying to reach the Tribunal. He had left phone messages saying that he could not go to the doctor, and he had no income. However, it was unclear whether he had attempted to join the phone conference. He again urged the Tribunal to grant him disability benefits.^{Footnote 11}

[18] On April 7, I elected to give the Claimant one more chance to participate in the pre-hearing conference. A new Notice of Pre-Hearing Conference was sent to him. The new conference was set for April 21. Once again, the Notice said the Claimant had not filed any new evidence, and his application would not have any chance of success unless he did. He was reminded that his concurrent appeal at the Appeal Division would not proceed until his Application to Rescind or Amend was resolved. The Notice also affirmed the purpose of the pre-hearing conference, and gave detailed instructions on how to join the conference. Finally, the Claimant was told that his participation in the phone conference was imperative. In bold print, the Notice warned that if “[the Claimant] does not participate, the Tribunal may render an ‘on the record’ decision based on the existing contents of his file.”^{Footnote 12}

[19] On April 15, the Tribunal called the Claimant to confirm that he received the Notice of Pre-Hearing Conference and would attend the pre-hearing conference on April 21. The Claimant was offered an abeyance, but he said he wanted to “get the situation resolved as quickly as possible” and “go through with the April 21 hearing”.

[20] On April 21, I attended the second pre-hearing conference. The Minister’s representative also attended. I again waited more than 30 minutes for the Claimant, but he did not attend. It has now been more than one week since the second conference. The Claimant has not contacted the Tribunal to explain his absence, nor has he submitted any new documents.

[21] The Claimant has had many opportunities to file new evidence in support of his application. While it is his responsibility to file new evidence, he has tried to delegate this to the Tribunal. However, the Tribunal’s role does not include gathering evidence on behalf of parties. He could also have discussed his situation with the Tribunal Member. The pre-hearing conferences were set up for his benefit, but he twice failed to attend. He has not said why he missed the most recent pre-hearing conference, despite knowing that the Tribunal could make a decision “on the record” if he did not attend. While he frequently referred to COVID-19, he has also shown the ability to communicate by phone and e-mail. Both pre-hearing conferences were conducted by phone. I am satisfied that he has had every opportunity to participate fully in this application, but failed to do so.

[22] Considering the above factors, I find that the application should proceed in the quickest and most informal way possible. This means I will render a decision based on the contents of the Tribunal file. In fact, the Claimant himself suggested this on March 22.^{Footnote 13}

Does the evidence filed in support of the application establish a new material fact within the meaning of paragraph 66(1)(b) of the DESD Act?

[23] Paragraph 66(1)(b) of the DESD Act says:

1. 66. (1) The Tribunal may rescind or amend a decision given by it in respect of any particular application if:
   1. (b) …a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.

[24] The Claimant must prove (on a balance of probabilities) that the evidence filed in support of the Application to Rescind or Amend establishes a new material fact within the meaning of paragraph 66(1)(b) of the DESD Act.

[25] The Federal Court of Appeal has set out the test for evidence to be admissible as a “new fact”:^{Footnote 14}

1. It must establish a fact (usually a medical condition) that existed at the time of the original hearing but was not discoverable before the original hearing by the exercise of due diligence (the “discoverability test”), and
2. The evidence must reasonably be expected to affect the results of the prior hearing (the “materiality” test).

[26] The Federal Court has said that an applicant must provide evidence of the steps taken to find the new evidence, and explain why the applicant could not have produced the new evidence at the time of the hearing.^{Footnote 15} Finally, the Federal Court of Appeal said the materiality requirement means that the new evidence must be relevant to an applicant’s ability to work at the MQP.^{Footnote 16}

[27] The Claimant did not submit any new documents in support of his Application to Rescind or Amend. When asked to list the evidence of new material facts, including the number of pages for each document, he merely wrote the names of some doctors and hospitals. When asked for his reasons for the application, he wrote, “income/disability medical/dental/support no insurance/life educational support CPP - disability income I am 63 years old.”^{Footnote 17} His application appears to rely on his perceived personal need for CPP disability benefits, rather than any new evidence. He cannot use the Application to Rescind or Amend to force the Tribunal to gather evidence for him, so that the Tribunal can overturn its own decision.

[28] I find that there is no new evidence. The Claimant has suggested some sources of evidence, but has not actually provided this evidence. It is therefore impossible for him to meet the requirements in s. 66(1)(b) of the DESD Act. He cannot meet either the discoverability or materiality tests set down by the Federal Court of Appeal. As there is no new evidence, he also cannot show what steps he took to find it, as required by the Federal Court.

[29] With no new evidence, there is nothing to establish a new material fact within the meaning of paragraph 66(1)(b) of the DESD Act. The Claimant’s application must fail. However, his appeal to the Appeal Division may now proceed, as it was suspended until this application was resolved.

Was the Claimant’s disability severe and prolonged as of his MQP date?

[30] As there are no new material facts, it is not necessary to answer this question.

Conclusion

[31] The Application to Rescind or Amend is dismissed.