Canada Pension Plan (CPP) disability

Decision

[1] The Claimant has failed to prove he lacked the capacity to form or express and intention to make an application for a CPP disability benefit before March 13, 2018, the date on which he actually applied. Therefore the maximum retroactive payment for the benefit remains December 2017 and payment beginning April 2018.

Overview

[2] The Minister received the Claimant’s application for the disability pension on March 13, 2018 and approved it on March 5, 2019. The maximum retroactive payment was applied making his date of onset December 2017. The Claimant appealed the date of onset stating his date of onset is January 8, 2015 when he stopped working. He claims the he could not apply earlier due to his condition of executive function disorder. He states he was incapable of researching the benefit and only found out about it when his mother-in-law informed him in 2018. The Claimant is a very articulate person who presented his testimony well at the hearing.

Issue(s)

[3] Was the Claimant incapable of forming or expressing an intention to make an application for a CPP disability benefit before March 13, 2018?

The legislation

[4] Subsection 60(9) of the CPP provides that an application may be deemed to have been made at an earlier date where the person had been incapable of forming or expressing an intention to make an application before the day on which the application was actually made, and that the application was made within a period after the incapacity ceased and that comprises the same number of days, not exceeding twelve months, as the period of incapacity. According to subsection 60(10) of the CPP the period of incapacity must be a continuous period.

Analysis

[5] The test for incapacity is a narrow test.

[6] Canada (Attorney General) v Danielson, 2008 FCA 78 notes: “The activities of a Claimant during the period between the claimed date of commencement of disability and the date of the application may be relevant to cast light on his continuous incapacity to form or express the requisite intention and ought to be considered”.

[7] In Sedrak v Canada (Social Development), 2008 FCA 86, the Federal Court of Appeal stated that the “capacity to form the intention to apply for benefits is not different in kind from the capacity to form an intention with respect to other choices which present themselves to an applicant.” The Court further held that “nothing in this scheme requires us to give to the word “capacity” a meaning other than its ordinary meaning”.

[8] The Claimant submits that it is due to his disability of executive function disorder that he was unable to form the intention to apply for benefits. His disability was diagnosed in 2011. It is a disorder with a range of cognitive, behavioral and emotional difficulties causing him to struggle with planning, time management, and organization among other things.

[9] He states that due to his disability he was unable to research the disability benefit and his right to apply. Therefore, he did not find out about the benefit until his mother-in-law told him about it and helped him apply.

[10] At the time between stopping work in January 2015 and applying for the benefit in March 2018, he was living alone. He was responsible for all his cooking and banking. He lived off his RRSP, which he had to access on his own without the help of any trustee. He was also drinking on and off during that period. He kept his life simple, taking walks, shopping, cooking and functioning on a simple level. He stated he does not “do” paperwork, however he was capable of filing his own taxes, as they were simple. He used to file his taxes on time, and is not sure if he filed those years on time. They were filed thought. He could do taxes, but he stated the paperwork for the CPP disability process was extraordinary. While I accept that the CPP process is quite extraordinary, it is also accepted that the process of filing taxes can be quite onerous as well.

[11] He states he made all his decisions for himself at the time.

[12] I also look to the Claimants medical evidence to determine if he was incapable of making any decisions in his life during that period.

[13] In the clinical notes of Dr. Bujold, his family physician, there are a number of attempts at quitting drinking. The Claimant attended Alcoholics Anonymous (AA) in 2014 and 2015, he went to programs for drinking in 2015 then returned to binge drinking in 2015 and eventually returned to AA. By 2018, after noting he wanted to apply for a CPP disability benefit, the doctor states he needs to absolutely deal with his alcoholism or he will only get worse and needs to self-refer to an addictions program. The Claimant did not self-refer but did continue with AA. AA is a self-referral program and it is up to the person to stay in the program or not. The Claimant made numerous decisions over those years to return to AA. He was capable of making decisions.

[14] The Claimant’s application indicates a mental health breakdown caused him to stop working. In January 20, 2015, at the time he stopped working the doctor’s notes show that his separation affected his mental health and was drinking more. When he moved out of the family he had a “meltdown” and couldn’t function, taking many periods off work. Eventually, his employer gave him the choice to terminate his contract and take Employment Income, or take a leave without pay and go to EAP. He took the leave option and went into a 4-week program. After that, the notes show he was capable of biking down to get lab tests, and going up to his trailer. He also got physiotherapy in November 2015 for right shoulder pain and was capable of attending regularly. As such, while he was still on and off drinking, he was able to continue making decisions.

[15] I find the Claimant did have the capacity to make his own decisions, such as filing his own taxes, going to his trailer and going to physiotherapy. He was also capable of living his life alone and handling his own finances and other daily activities of living such as shopping and cooking.

[16] The Claimant also submits that his mental health disability made it impossible for him to go through the paperwork process. He would not have researched the benefit because he would never proceed with the paperwork. He needed someone to tell him about the benefit and help him apply.

[17] When his mother-in-law told him abut the disability benefit, he was aware of what she was proposing he do. She took over the process of applying for him; however, he was aware of every step and approved it. He was just not aware of the benefit before she told him about it. Therefore, he was capable of understanding the benefit, and the process, but just did not know about it or how to access it without help.

[18] I rely upon Maloshicky v Canada (Attorney General), [2018] F.C.J.No 114, 2018 FC 51 that states that, “to establish such incapacity is not sufficient to show simply that the idea did not occur to the Claimant”.

[19] There is no evidence to support that he could not find out about programs. He was able to navigate taking out money from his RRSP and able to file his taxes every year.

[20] I find the Claimant has failed to prove he lacked the capacity to form or express and intention to make an application for a CPP disability benefit before March 13, 2018, the date on which he actually applied. Therefore the maximum retroactive payment for the benefit remains December 2017 and payment beginning April 2018.

Conclusion

[21] The appeal is dismissed.