Citation: CP v Minister of Employment and Social Development, 2020 SST 719
Tribunal File Number: GP-19-11
BETWEEN:
C. P.
Claimant (Claimant)
and
Minister of Employment and Social Development
Minister
SOCIAL SECURITY TRIBUNAL DECISION
General Division – Income Security Section
| Decision by: | Kelley Sherwood |
| Claimant represented by: | Daniel Balena |
| Teleconference hearing on: | May 6, 2020 |
| Date of decision: | July 23, 2020 |
On this page
Decision
[1] The Claimant, C. P., cannot use the incapacity provision to receive a greater retroactive payment of his Canada Pension Plan (CPP) disability pension.
Overview
[2] The Claimant worked as a police officer. He was seriously injured in a car accident in June 2010. He has not worked since. The Minister received the Claimant’s first application in November 2010, but denied it. He did not reapply until February 2018. The Minister allowed his second application, finding that he met the test for a disability. The Minister granted him the maximum retroactive payment allowable under the CPP.
[3] The Claimant maintains that he is entitled to a greater retroactive payment because his disability has been continuous since his accident. He appealed the reconsideration decision to the Social Security Tribunal (the Tribunal). Since appealing to the Tribunal, the Claimant has filed a Declaration of Incapacity form in support of his request for a greater retroactive payment.
Issue
[4] Can the Claimant use the incapacity provision in the CPP to receive a greater retroactive payment of his CPP disability pension?
Procedural history
[5] The procedural history of this file is lengthy and requires some explanation.
[6] As stated, the Minister received the Claimant’s first application in November 2010Footnote 1. In March 2011, the Minister explained that it was denying the application. It noted, “… the information submitted on your file shows that you should be able to return to suitable work in the foreseeable future.”Footnote 2 The letter explained that the Claimant had 90 days to ask for a second opinion of the denial, known in the CPP as a “reconsideration decision.”
[7] The Claimant’s representative wrote to the Minister in November 2015 to ask the status of the Claimant’s appealFootnote 3. This was the first communication from the Claimant or his representative to the Minister since March 2011, according to the Minister’s records.
[8] The Minister asked the Claimant’s representative to provide a more detailed explanation as to why the reconsideration request was lateFootnote 4. It allowed 30 days for a response, but the Minister did not receive a response by the deadline. The Minister denied the late reconsideration request in February 2016Footnote 5.
[9] The Claimant’s representative then filed an appeal with the Tribunal in March 2016Footnote 6. The matter before the Tribunal was whether the Minister acted judicially when it denied the Claimant’s request for a late reconsideration decisionFootnote 7. The Claimant’s representative explained that the reconsideration request had been made on time (specifically April 7, 2011), but the Minister lost the request. However, the argument did not persuade the Tribunal. In April 2017Footnote 8, the Tribunal decided that the Minister had acted judicially in denying a late reconsideration decision. The Tribunal dismissed the appeal.
[10] The Claimant then filed a new application for a disability pension in February 2018Footnote 9. The Minister allowed the application, finding that the Claimant met the criteria for a severe and prolonged disability. As per the CPPFootnote 10, the Minister deemed the Claimant disabled as of November 2016 (15 months prior to the Minister receiving his application) with payments beginning March 2017 (after the mandatory four-month waiting period).
[11] The Claimant’s representative applied for a reconsideration of the 2018 application. He argued that the Claimant was entitled to benefits dating back to his accidentFootnote 11. The Minister denied his request in November 2018 explaining that the Claimant had been paid the maximum retroactive payment allowable under the CPPFootnote 12. The Claimant appealed the reconsideration decision to the Tribunal in December 2018Footnote 13.
[12] I held a hearing in February 2020. I began by asking the Claimant’s representative on which provision in the CPP was he relying to request retroactive payments greater than 15 months. In the discussion that followed, I explained the provisions in the CPP, including the incapacity provision. The Claimant’s representative asked for an adjournment to explore making an incapacity application. The Claimant’s long-time specialist has since completed a Declaration of Incapacity form. A second hearing was held in May 2020 to hear arguments on the issue of incapacity. I put the appeal in abeyance (on hold) to give the Minister time to investigate the possibility of making a finding of incapacity. Both parties have now had time to provide submissions on the matter.
Analysis
The Claimant does not meet the threshold for incapacity under the CPP
[13] The Claimant cannot use the incapacity provision to change the start of his disability pension. I agree that he is disabled from work, and that his condition is unlikely to change. But the definition of incapacity under the CPP goes far beyond that of the definition of disability. It is a very difficult test to meet.
[14] The CPP states that the earliest a person can be deemed disabled is fifteen months before the Minister received his or her disability applicationFootnote 14. The only exception to this rule is if a person can demonstrate he or she was not able to form or express an intention to apply for the benefit before the date he or she actually appliedFootnote 15. In such a case, an earlier application date is possible.
[15] To meet the definition of incapacity under the CPPFootnote 16, a person must have met each of the following three requirements:
- been incapable of forming or expressing an intention to make an application before the day on which the application was actually made;
- ceased to be so incapable before that day; and
- the application was made within the period that begins on the day on which he or she had ceased to be so incapable that is the same number of days as the period of incapacity, not exceeding twelve months; or if the period of incapacity is fewer than thirty days, the application must have been made not more than one month after the month in which the person had ceased to be so incapable.
The claimed period of incapacity will not change the start date of the Claimant’s pension
[17] In May 2020, the Claimant’s long-time neuropsychiatrist, Dr. McCullagh, completed a Declaration of Incapacity form on behalf of the ClaimantFootnote 18. In it, he noted that the Claimant’s period of incapacity began on June 5, 2010, the date of his accident, and it “persisted at least to January 2011.”
[18] An attached letter referenced incapacity from the date of accident until November 9, 2010Footnote 19. The date appears to be linked to the Claimant’s initial disability application, but I do not have jurisdiction to review it. The law requires a reconsideration decision for the Tribunal to hear disability appeals under the CPP. The Minister never issued a reconsideration decision. As documented in the procedural history, a prior Tribunal member upheld the Minister’s decision to deny the Claimant’s late reconsideration request. That application is now closed and cannot be reopened.
[19] Even if I accept Dr. McCullagh’s contention that the Claimant met the criteria to use the incapacity provision from June 2010 until January 2011, the claimed period of incapacity is just seven months. That means the Claimant would have had to file his disability application within seven months of regaining capacity in order to benefit from the provision. However, his application was not received until February 2018. In other words, his application was received beyond the time limit allowed to use the incapacity provision. Therefore, the claimed period of incapacity would not change the start date of his pension.
The evidence does not show that the Claimant’s incapacity persisted
[20] Dr. McCullagh’s use of the words “at least” to describe the claimed period of incapacity leaves open the possibility that the Claimant’s incapacity may have persisted beyond January 2011. In theory, Dr. McCullagh’s report could support an argument that the Claimant’s incapacity persisted until the time of his current disability application. However, an examination of the Claimant’s activities does not support this conclusion.
[21] It is important to understand that the capacity to form the intention to apply for benefits is not different from the capacity required to form an intention with respect to other choices that present themselves to a personFootnote 20. In one leading case, the Federal Court of Appeal found that activities such as the following could be used to demonstrate capacity: applying for private disability benefits; battling for several years with insurance companies; hiring and instructing legal counsel; and seeking out medical reports unassistedFootnote 21.[22] I considered the activities the Claimant resumed in the time between his accident and the time he filed his current disability application. The testimony at the hearing showed that he had hired a lawyer, participated in daily rehabilitation during 2011, resumed driving by at least September 2011 (the month of the birth of his second child), began attending medical appointments independently (including travelling every two months from Toronto to Hamilton to see Dr. McCullagh), and walked his daughter to school. His capacity to perform these activities does not support a finding of ongoing incapacity. Undoubtedly, the functional limitations reported on his CPP Questionnaire make it difficult for him to accomplish some of these activitiesFootnote 22, but functional limitations do not necessarily amount to incapacity under the CPP.
[23] At the hearing, the Claimant argued that his wife organized the completion of his CPP disability application on his behalf. However, the Federal Court of Appeal has clarified that it is an error to confuse the act of making an application with the capacity to form or express an intention to make an application.Footnote 23 In particular, I note that that the Claimant signed the application. He did not require, nor did he give anyone power of attorney to make the application on his behalf. He may have needed assistance to complete the application, but that does not mean he was incapable of forming or expressing an intention to apply.
[24] In making my decision, I want to stress that I am not diminishing the life-changing nature of the Claimant’s accident and subsequent disability. Not only did the accident significantly alter his life, but it has also had a tremendous impact on his family. His wife provided compelling testimony that conveyed the hardships they have faced. Dr. McCullagh’s May 2020 letter persuasively demonstrates why the Claimant’s disability meets the test for severe and prolonged under the CPPFootnote 24. However, the Minister has already reached that conclusion and awarded the Claimant a disability pension. The law does not allow me to backdate a finding of disability beyond the 15-month period prior to the application being received unless the incapacity provision can be used. For the reasons outlined in this decision, I do not find that the Claimant can use the incapacity provision to receive a greater retroactive payment of his disability pension.
Conclusion
[25] The appeal is dismissed.