Canada Pension Plan (CPP) disability

Introduction

[1] This application involves a request to rescind or amend a decision of the General Division of the Social Security Tribunal (Tribunal).

[2] On February 20, 2019, the General Division determined that the Claimant did not meet the incapacity provisions of the CPP and that a change in the date of onset of her CPP disability benefits was not warranted. The Applicant filed an application with the General Division to rescind or amend that decision on January 15, 2020 in accordance with section 66 of the Department of Employment and Social Development Act (the “DESD Act”) (“Application to Rescind or Amend”).

[3] The hearing of this application was by written questions and answers for the following reasons:

• The issues under appeal are not complex.
• There are gaps in the information in the file and/or a need for clarification.
• Credibility is not a prevailing issue.
• This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Issues

[4] The Tribunal must decide whether the application to rescind or amend was made more than one year after the day the General Division decision was communicated to the Applicant.

[5] The Tribunal must decide whether 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.

[6] If the Tribunal finds that there is a new material fact within the meaning of paragraph 66(1)(b) of the DESD Act, the Tribunal must then decide whether the new facts support a determination that the Applicant’s appeal had a reasonable chance of success.

Background and history of proceedings

[7] The Minister received the Applicant’s application for a CPP disability pension on February 8, 2017. The Minister approved this application with a date of onset of November 2015, which is 15 months before the date of the application. The Minister denied the Applicant’s request for reconsideration of the date of onset. The Applicant appealed the reconsideration decision to the Social Security Tribunal.

[8] The Social Security Tribunal – General Division summarily dismissed her appeal on the basis that the Applicant did not meet the incapacity provisions as set out in the CPP and found that a change in the date of onset of her CPP disability pension was not warranted. The Applicant requested leave to appeal to the Social Security Tribunal – Appeal Division. That appeal is being held in abeyance pending a decision on her Application to Rescind or Amend.

The law

[9] Subsection 66(1) of the DESD Act reads as follows:

1. 66. (1) The Tribunal may rescind or amend a decision given by it in respect of any particular application if:
   1. (a) in the case of a decision relating to the Employment Insurance Act, new facts are presented to the Tribunal or the Tribunal is satisfied that the decision was made without knowledge of, or was based on a mistake as to, some material fact; or
   2. (b) in any other case, a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.
2. (2) An application to rescind or amend a decision must be made within one year after the day on which a decision is communicated to the appellant.
3. (3) Each person who is the subject of a decision may make only one application to rescind or amend that decision.
4. (4) A decision is rescinded or amended by the same Division that made it.

Document(s) submitted as new facts

[10] The Applicant submitted the following documents in support of the Application to Rescind or Amend:

• Declaration of Incapacity^{Footnote 1} completed on July 29, 2019 by Dr. Sabrina Tung Barnett.
• Report from Dr. Barnett dated May 14, 2019^{Footnote 2}.
• Report from Dr. Barnett dated July 31, 2019^{Footnote 3}.
• Report from Dr. Nazir Ahmad Malik, psychiatrist, dated October 7, 2018^{Footnote 4}.
• Report from Dr. J. Davie, psychiatrist, dated May 1, 2018^{Footnote 5}.
• Handwritten progress notes dated May 8, 2018^{Footnote 6} and May 15, 2018^{Footnote 7}.

Submissions

[11] The Applicant’s submissions:

1. Dr. Barnett made an error in a medical report. The Applicant submitted another Declaration of Incapacity from Dr. Barnett. She also submitted documents to support Dr. Barnett’s corrected medical report.
2. The error on Dr. Barnett’s report was inadvertently missed.
3. This information is crucial to the success of her appeal because it states that she was unable to form or express the intention to make an application due to PTSD.

[12] The Respondent’s submissions:

1. The Claimant had a copy of Dr. Barnett`s original report dated April 20, 2018 prior to the SST hearing. The information in that report was available for her review as it was part of the documentary evidence provided to her by the SST. In a letter dated February 4, 2017, the Tribunal clearly identified that one of the reasons it was considering summarily dismissing her appeal was that “your family doctor declared that you are not incapacitated.” An applicant who has personal knowledge of the existence of new evidence or of its contents at the time of the original hearing cannot successfully argue that it was not discoverable with the exercise of reasonable diligence.
2. The Applicant did not provide an explanation for each of the remaining documents as to why she believed the evidence was not discoverable before February 2019.
3. The evidence filed in support of the Applicant’s application to rescind or amend does not establish new facts within the meaning of paragraph 66(1)(b) of the DESDA and therefore the Tribunal cannot reopen the final SST decision.
4. In the event that the Tribunal determines that there are new facts, the new facts do not support a determination that the Applicant was incapable of forming or expressing an intention to make an application for CPP disability benefits and therefore does not meet the incapacity provisions as defined within the meaning of the CPP.

Analysis

[13] The application to rescind or amend was made less than one year after the day the General Division decision was communicated to the Claimant. The General Division decision is dated February 20, 2019. The Application to Rescind or Amend was made by the Applicant on January 15, 2020, which is less than one year after the date of the General Division decision.

Application to rescind or amend – Discoverability and materiality

[14] The Applicant 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.

[15] Before paragraph 66(1)(b) of the DESD Act came into force in April 2013, the Federal Court of Appeal (FCA) set out a test for evidence to be admissible as a “new fact” in relation to former subsection 84(2) of the CPP:

1. It must establish a fact (usually a medical condition in the context of the CPP) 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).
   
   (Canada (Attorney General) v. Macrae, 2008 FCA 82)

[16] Further, in Carepa v. Canada (Minister of Social Development), 2006 FC 1319, the Federal Court decided that an applicant must provide evidence of what steps were taken to find the new evidence, and why it could not have been produced at the time of the hearing.

[17] First, I will consider the documents that are dated prior to February 2019 that were submitted by the Claimant with her Application to Rescind or Amend. These documents include the following:

• Report from Dr. Malik dated October 7, 2018^{Footnote 8}, which noted that she was seen on referral from Dr. Barnett. Her symptoms are consistent with mood/anxiety disorder secondary to situational factors, history of post-traumatic stress disorder.
• Report from Dr. Davie dated May 1, 2018^{Footnote 9}, which lists her diagnoses as gambling disorder, PTSD, generalized anxiety disorder, alcohol use disorder (mild) and poor social supports.
• Handwritten progress notes dated May 8, 2018^{Footnote 10} and May 15, 2018^{Footnote 11} were also included.

[18] I note that these documents were in existence as of February 2019. However, they did not form part of the original hearing file. The Claimant did not explain what steps, if any, she took to obtain these documents prior to February 2019. She has not explained why this evidence could not be provided to the Tribunal prior to February 2019. I therefore find that she has not shown that these facts were not discoverable before the original hearing by the exercise of due diligence.

[19] In addition, the Claimant submitted three documents that are dated after February 2019. These include the following:

• Declaration of Incapacity^{Footnote 12} completed on July 29, 2019 by Dr. Sabrina Tung Barnett, which notes that her condition makes her incapable of forming or expressing the intention to make an application. The date the incapacity began was noted to be May 12, 2004 and is ongoing. Her conditions were noted to be PTSD, depression and anxiety.
• Report from Dr. Barnett dated May 14, 2019^{Footnote 13}, which states that the Applicant has been her patient since January 2017. The Applicant was shot in the face during a home invasion on May 12, 2004 and has suffered from PTSD, depression and anxiety. Her symptoms have been debilitating. To the knowledge of Dr. Barnett, it is not until recently (in the last year) that the Applicant has been able to complete forms to try to receive some sort of compensation.
• Report from Dr. Barnett dated July 31, 2019^{Footnote 14}, requesting that her previous incapacity declaration be disregarded as she misunderstood the question.

[20] The Applicant submits that Dr. Barnett made an error when completing the original Declaration of Incapacity dated April 20, 2018 and that this error was inadvertently missed as of February 2019. She therefore submitted an updated Declaration of Incapacity along with additional documents to support Dr. Barnett’s corrected opinion. She also submits that the error on Dr. Barnett’s report dated April 20, 2018 was inadvertently missed.

[21] I note, however, that the Declaration of Incapacity dated April 20, 2018 was in existence as of February 2019 and formed part of the hearing file.  As the Minister points out in its submissions, the Applicant had a copy of Dr. Barnett’s report dated April 20, 2018 prior to the SST hearing as this information had been provided to her as part of the documentary evidence for her SST appeal. The Respondent also pointed out that the SST clearly identified that one of the reasons it was considering summarily dismissing her appeal was that her family doctor declared that she was not incapacitated in its letter dated February 4, 2017. I agree with the Respondent that an applicant who has personal knowledge of the existence of new evidence or of its contents at the time of the original hearing cannot successfully argue that it was not discoverable with the exercise of reasonable diligence.

[22] Furthermore, the Claimant did not explain what steps, if any, she took to find the new evidence and why it could not have been produced as of February 2019. The Declaration of Incapacity dated April 20, 2018 formed part of the original hearing file and was available to the Applicant. Dr. Barnett’s mistake was discoverable simply by reading the document. I therefore find that the Claimant has not shown that these facts were not discoverable before February 2019 by the exercise of due diligence.

[23] Since I have found that these documents do not meet the discoverability criterion, I will not consider whether they have met the materiality criterion.

[24] The Tribunal finds that the evidence does not establish a new material fact within the meaning of paragraph 66(1)(b) of the DESD Act.

Conclusion

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