Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] I refuse the application for permission (leave) to appeal. These reasons explain why.

Overview

[2] The Claimant was in a car accident in November 2016. The Minister received her application for a disability pension under the Canada Pension Plan (CPP) on September 24, 2019. The Minister approved her application. The Claimant’s pension payments started effective October 1, 2018.

[3] The Claimant asked the Minister to reconsider. The Claimant argues that she should have been eligible for the disability pension starting back to when she first became disabled in the car accident in November 2016.

[4] The Minister did not change the decision. The Claimant can be found to be disabled no more than 15 months before the Minister receives the disability application (I’ll call that the “15-month rule”).^{Footnote 1} The Minister received the Claimant’s application in September 2019, so 15 months before that is June 1, 2018. Payments start four months later: October 1, 2018.^{Footnote 2}

[5] The Claimant appealed the Minister’s reconsideration decision to this Tribunal. The General Division dismissed the Claimant’s appeal. The General Division noted that there is an exception to the 15-month rule. A Claimant’s eligibility for the disability pension can go back (further than the 15-month rule would normally allow) to a period when Claimant can show that they were incapable of forming an intention to apply.^{Footnote 3} The General Division concluded that the Claimant was not able to show that her situation fit into this exception to the 15-month rule. The General Division applied the 15-month rule, and the Claimant’s payment date for her disability pension remained the same: October 1, 2018.

[6] The Claimant asks for permission to appeal the General Division’s decision.

[7] I must decide whether there is an arguable case that the General Division made an error under the Department of Employment and Social Development Act (DESDA).

[8] There is no arguable case that the General Division made an error. I refuse the Claimant permission to appeal the General Division’s decision.

Issue

[9] Is there an arguable case that the General Division made an error of fact about when the Claimant worked?

Analysis

Reviewing General Division decisions

[10] The Appeal Division does not give people a chance to re-argue their case in full at a new hearing. Instead, the Appeal Division reviews the General Division’s decision to decide whether it made an error calling for review. That review is based on the wording of the DESDA, which sets out the grounds of appeal.^{Footnote 4} The three reasons for an appeal arise when the General Division fails to provide a fair process, makes an error of law, or makes an error of fact.

[11] The DESDA says that it is an error when the General Division “bases its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.”^{Footnote 5} A mistake about the facts has to be important enough that it could affect the outcome of the decision (that is called a “material” fact). The error needs to result from ignoring evidence, willfully going against the evidence, or from reasoning that is not guided by steady judgement.^{Footnote 6}

[12] At the leave to appeal stage, a claimant must show that the appeal has a reasonable chance of success.^{Footnote 7} To meet this requirement, a claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 8}

Is there an arguable case that the General Division made an error of fact about when the Claimant worked?

[13] There is no arguable case that the General Division made an error of fact. The Claimant argues that the General Division made a mistake about when she was able to work after her accident. The Claimant does not have a reasonable chance of success in her appeal based on this argument.

[14] The General Division considered the fact that the Claimant had been working during part of the time that she argues she was incapable of forming the intention to apply for the disability pension. The General Division decision describes the Claimant’s work history like this:

The Claimant applied for work at [X] in 2017 and worked there on a regular basis until early 2018. This job ended because of a personal conflict with the owner. She then made an application for Employment Insurance benefits. She believes these were sickness benefits. Whether they were regular benefits or sickness benefits is not important. What is important is that the Claimant had the capacity to apply for this benefit in about March 2018. This shows me that she would have had the capacity to apply for the CPP disability benefit as well.^{Footnote 9}

[15] The Claimant testified that she returned to work after the accident and then stopped by about December 15, 2016 when she realized that she could not work due to disability. She testified that she thought it was about 8 months to a year before she started work at X. She testified that she thought she was at X for about 10 months until she started receiving EI benefits in about March 2018, and then was back to work at another restaurant, X, in June 2018.^{Footnote 10}

[16] The Claimant seems to argue that the General Division made an error of fact. The Claimant explains that she was off work for just about one year and that she became incapable of working 15 days after her car accident.^{Footnote 11} The Claimant also argues that the General Division ignored the fact that she eventually worked at X because she had no choice.

[17] In my view, the General Division did not make an error of fact about when the Claimant started working again after her car accident. The General Division noted that the car accident was in November 2016, and that she applied for work at X restaurant in 2017. The General Division did not discuss that the Claimant returned to work quickly after the accident and then had to stop just a few weeks later by about December 15, 2016. The General Division did not give the exact date when the Claimant returned to X.

[18] There is no arguable case for an error of fact. The General Division decision gives less precise information than the Claimant provided, but it does not misstate anything about the Claimant’s work. The decision acknowledges that she started in 2017, which is accurate.

[19] I do not see any arguable case for an error of law, either. The General Division applied the correct law: the 15-month rule. The General Division considered whether the Claimant met the exception for incapacity. The General Division reviewed both the medical evidence and several aspects of the Claimant’s activities. The General Division decided that she did not prove she was incapable of forming an intention to appeal anytime from November 2016 (when she was in the accident) to September 2019 (when she applied).

[20] I have reviewed the documents in the Tribunal file. I listened to the recording of the hearing at the General Division. I am satisfied that the General Division did not ignore or misunderstand the evidence.^{Footnote 12}

[21] It is clear that the Claimant has struggled with her judgement and concentration in the months and years after the car accident. She did not know about CPP disability pension specifically until she stopped working altogether and applied for Alberta Assured Income for the Severely Handicapped (AISH) in 2019. However, the General Division reviewed the Claimant’s work efforts, the fact that she applied for AISH, her involvement in legal matters, and the medical evidence. The General Division decided that the Claimant did not prove that she was incapable of forming an intention to apply for the disability benefit after the accident. The Claimant’s disability pension started as early as possible: 15 months before she applied. There is no arguable case for an error in the General Division’s decision.

[22] The Claimant is not happy with the way the disability pension rules have applied her case, and I understand that frustration. Her retroactive payment for the disability pension was not as much as she had hoped for, both because there was some repayment to AISH and because of the 15-month rule. The General Division had no choice but to apply the rules, and there is no arguable case for an error there that I can address.

Conclusion

[23] I refuse the application for permission to appeal.