Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The application for leave to appeal is refused.

Overview

[2] L. K. (Claimant) has had heart failure, non-valvular atrial fibrillation, pulmonary embolism, congenital right eye abnormality, osteoarthritis, depression, anxiety, and ulcerative colitis (among other conditions). He applied for a disability pension under the Canada Pension Plan (CPP) in November 2018. The Minister denied his application initially and on reconsideration. The Claimant appealed to this Tribunal.

[3] The General Division dismissed the Claimant’s appeal on September 4, 2019. The General Division decided that:

• the Claimant could not cancel his retirement pension in favour of the disability pension because he had already been receiving the retirement pension for more than 15 months when he applied for the disability pension;^{Footnote 1}
• the Claimant did not show that his medical condition meant that he was incapable of applying for the disability pension before November 2018;^{Footnote 2} and
• the Claimant is also not eligible for the post-retirement disability benefit which came into effect in January 2019 because that benefit is not retroactive.^{Footnote 3}

[4] 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) that would justify granting the Claimant permission (leave) to appeal. 

[5] I find that the Claimant does not have an arguable case for an error by the General Division. The application for leave to appeal is refused.

Preliminary matters

New evidence

[6] In his application for leave to appeal, the Claimant attached two new medical letters dated September 23, 2019.^{Footnote 4} He also attached patient discharge instructions from a hospital dated October 2019.^{Footnote 5}

[7] Generally speaking, the Appeal Division does not consider new evidence on appeal. There are some exceptions to that rule, but none of them apply here.^{Footnote 6}

[8] I will not consider the new evidence that the Claimant provided with his application for leave to appeal.

Request for settlement conference

[9] The Claimant asked the Appeal Division to hold a meeting to try to help him to settle his case with the Minister.^{Footnote 7} I am not required to schedule a settlement conference when a party requests it. The decision about whether to hold a settlement conference for the purpose of resolving the appeal or the application is discretionary.^{Footnote 8}

[10] I have decided not to hold a settlement conference in this case. The matter has no reasonable prospect of success on appeal, so a settlement conference is not the most fair, just, or efficient way forward.^{Footnote 9}

Issue

[11] Is there an arguable case that the General Division made an error under the DESDA that would justify granting the Claimant leave to appeal?

Analysis

Reviewing General Division decisions

[12] 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 there is an error. The Appeal Division’s review is based on the wording of the DESDA, which sets out the reasons that form the basis for any appeal.^{Footnote 10} General Division decisions can be reviewed by the Appeal Division when the General Division fails to provide a fair process, or when the General Division has made an error of fact, or when the General Division has made an error of law.

[13] The DESDA says that it is an error when the General Division fails to observe the principles of natural justice, or acts beyond or refuses to exercise its jurisdiction.^{Footnote 11} The principles of natural justice focus on the fairness of the process.  The Supreme Court of Canada set out a list of factors to consider when deciding whether a process is fair.^{Footnote 12} At the heart of this question about fairness is whether, considering all the circumstances, the people impacted by the process had a meaningful opportunity to present their case fully and fairly.

[14] At the leave to appeal stage, a claimant must show that the appeal has a reasonable chance of success.^{Footnote 13} To meet this requirement, a claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 14} That is a low test to meet.

Is there an arguable case for an error?

[15] The Claimant does not have an arguable case for an error by the General Division. The Claimant has not raised an arguable case that the General Division failed to provide him with a fair process by refusing to accept hospital records from him. The Claimant has not raised an arguable case for an error of fact, either.

[16] The General Division decision acknowledges that the Claimant brought a large paper file to the hearing that he referred to as his hospital file. The decision states that

[h]e wanted to impress upon me that his condition was serious and had been going on for years, but there were no particular documents he wanted me to see. I did not admit this evidence because I did not think it was necessary to get precise details of the Claimant’s condition. I accept that he has had serious health concerns for several years. The problem is, as sick as he was, he did not meet the CPP’s test for incapacity at any time up to and including November 2018.^{Footnote 15}

[17] The Claimant argues that the General Division made an error. It seems as though he thinks the General Division did not provide him with a fair process. He took a picture of the stack of his hospital files for the period between 2016 and 2019 and provided it to me on the Appeal Division. He says that the took those documents to his hearing at the General Division, but the General Division member refused to make a copy of the documents or to take them. The Claimant cannot afford to make a copy and send them to the Tribunal. As a result, the documents were not considered in his case.^{Footnote 16}

[18] During the hearing, there is a discussion between the General Division member and the Claimant about the medical records he brought with him to the hearing, which he referred to as his “hospital file”.^{Footnote 17} The General Division member stated, “I’m not going to encourage you to send that in” and the Claimant agreed, stating “I don’t think it’s worth it.” The Claimant and the General Division member went on to discuss the medical evidence that the Claimant relied on to argue that he was incapacitated. That evidence about incapacity was in the General Division’s file.

[19] In my view, the Claimant has not raised an arguable case for an error by the General Division. There is no arguable case that the General Division failed to provide a fair process to the Claimant by failing to have his hospital file entered into evidence. The Claimant was not asking for the file to be entered into evidence: “I don’t think it’s worth it.”^{Footnote 18}

[20] Failing to admit the hospital file into evidence cannot really be argued to have impacted the Claimant’s ability to present evidence and make argument on every issue before the Tribunal.^{Footnote 19} The Claimant is not relying on any part of the hospital file that he believes the Tribunal needed to review before deciding whether he lacked capacity to make the application for disability benefits. Also, medical evidence is not relevant to the other issues in the case about the post-retirement disability benefit or about the gap in time between when he started receiving his retirement pension and when he applied for the disability pension.

[21] It seems that the Claimant alleges errors of fact in the General Division decision,^{Footnote 20} but it is not clear what those errors are specifically. The Appeal Division requested more information from the Claimant to complete his appeal. The Claimant did not provide any more information that would help the Appeal Division to decide whether there is an arguable case for an error of law, an error of fact, or failure to provide fair process.

[22] I am satisfied that that the General Division did not ignore or misunderstand the evidence in this case. The General Division weighed all of the evidence (including the declarations of incapacity in the file) and decided that the Claimant was not incapable of forming the intention to apply sooner. The Appeal Division is not reviewing the way the General Division applied the facts to the law.^{Footnote 21}

[23] The Claimant has found that the Tribunal’s mandate and processes have been destructive, unfair and unhelpful. He has explained that the process of applying for and then appealing to try to get disability benefits under the CPP has taken a real toll on his health. This decision is not the outcome that the Claimant wanted to achieve in this case given the effort he has put in. His file shows that he has talked before about the need for changes to the laws about the retirement pension and the disability pension from CPP that need to happen at a political level. That may still be something he decides to pursue. He does not believe that so many of what he calls legal technicalities should get in the way of accessing the benefits that he needs.

[24] However, I am required to follow the law when deciding whether to give permission to appeal. The Claimant has not raised an arguable case for an error by the General Division. The Claimant has not raised an arguable case that:

• he was denied a fair process by the General Division; or that
• the General Division made an error of fact.

An arguable case is required in order for me to grant permission (leave) to appeal. The appeal has no reasonable chance of success.

Conclusion

[25] The application for leave to appeal is refused.