Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] G. C. is the Claimant in this case. She filed an Application to the Appeal Division. She is asking for leave (or permission) to appeal. For the reasons described below, I have decided that her appeal has no reasonable chance of success. As a result, I am refusing permission to appeal.

Overview

[2] The Claimant applied for a Canada Pension Plan (CPP) disability pension in June 2011. The Minister of Employment and Social Development (Minister)^{Footnote 1} approved her application. The Minister agreed that the Claimant was disabled, as defined in the CPP.

[3] The Minister started investigating the Claimant’s file in 2017. The Minister started its investigation because of the Claimant’s earnings in 2015 and 2016. At the end of its investigation, the Minister concluded that the Claimant had not qualified for her disability pension since May 2015. As a result, the Minister asked the Claimant to pay back some benefits that she had already received.

[4] The Claimant appealed the Minister’s decision to the Tribunal’s General Division, but it dismissed her appeal. Briefly, the General Division concluded that the Claimant had returned to “substantially gainful” employment after April 2015.

[5] The General Division also decided that the Claimant was not working for a “benevolent employer”. Benevolent employers are ones who accommodate a person so much that the person’s ability to do one job cannot be considered as an ability to do any other job.

[6] The Claimant is now appealing the General Division decision to the Tribunal’s Appeal Division. She argues that the General Division made an important error about the facts of her case when it found that she was not working for a benevolent employment.

[7] Unfortunately for the Claimant, she based most of her arguments on new evidence that I cannot consider. I can only consider whether the General Division made an error based on the information it had in front of it. In the circumstances, the Claimant’s appeal has no reasonable chance of success. I have no choice, then, but to refuse permission to appeal.

Issue

[8] This decision focuses on one issue: Is there an arguable case that the General Division made an important error about the facts of the case when it found that the Claimant was not working for a benevolent employer?

Analysis

[9] Appeal Division files follow a two-step process. This appeal is at step one: permission to appeal.

[10] The legal test that the Claimant needs to meet at this step is a low one: Is there any arguable ground on which the appeal might succeed? I must refuse permission to appeal if the Claimant’s appeal has no reasonable chance of success.^{Footnote 2}

[11] To decide this question, I considered whether the General Division could have made a relevant error.^{Footnote 3} Briefly, the relevant errors are about whether the General Division:

• provided a fair process;
• decided all the questions that it had to decide, or decided questions that were beyond its powers to decide;
• misinterpreted or misapplied the law; and
• based its decision on an important error about the facts of the case.

The Claimant’s appeal has no reasonable chance of success.

[12] The Claimant’s main issue is about whether she worked for a benevolent employer. In other words, did the Claimant’s employer accommodate her so much that her earnings do not reflect an ability to regularly pursue a substantially gainful occupation anywhere else?^{Footnote 4}

[13] As part of its investigation, the Minister asked the Claimant whether her employer had made any special arrangements or accommodated her at work in any way.^{Footnote 5} The General Division also asked questions about ways the Claimant was accommodated at work.^{Footnote 6}

[14] The General Division took this evidence into account when deciding that the Claimant did not work for a benevolent employer.^{Footnote 7}

[15] The Claimant is now trying to challenge that conclusion. Compared to her co-workers, the Claimant now says that:^{Footnote 8}

• her duties were more limited and less demanding;
• she did less work and was less productive;
• her schedule was more flexible; and
• she was allowed to take more breaks.

[16] The trouble is that the Claimant is basing her arguments on new evidence that I cannot consider. Instead, my job focuses on finding errors that the General Division might have made based on the evidence it had in front of it. And based on the evidence available, it was clearly open to the General Division to find that the Claimant was not working for a benevolent employer.

[17] Aside from the Claimant’s arguments, I also reviewed the file and examined the General Division decision. The General Division reviewed the evidence and applied the correct legal principles.

[18] The evidence supports the General Division’s decision. In addition, my review of the file did not reveal relevant evidence that the General Division might have ignored or misinterpreted.^{Footnote 9} Finally, the Claimant has not argued that the General Division acted unfairly towards her.

Conclusion

[19] I sympathize with the Claimant’s circumstances. However, I have concluded that her appeal has no reasonable chance of success. I have no choice, then, but to refuse permission to appeal.