Canada Pension Plan (CPP) disability

Decision

[1] I am refusing leave (permission) to appeal. The appeal will not go ahead. These reasons explain why.

Overview

[2] S. M. (Claimant) applied for a disability pension in June 2019, and his application was approved for payment. The Canada Pension Plan (CPP) has a rule that the earliest the disability pension can be approved is 15 months before the day the claimant applied (15-month rule).^{Footnote 1}

[3] In this case, that means the Claimant’s approval started in March 2018, 15 months before he applied in June 2019. Payments begin four months later, in July 2018.^{Footnote 2}

[4] There is an exception to the 15-month rule. A claimant can be approved for a pension earlier than 15 months before applying if the claimant can show that they were unable to form or express an intention to apply for the disability pension any sooner than when they actually applied (incapacity rule).^{Footnote 3}

[5] The Claimant asked the Minister to reconsider the decision. He wanted the pension to start earlier because he had been disabled since 2008. The Minister refused his request and did not change the date his pension started. The Claimant appealed to this Tribunal.

[6] The General Division applied the 15-month rule and decided that the Claimant had received the disability pension starting on the earliest date possible according to the CPP.

[7] The General Division also decided that the incapacity rule did not help the Claimant because he had failed to prove that he was unable to form or express an intention to apply any sooner. The General Division dismissed the appeal.

[8] The Claimant asks for leave to appeal the General Division’s decision.

[9] I must decide whether it is arguable that the General Division made an error under the Department of Employment and Social Development Act (Act) that would justify granting the Claimant leave to appeal.

[10] The Claimant has not raised an argument that the General Division made an error. I am not granting leave to appeal, so the appeal will not go ahead.

Issues

[11] The issues in this case are as follows:

1. Is it arguable that the General Division failed to provide the Claimant with a fair process by going ahead with the appeal even though the Minister never provided evidence or argument about the wrong advice the Claimant says the Minister gave him?
2. Is it arguable that the General Division made an error of fact about the Claimant’s depression and its impact on him when it decided that the Claimant was not incapacitated?

Analysis

Reviewing General Division decisions

[12] The Appeal Division does not provide an opportunity for the parties to re argue their case in full. Instead, I reviewed the Claimant’s arguments and the General Division’s decision to decide whether the General Division may have made any errors.

[13] That review is based on the wording of the Act, which sets out the “grounds of appeal.” The grounds of appeal are the reasons for the appeal. To grant leave to appeal, I must find that it is arguable that the General Division made at least one of the following errors:

• It acted unfairly.
• It failed to decide an issue that it should have, or decided an issue that it should not have.
• It based its decision on an important error regarding the facts in the file.
• It misinterpreted or misapplied the law.^{Footnote 4}

[14] At the leave to appeal stage, a claimant must show that the appeal has a reasonable chance of success.^{Footnote 5} To do this, a claimant needs to show only that there is some arguable ground on which the appeal might succeed.^{Footnote 6}

No argument that the General Division failed to provide a fair process

[15] The General Division provided a fair process to the Claimant. The General Division did not need to take any additional steps to get information from the Minister about the Claimant’s allegation that the Minister gave him wrong advice. The issue of wrong advice was important to the Claimant, but the General Division does not have the power to address that issue.^{Footnote 7}

[16] The Claimant notes that the Minister has never responded to the information he has provided about receiving wrong advice from it. That advice influenced his decision about when to apply for the disability pension. The Claimant feels that this wrong advice is a central part of his case and that the General Division did not have enough information about it. The Claimant thinks that the General Division should have addressed this problem for him as part of the appeal.

[17] The Claimant argues that this amounts to a fair process issue because he did not have the opportunity for a full hearing on the issues that mattered in his case.

[18] He also says that it is an error of jurisdiction because the General Division should have considered and done something about the wrong advice.

[19] In my view, the General Division did not make an error relating to fair process. The Minister did not attend the teleconference that the General Division scheduled. The General Division made no effort to get more information from the parties about the wrong advice allegation. However, this did not make the process unfair.

[20] What fairness requires will depend on the context.^{Footnote 8} To have a fair process, people need a full and fair opportunity to make arguments on every fact or factor relevant to the case.^{Footnote 9}

[21] I understand why wrong advice from the Minister would help explain why the Claimant applied for his disability pension when he did. However, the question the General Division had to answer was whether the Claimant’s disability pension could start any earlier than it had. The only exception to the 15-month rule that the General Division could consider applying was the incapacity rule.

[22] So, while the information about possibly receiving wrong advice could help explain why the Claimant did not apply earlier, it does not provide a path for the Claimant to receive his pension any earlier. It is not relevant to any question that the General Division has the power to address.

No argument that the General Division ignored the Claimant’s depression

[23] The General Division did not make an error by ignoring the Claimant’s depression when deciding whether his application would benefit from the incapacity rule.

[24] If the General Division makes its decision without considering the record, that can be an error of fact.^{Footnote 10} The General Division does not have to refer to every piece of evidence in its decision.^{Footnote 11} I presume the General Division considered all of the evidence. However, the Claimant can overcome that presumption by showing that the evidence the General Division did not mention in its reasons was important enough that the General Division needed to discuss it.^{Footnote 12}

[25] In other words, I can infer an error of fact when the General Division fails to mention some relevant evidence in its reasons. The more important the unmentioned evidence, the more it suggests that the General Division actually ignored that evidence.^{Footnote 13}

[26] The General Division explained that “incapacity” is considered in its ordinary meaning and is decided based on medical evidence and the person’s activities.^{Footnote 14}

[27] The Claimant’s evidence was consistent with the idea that he was generally able to take care of himself. He did the following:

• drove
• paid his bills
• lived independently
• cooked his own meals
• did his own grocery shopping

[28] Although the Claimant’s diagnoses are relevant, the Claimant did not provide evidence of depression that would lead the General Division to conclude that he was unable to form or express an intention to apply any earlier.

[29] In my view, the General Division did not make an error of fact by ignoring evidence about the Claimant’s depression. The General Division briefly explained how it decided that the Claimant was not incapable when it comes to applying for the disability pension. While the decision did not mention the Claimant’s depression by name, it focused on:

• the fact that the Claimant did not provide medical evidence that stated he was incapable
• the fact that the Claimant’s activities did not suggest that he was incapable either

[30] The fact is that the Claimant’s diagnosis was not important enough in this particular case that the General Division needed to name it in the decision. I am satisfied that the General Division did not ignore the Claimant’s diagnosis—it just focused on the most important aspects of the test for incapacity: medical evidence about incapacity specifically and information about the Claimant’s activities that suggest he could not take care of himself. The General Division did not ignore the Claimant’s depression.

[31] I have reviewed the documents in this case, and I am satisfied that the General Division did not ignore or misunderstand the evidence.

[32] In addition to the reasons provided by the General Division, I note that the Claimant did apply for a disability pension earlier, in February 2013. The Minister denied the application, and the Claimant asked it to reconsider. The Minister denied that request because it was late. That application is not under appeal, but it does show that the Claimant was able to form and express the intention to apply in 2013, because he did.

[33] A final note. The Claimant says that he received wrong advice from the Minister and that this delayed his application for disability benefits. If the Minister is satisfied that a person received wrong advice and that they have been denied part of a disability benefit as a result, the Minister can take action it considers appropriate to put the person back in the position they would have been in if the wrong advice had never happened.^{Footnote 15}

[34] I cannot order the Minister to provide the Claimant with an answer to his request that the Minister investigate and fix the problem he describes. However, if the Minister were to contact the Claimant outside of the Tribunal process to provide him with a response to his allegation, this would, of course, be helpful to the Claimant. He has described to the Tribunal in this appeal his frustration about not getting all the answers he needs.

Conclusion

[35] I am refusing leave to appeal. This means that the appeal will not go ahead.