Canada Pension Plan (CPP) disability

Decision

[1] Leave (permission) to appeal is refused because the appeal does not have a reasonable chance of success. The appeal will not be going ahead.

Overview

[2] The Applicant, B. A. (Claimant), is appealing the General Division decision. The General Division found that the Claimant filed his appeal with the Social Security Tribunal more than a year after the Respondent, the Minister of Employment and Social Development (Minister) had issued its reconsideration decision. As a result, the General Division found the Claimant was too late to get an extension of time to file his appeal.

[3] The Claimant argues that the General Division based its decision on an important factual error.

[4] I have to decide whether the appeal has a reasonable chance of success.^{Footnote 1} Having a reasonable chance of success is the same thing as having an arguable case.^{Footnote 2}

Issue

[5] Is there an arguable case that the General Division based its decision on any important factual errors?

Analysis

[6] The Appeal Division must be satisfied that the appeal has a reasonable chance of success before it gives an applicant permission to go ahead with their appeal. A reasonable chance of success exists if there is a certain type of error.^{Footnote 3} These errors are about whether the General Division:

1. (a) Failed to make sure that the process was fair;
2. (b) Failed to decide an issue that it should have decided, or decided an issue that it should not have decided;
3. (c) Made an error of law; or
4. (d) Based its decision on an important factual error. (The error has to be perverse, capricious, or without regard for the evidence before it.)

[7] Once an applicant gets permission from the Appeal Division, they move to the actual appeal. There, the Appeal Division decides whether the General Division made an error and, if so, decides how to fix that error.

Is there an arguable case that the General Division based its decision on an important error of fact?

[8] The Claimant argues that the General Division based its decision on an important error of fact, but he does not say what that error was. In other words, he does not challenge any particular findings that the General Division made.

[9] The General Division made the following findings that were relevant to its conclusions:

• The Minister issued its final decision—the reconsideration decision—on March 3, 2020.
• The Claimant filed a Notice of Appeal with the General Division. As he did not use the forms provided by the Tribunal, he did not say when he received the Minister’s reconsideration decision.
• The General Division found that the Minister communicated its reconsideration decision to the Claimant by March 17, 2020, ten business days after issuing it.
• The Tribunal received the Claimant’s Notice of Appeal on June 7, 2021. This was more than a year after the Minister communicated its reconsideration decision to him, assuming that he had received it by March 17, 2020.
• The General Division wrote to the Claimant on August 6, 2021. The General Division asked the Claimant to explain why he did not file his appeal on time.
• The Claimant responded that his health condition continued to decline and that he was in palliative care. He had some memory loss and experienced disorientation. He lost his brother earlier in the year. The General Division did not find anything in the Claimant’s explanation that allowed it to “bypass the rule.”^{Footnote 4}

[10] The General Division’s findings are consistent with the evidence before it.

[11] The Claimant had applied for a Canada Pension Plan disability pension. The Minister determined that the Claimant did not have a severe and prolonged disability. The Claimant asked the Minister to reconsider its decision. The Minister replied to the Claimant with its reconsideration decision, by letter dated March 3, 2020.^{Footnote 5}

[12] The Claimant appealed the Minister’s reconsideration decision. The Tribunal received the Claimant’s Notice of Appeal on June 7, 2021.^{Footnote 6}

[13] As the General Division did not have any evidence from the Claimant indicating when he received the Minister’s reconsideration decision, the General Division calculated what it determined to be a reasonable timeframe.

[14] The General Division assumed that the Minister mailed its reconsideration decision to the Claimant by regular mail on the date that appeared on it. The General Division stated that it referred to Canada Post mail delivery standards. It found that the Claimant must have received the Minister’s reconsideration decision within 10 business days after the Minister mailed its letter. The General Division calculated that the Claimant received the reconsideration decision by March 17, 2020. There was no evidence at the General Division to suggest that the Claimant received the Minister’s decision after March 17, 2020.

[15] When the Tribunal wrote to the Claimant on August 6, 2021, it could have asked the Claimant when he might have received the Minister’s reconsideration decision. Even so, the General Division stated that it calculated the appeal to be over one-year late. It referred to the date on the Minister’s reconsideration decision, and the date the Claimant told the Tribunal he wanted to appeal the reconsideration decision.

[16] The Tribunal gave the Claimant until September 10, 2021, to explain why he was late in filing his appeal. The Tribunal also wrote, “[The Claimant] should know that the Tribunal can only consider varying its rules if special circumstances exist.”^{Footnote 7}

[17] The Claimant responded, but he did not address the Tribunal’s question about why he was late in bringing his appeal. The Claimant could have disagreed over when the Minister had communicated its reconsideration decision to him. He did not dispute that he was over one year late with bringing his appeal.

[18] The General Division did not misconstrue or mischaracterize the evidence. The General Division also did not base its decision on any findings of fact that it made in a perverse or capricious manner or without regard for the material before it. Its findings are consistent with the evidence before it. The Claimant does not have an arguable case that the General Division based its decision on an important factual error.

Is there an arguable case that the General Division made any legal errors?

[19] I will also review the General Division decision to ensure that the member did not make any legal errors.

[20] A claimant has to file their appeal to the General Division within 90 days after the day on which the Minister’s decision is communicated to them.^{Footnote 8} The General Division can give an extension of time to a claimant. But, the appeal must be filed within one year.

[21] The General Division suggested that there could be special circumstances that would have allowed it to extend the time for filing an appeal, even if a claimant filed it more than a year late. But, the law says that if a claimant tries to file their appeal more than one year after the day on which they received the Minister’s decision, the General Division is powerless to do anything.

[22] The General Division does not have any authority to grant an extension of time if the claimant filed an appeal after more than one year from when they received the Minister’s decision.^{Footnote 9} The law is clear that no special circumstances exist that lets the General Division extend the time for filing. The law does not permit any discretion to be applied.

[23] The General Division made a legal error by suggesting that special circumstances could allow it to bypass the one-year deadline to file appeals. Even so, this error does not assist the Claimant.

[24] The Claimant does not have an arguable case that the General Division made any legal errors.

The Claimant’s option

[25] As the General Division could not give the Claimant an extension of time to file his appeal, there was no basis for it to decide whether the Claimant had a severe and prolonged disability.

[26] The General Division noted that the Claimant can still reapply for a disability pension. He could file a new application. To qualify for a disability pension, the General Division found that the Claimant would have to prove that he had a severe and prolonged disability by no later than December 31, 1997.

Conclusion

[27] The Claimant does not have an arguable case that the General Division either made a legal error or based its decision on an important factual error. Therefore, permission to appeal is refused. This means that the appeal will not be going ahead. This ends the Claimant’s appeal at the Appeal Division.