Canada Pension Plan (CPP) disability

Decision

[1] Leave to appeal is refused. I see no basis for this appeal to go forward.

Overview

[2] The Claimant, K. R., contracted polio when she was two years old. As an adult, she had a series of jobs in fast food restaurants but stopped working because of increasing fatigue and leg pain. She is now 51 years old.

[3] In 2005, the Claimant applied for a Canada Pension Plan (CPP) disability pension. The Minister’s agent, Service Canada, refused the application. The Claimant appealed that denial to the CPP Review Tribunal, the predecessor of this Tribunal’s General Division. The Review Tribunal held a hearing on August 15, 2007 and later dismissed the appeal.

[4] In 2008, the Claimant applied for the CPP disability pension for a second time. Again, the Minister refused the application and again, the Review Tribunal dismissed the appeal. In a decision dated August 4, 2011, the Review Tribunal found that the Claimant had not developed a severe and prolonged disability between August 15, 2007, the last time it considered her claim, and December 31, 2009, the date her CPP disability coverage period ended.

[5] In May 2021, the Claimant made a third application for the CPP disability pension. Once again, the Minister refused the application and, once again, the General Division dismissed the appeal. The General Division found that the Claimant had raised exactly the same issues that the Review Tribunal had considered 10 years earlier. The General Division said that it was barred from deciding something that had already been decided.

[6] The Claimant is now asking the Appeal Division for permission to appeal. She alleges that the General Division committed a jurisdictional error by deciding her appeal without considering her disability.

Issue

[7] There are four grounds of appeal to the Appeal Division. A claimant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to exercise those powers;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 1}

[8] An appeal can proceed only if the Appeal Division first grants leave, or permission, to appeal.^{Footnote 2} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 3} This is a fairly easy test to meet, and it means that a claimant must present at least one arguable case.^{Footnote 4}

[9] The issue in this appeal is whether there is an arguable case that the General Division misapplied the rule against deciding something that has already been decided.

Analysis

[10] I have reviewed the General Division’s decision, as well as the law and the evidence it used to reach that decision. I have concluded that the Claimant does not have an arguable case.

[11] The Claimant failed in 2021 because the General Division decided that she was making essentially the same case that she made in 2011. For the following reasons, I don’t see an arguable case that the General Division misapplied the law when it came to this conclusion.

Res judicata prevents cases from being heard over and over again

[12] As the General Division correctly noted, a legal doctrine called res judicata prevents decision-makers from reconsidering matters that they have already decided. A case called Danyluk^{Footnote 5} requires decision-makers to consider three criteria in determining whether res judicata applies:

• Did the prior proceeding involve the same parties as the current proceeding?
• Did it address the same issues?
• Did it lead to a final decision?

[13] In Danyluk, the Supreme Court of Canada held that there are sound public policy reasons for res judicata:

An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.^{Footnote 6}

[14] The Federal Court has stated that res judicata specifically applies to decisions of the Social Security Tribunal.^{Footnote 7} The Court has also found that Parliament intended this Tribunal’s General Division to be the Review Tribunal’s successor and replacement.^{Footnote 8}

The Claimant’s second application overlaps with his first in all significant respects

[15] The General Division decided that res judicata barred it from considering the Claimant’s appeal for the following reasons:

• The parties in her 2011 and 2021 appeals were the same—the Claimant and the Minister;
• The key issue in both appeals was the same – whether the Claimant’s polio-related symptoms led to the onset of a severe and prolonged disability between August 15, 2007^{Footnote 9} and December 31, 2009; and
• The Review Tribunal’s decision of August 4, 2011 was final because the Claimant did not exercise her right to appeal it within the prescribed time.

[16] The medical file supporting the Claimant’s third appeal contains the same documents that supported her 2005 and 2008 applications. The Claimant has provided additional medical reports for this appeal, but they either

• refer to period before December 31, 2009 and contain no new information; or
• refer to the period after December 31, 2009 and therefore contain irrelevant information.

[17] In neither instance does the Claimant’s most recent disability claim raise any issues that have not already been adjudicated. I don’t see an arguable case that the General Division made an error of law or fact in arriving at the same conclusion.

The General Division appropriately exercised its discretion in deciding not to revisit the Claimant’s case

[18] Even if the three criteria referred to above are met, Danyluk permits decision-makers some discretion in whether to apply res judicata. However, that discretion must be exercised by keeping in mind factors such as the wording and purpose of the legislation establishing the administrative power, the circumstances that led to the prior proceeding and, most importantly, the potential for injustice.

[19] The General Division considered these factors but could find no reason to waive res judicata and revisit its prior decision. In particular, the General Division found that the Claimant had been previously given an adequate opportunity to provide evidence from the relevant period. Above all, the General Division saw no potential for injustice by declining to consider the Claimant’s second appeal:

An injustice or issue of natural justice has not been raised nor is there one apparent with respect to this matter. The purposes and stakes of the two proceedings are the same. The doctrine of res judicata exists to prevent exactly such attempts to re-litigate matters that have already been finally decided.^{Footnote 10}

[20] In my view, the General Division exercised its discretion while making a good-faith attempt to take the Danyluk factors into account. I saw nothing to indicate that, in doing so, it ignored relevant factors or considered irrelevant ones. Nor did I see any sign that it exhibited bias or otherwise acted improperly.^{Footnote 11}

Conclusion

[21] The Claimant has not identified any grounds of appeal that would have a reasonable chance of success on appeal. The doctrine of res judicata prevented the General Division from considering her 2021 appeal on facts and issues that were identical to her 2011 appeal.

[22] Thus, permission to appeal is refused.