Canada Pension Plan (CPP) disability

Decision

[1] The appeal is dismissed.

[2] The Appellant`s eligibility for a Canada Pension Plan (CPP) disability pension has already been decided by the Pension Appeals Board (PAB)^{Footnote 1} on June 9, 2004^{Footnote 2}. This decision explains why I am dismissing the appeal.

Overview

[3] The Appellant applied for a CPP disability pension five times.

[4] On December 10, 2001^{Footnote 3},the Appellant submitted his first CPP disability application. The Appellant was34 years old. He worked as awelder. He stated that he was unable to work since September 2001 because of back pain from a work-related injury.

[5] For the Appellant to succeed, he had to prove that it was more likely than not that he had a disability that was severe and prolonged by December 31, 2003. This date was based on his contributions to the CPP.^{Footnote 4}

[6] The CPP defines “severe” and “prolonged”. A disability is severe if it makes a person incapable regularly of pursuing any substantially gainful occupation.^{Footnote 5} It is prolonged if it is likely to be long continued and of indefinite duration.^{Footnote 6}

[7] The Minister of Employment and Social Development (Minister)^{Footnote 7} denied the Appellant’s first application. The Appellant appealed the Minister’s decision to the Review Tribunal (RT).^{Footnote 8} After holding a hearing, the RT dismissed the Appellant`s appeal on April 2,2003. The Appellant then appealed that decision to the PAB. The PAB also dismissed the Appellant`s appeal on June 9, 2004 after holding a hearing.

[8] The Appellant submitted a new facts application to the PAB and requested that the June 9, 2004 decision be reopened. In a decision letter dated October 1, 2004, the PAB dismissed the application.^{Footnote 9}

[9] The Appellant submitted his second CPP disability application on March 17, 2006. The RT dismissed the application on the basis that the PAB’s decision of June 9, 2004 was final.^{Footnote 10}

[10] The Appellant then submitted a second new facts application to the PAB in November 2008, again requesting that the June 9, 2004 decision be reopened. In a decision dated May 7, 2009, the PAB dismissed the application.^{Footnote 11}

[11] In August 2009, the Appellant submitted a third new facts application asking that his PAB appeal be reopened. The PAB dismissed his application on May 21,2010.^{Footnote 12}

[12] On August 28, 2017, the Appellant submitted an application to the Appeal Division (AD) of the Tribunal asking to rescind and amend the PAB decision of June 9, 2004.^{Footnote 13} The AD refused the Appellant’s application. The Appellant appealed the AD’s decision to the Federal Court of Appeal, which dismissed the appeal.^{Footnote 14}

[13] The Appellant submitted a fourth CPP disability application on January 21, 2021^{Footnote 15},which was dismissed by the Minister based on the fact that the PAB rendered a decision that was final and binding in June 2004.^{Footnote 16} The Appellant did not appeal that decision.

[14] The Appellant submitted a fifth CPP disability application on September 28, 2021.^{Footnote 17} The Minister also dismissed that application based on the fact that the PAB rendered a decision that was final and binding in June 2004. The Appellant appealed that decision to the Tribunal. This appeal is about this fifth application.

[15] The Appellant’s MQP is December 31, 2003.His MQP has not changed since his first application of December 10, 2001.

[16] The Minister submits that I must dismiss the appeal because the Tribunal does not have the jurisdiction to consider whether the Appellant’s disability was severe and prolonged by December 31, 2003. The PAB held a hearing and rendered a decision on June 9, 2004, which is a final decision^{Footnote 18}.

Matters I must consider first

Formof hearing

[17] On his notice of appeal dated July 26, 2022, the Appellant did not indicate what kind of hearing he preferred. He left the section blank.

[18] I decided to hold a case conference to explain the law to the Appellant. The Appellant’s behaviour was such that I had to end the case conference^{Footnote 19}. For this reason, I did not have an opportunity to ask whether he agreed to a decision without a hearing. However, during the case conference, the Appellant repeated several times that he wanted a decision in writing. Therefore, I decided to render a decision without holding a hearing.

What the law says

The Canada Pension Plan

[19] Pursuant to the CPP^{Footnote 20}, a decision of the PAB is final and binding except as provided in the CPP.

The res judicata rule

[20] There is a legal rule called res judicata (the matter has been decided). The rule applies when issues have previously been decided by courts, administrative officers and tribunals.^{Footnote 21} More precisely, the rule says that when aperson appeals more than once, the Tribunal can’t decide an issue that has already been decided.

[21] There is a two-step analysis involved in determining whether it is appropriate to apply the res judicata rule.

[22] First step, the rule applies when these three requirements are met:

1. a) The issue in the current appeal is the same as the issue in an earlier appeal;
2. b) The parties are the same in both appeals;
3. c) The decision on the earlier appeal was final.

[23] Second step, even if the three requirements are met, the Supreme Court of Canada has held that the court or tribunal must still determine whether as a matter of discretion, the res judicata rule ought to be applied.^{Footnote 22}

[24] While a discretion exists, I cannot exercise that discretion randomly. In other words, I cannot decide for just any reason that the res judicata rule should not apply. My objective must be to ensure the application of the res judicata rule promotes the orderly administration of justice, but not at the cost of real injustice.^{Footnote 23}

[25] The Supreme Court of Canada set out a list of factors to consider about the previous appeal when addressing the question of discretion.

[26] The list of factors include, but are not limited to:

1. a) the purpose of the legislation;
2. b) the availability of an appeal;
3. c) the safeguards available to the parties in the administrative procedure;
4. d) the expertise of the initial decision-maker;
5. e) the circumstances giving rise to the first proceedings; and
6. f) any potential injustice.

[27] This list of factors is not exhaustive and the factors may not be relevant in every case. These factors are not meant tobe a checklist. I must address the factors for and against the exercise of discretion. Of all the factors to consider, the potential injustice factor is the most important. I have to consider whether it would be unjust not to hear the current appeal.

Reasons for my decision

[28]I have decided that the res judicata rule applies to the Appellant’s appeal. I have also decided that it isn’t unjust to decide not to hear the appeal. I will now explain why.

First step – Requirements - Res Judicata rule

[29] The rule applies because the three requirements for res judicata are met, and the appeal can’t go ahead. The issue in this appeal has already been decided by the PAB on June 9, 2004.

[30] First, the issues in both appeals are the same. The earlier appeal was about whether the Appellant had a severe and prolonged disability by December 31, 2003. That is when his MQP ended. After the PAB’s decision, the Appellant did not contribute to the CPP, and therefore his MQP did not change. This means that this appeal is still about whether he had a severe and prolonged disability by December 31, 2003, just as in the appeal before the PAB.

[31] Second, the parties are the same.They are still the Appellant and the Minister.

[32] Third, the PAB’s decision was final. The Appellant had 90 days to appeal the decision at the Federal Court of Appeal. Because the Appellant did not exercise his right to appeal, the PAB decision is therefore final.

[33] Since the res judicata rule applies, I now have to decide whether I should hear the Appellant’s appeal anyway.

Second step It isn’t unjust to decide not to hear the Appellant’s appeal

[34] I reviewed the file material and I have considered the factors listed by the Supreme Court of Canada.^{Footnote 24}

[35] I find there are no circumstances that would cause an injustice if I apply the res judicata rule to this appeal, for the following reasons:

• The purpose of the legislation is the same as in the previous appeal;
• The Appellant attended in person and gave evidence underoath at prior proceedings;
• He filed medical documents and was given the opportunity to make submissions;
• He had the opportunity to appeal the previous decision. Although, he did not exercise his right to appeal the June 9, 2004 PAB decision, he did however use other legal recourse. The Appellant`s case was reviewed on three occasions by the PAB for new facts. The PAB dismissed all the applications stating that the documents and reports that the Appellant submitted were either discoverable at the time of his hearing in 2004 or would not have changed the outcome. The evidence that the Appellant resubmitted for this appeal and claiming in his notice of appeal that it was not taken into account, has already been considered by the PAB on more than one occasion;^{Footnote 25}
• Both the RT and the PAB were applying their home statute in an area where they had expertise; and
• There is no evidence of any deficiencies in the procedure leading up to the June 9, 2004 PAB decision.

[36] What the Appellant is really asking me to do is re-hear his claim for CPP disability because he disagrees with the previous decision. But the principle of res judicata prevents the rehearing or re-litigation of matters that have already been decided.

Conclusion

[37] The Appellant’s appeal can’t go ahead. The PAB has already decided that he didn’t have a severe and prolonged disability by December 31, 2003. The res judicata rule applies. It is also not unjust not to hear the appeal.

[38]As a result, the Appellant isn’t eligible for a CPP disability pension.

[39]This means the appeal is dismissed.