Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] The Appellant, R. S., is entitled to have the February 8, 2014, decision about his Canada Pension Plan Disability (CPPD) pension reconsidered.

Overview

[3] The Appellant applied for a CPPD pension on July 4, 2013.^{Footnote 1} The Minister denied his application in a letter dated February 8, 2014.^{Footnote 2} I will call this the “denial decision”.

[4] On December 7, 2022 (more than eight years later), the Minister got a request from the Appellant to reconsider the denial decision.^{Footnote 3} On June 5, 2023, the Minister said that it would not reconsider its denial decision because the Appellant asked it too late.^{Footnote 4} The Appellant appealed that decision to the Tribunal.

What I must decide

[5] I must decide whether the Appellant’s reconsideration request was late.

[6] If it was, then I must decide whether the Minister exercised its discretion judicially (made its decision properly) when it refused to give the Appellant more time.^{Footnote 5}

[7] If the Minister didn’t exercise its discretion judicially, I will make the decision it should have made. To do this, I will be considering four issues that I will describe more later.

I accepted late evidence

[8] The Appellant submitted late evidence (see GD7). I accepted it in a previous decision.^{Footnote 6}

[9] The Appellant then submitted more late evidence (see GD14 and GD16) after the hearing started and after it concluded, respectively. The Social Security Tribunal Rules of Procedure say that I cannot consider late evidence unless I give a party permission to use that evidence.^{Footnote 7}

[10] I am accepting GD14 and GD16 because:

• the Minister didn’t object
• it is relevant
• I gave the Minister a chance to reply to the evidence and considered their reply^{Footnote 8}

[11]  I am swayed to accept this evidence by two things in particular: the Minister’s flexibility and the importance of the evidence. In the future, I hope that the Appellant’s representative will make sure, before the hearing, that the evidence upon which he intends to rely has been received, coded, and shared with the parties.

Reasons for my decision

The Appellant’s reconsideration request was late

[12] The Appellant’s request was late. He asked the Minister to reconsider the denial decision more than 90 days after he received notice of the decision.

[13] An appellant has 90 days to ask the Minister to reconsider a denial decision.^{Footnote 9} If the appellant waits more than 90 days, then their request is late.

[14] The Appellant hasn’t been consistent about whether he received the Minister’s denial decision. Sometimes he said he wasn’t sure he got the letter.^{Footnote 10} However, at the hearing he said he got the denial decision in February 2014.

[15] I find that the Appellant received the denial decision at some point in February 2014. He has never said he didn’t get the letter, only that he wasn’t sure if he did or not. Also, what he did at the time (which I will talk about more later) shows that he knew the Minister denied his application.

[16] The Appellant asked the Minister to reconsider the denial decision on December 7, 2022. This is more than 90 days after the Minister told the Appellant about its denial decision. In fact, the Appellant was about eight years late.

What to consider when a reconsideration request is late

[17] The Minister can reconsider a decision even if the reconsideration request is late.

[18] For this to happen, the law says that an appellant has to convince the Minister of two things. The appellant has to show that:^{Footnote 11}

• they have a reasonable explanation for why they are late
• they had a “continuing intention” to ask the Minister to reconsider

[19] If the appellant asked the Minister to reconsider its decision more than 365 days after the Minister told them about it in writing or made a second application for the same benefit, then the law says that the appellant has to convince the Minister of two other things too. The appellant has to show that:^{Footnote 12}

• their reconsideration request has a reasonable chance of success
• giving them more time would not be unfair to another party

[20] If the Appellant doesn’t meet one of these four factors, then he isn’t entitled to have the Minister’s decision reconsidered.

The Minister must exercise its discretion judicially

[21] The Minister’s decision whether to consider a late reconsideration request is discretionary. Discretion is the power to decide whether to do something. The Minister has to exercise its discretion judicially.^{Footnote 13}

[22] If the Minister has done one of the following, then it didn’t exercise its discretion judicially:^{Footnote 14}

• acted in bad faith
• acted for an improper purpose or motive
• considered an irrelevant factor
• ignored a relevant factor
• acted in a discriminatory way (unfairly)

The Minister didn’t exercise its discretion judicially

[23] When I consider this issue, I look at the evidence of how the decision was made by the person or people who made it when they made it.

[24] The Minister said it refused the Appellant’s reconsideration request because he didn’t meet any of the four factors.

[25] There is no evidence that the Minister acted in bad faith, for an improper purpose or motive, or in a discriminatory way. But the Minister considered irrelevant factors and ignored relevant factors. This means the Minister didn’t exercise its discretion judicially.

The Minister considered irrelevant factors

[26] The Appellant has to show he has a reasonable chance of success. In an “Analysis” document, under the heading “Is there a reasonable chance of success?”, the Minister said this: “Given the length of the delay, it is arguable that the Minister would not be able adequately to reconsider the applicant’s application….”^{Footnote 15} The Minister focussed on how likely it was that the Appellant would succeed, not was there a reasonable possibility he would succeed. This standard was too high. The issue is whether there is some basis upon which the Appellant could succeed. Because the Minister didn’t consider the right issue, the Minister didn’t exercise its discretion judicially.

What happens when the Minister doesn’t exercise its discretion judicially

[27] I have found that the Minister didn’t exercise its discretion judicially. So, I now have to assess for myself whether the Appellant should get more time.

[28] If I find that the Appellant should get more time, then I must send the matter back to the Minister and tell it to reconsider the decision. If I don’t find that

the Appellant should get more time, then I must dismiss his appeal.

The Appellant should have more time

What happened

[29] The delay in this case is more than eight years. This is a very long delay and I have considered it in relation to all of the four factors. On the other hand, there is no fixed period of delay after which the Minister can refuse to consider a request for reconsideration without considering the circumstances.

[30] I think it will be a very rare set of facts in which a delay of eight years can be excused. Therefore, I will start my analysis with a high-level summary of what happened.

[31] In October 2012 the Appellant had a medical procedure that went very badly. He got a brain injury. His right leg was also damaged. After rehabilitation he applied for CPPD pension in July 2013. He got his denial decision in February 2014. On April 1, 2014, he met with his family doctor. The family doctor said this: “R. S. wonders about CPP application – I think he should appeal and I will write a letter of [support] for him.”^{Footnote 16}

[32] The family doctor’s notes then include a letter in support of the Appellant.^{Footnote 17} In it she says, among other things: “I hope you can reconsider his application….” The Minister says that letter was never received.^{Footnote 18} There is no evidence that the family doctor’s letter was sent by her or received by the Minister. I find that the Minister never got this letter.

[33] In 2018 (about four years later) the Appellant met someone who became his friend. She became involved with this matter. In late 2022 (a further four years later) she helped him ask the Minister to reconsider its denial decision.

The Appellant has a reasonable explanation for why he was late

[34] A reasonable explanation for one person may not be reasonable for another. The facts of each case and each person are important.

[35] I should also say something about the Appellant’s credibility and the reliability of his evidence. The Appellant’s brain injury resulted in cognitive deficits including problems with memory and concentration.^{Footnote 19} At the hearing he relied on notes and sometimes had difficulty remembering details. He often prefaced his answers with statements like “I think….” Several times he also said he couldn’t remember. I find that he is credible, but his evidence wasn’t always reliable. That is why I have also considered whether his memory matches other evidence and is objectively reasonable.

[36] The Appellant says that he thought his application was denied because it was missing or lacking in medical evidence showing a severe disability. I believe him in part because I agree with him: that is why the Minister denied the application. He says that this is why he asked his family doctor to help him.^{Footnote 20} This too makes sense to me.

[37] At the hearing the Appellant said that his family doctor told him she would send a letter asking the Minister to reconsider. The note actually says that she would “support” him.^{Footnote 21}

[38] The Appellant said that when he met with her after April 1, 2014, he would ask her whether she heard anything back from the Minister. I believe him, and these conversations tell me that the Appellant really did think his doctor was handling the request for reconsideration, not simply supporting his request. He said that when she told him she hadn’t heard back, he thought that the process was slow.

[39] The Minister says that the Appellant’s explanation isn’t reasonable for several reasons^{Footnote 22}:

• he knew or should have known from reading the denial decision that he was responsible (not his doctor) to ask for reconsideration
• after a certain point of his family doctor telling him she hadn’t heard back about the reconsideration request, he should have done something himself
• during this period, he was involved in medical malpractice litigation and purchased a house
• the medical evidence (of his cognitive, physical and mental health limitations) show that he had the “capacity” to follow-up on the denial decision, if not continuously, at least at certain points during the eight-year delay^{Footnote 23}

[40] The Appellant says that I need to consider what was reasonable for him, not someone else.  I agree. The Appellant’s explanation may be reasonable for him, but not others.

[41] If a reasonable delay of this length could only be explained by someone being “incapable” of asking for reconsideration earlier, I would deny this appeal. The Appellant clearly had the “capacity” to write a letter asking the Minister to reconsider.. At the very least, he could have asked someone to help him and follow up. But that is not the test.

[42] When I look at all the evidence, including what the Appellant said at the hearing, this is what I see. Since the medical mishap, the Appellant has had issues with his memory and concentration. His capacity to multi-task is compromised. He has also had periods of depression, sever fatigue, physical limitations, and cognitive deficits related to taking strong pain medications.

[43] The Appellant thought, albeit incorrectly, that his doctor started the process. He thought it took a long time, like the medical malpractice litigation process. Because of his memory problems, he didn’t appreciate how much time was passing. Because of his difficulties multi-tasking and concentrating, he would lose focus on this issue. He could only do/think about so many things at once.

[44] The Minister says he should have known it was taking too long based on the time it took between his initial application and denial. I don’t agree with the Minister. That may be true for the vast majority of people. It wasn’t true for the Appellant.

[45] The Appellant then met someone who supported him in this and other aspects of his life. By getting a power of attorney and essentially representing him, she figured out what had happened and helped him to ask for reconsideration.

[46] If after eight years the Appellant had asked for reconsideration without assistance, this would be a very different case. But this isn’t what happened. His friend took charge.^{Footnote 24} What happened with this reconsideration request is similar to what happened in other parts of his life. He formed an intention (e.g., to initiate a malpractice suit and buy a house) and then he relied on other people (e.g., lawyers, real estate agents, doctors) to action it.

[47] The last thing I will say about this issue is that a reasonable explanation is not the same thing as a convincing or compelling explanation. A “reasonable explanation” means an explanation that isn’t unreasonable. It just has to make sense. The Appellant’s explanation makes sense to me, even considering the extreme length of the delay.

The Appellant demonstrated a continuing intention to ask for reconsideration

[48] The Appellant demonstrated an intention to request reconsideration when he spoke with his family doctor on April 1, 2014. The issue then becomes whether he demonstrated a “continuing intention” after that.

[49] Demonstrate means to show. And “continuing” means without interruption. So, I think of the test in this way: did the Appellant do things that showed he always (i.e., without interruption) meant to ask for reconsideration?

[50] The Federal Court of Appeal said that a person can demonstrate a continuing intention while pursuing a thing very slowly as long as the person doesn’t seem to have abandoned it.^{Footnote 25} The evidence shows that the Appellant never abandoned his intention to request reconsideration. He may have not actively and continuously pursued the request, for multiple reasons, but he never abandoned it.

[51] At first, he “showed” his intention by asking his doctor for updates. Then, he showed his intention by asking his friend to look into what had happened. Nothing he has ever said or done suggests that he abandoned his intention to ask the Minister to reconsider the denial decision.

The Appellant has a reasonable chance of success

[52] The Appellant has a reasonable chance of success. I say this simply because there is and has been evidence since his initial application that could support a finding that he had a severe and prolonged disability no later than he had to based on his contributions to the CPP.^{Footnote 26}

The delay doesn’t cause prejudice to another party

[53] The law says that I can only grant an extension if the delay is more than one year when there is “no prejudice” to another party. I will say a couple things about this. First, I think it is important that the law says “no prejudice” as opposed to “undue” prejudice. In other words, it is not a very difficult thing to show. But the prejudice must be real (not hypothetical). For example, it is not enough for the Minister to raise the spectre of many people asking for reconsideration years after they received the denial decision and the havoc it might cause.

[54] I appreciate that delay, in and of itself can lead to prejudice.^{Footnote 27} On the other hand, as I mentioned before, the law doesn’t set a “hard deadline” after which a person cannot ask for reconsideration, regardless of the facts.

[55] When I look at this case this is what I see. The Appellant has to prove he had a disability that was severe and prolonged. The Minister doesn’t have to disprove anything. If anyone is prejudiced, it is the Appellant, not the Minister.^{Footnote 28} There are no other parties in this case.

[56] The medical evidence is what it is. The Minister doesn’t need to go out and seek other evidence or “challenge” the existing evidence. The Minister can make a decision based on the medical evidence it has. If it isn't convinced by the evidence (for whatever reason), then its decision would be to deny a CPPD pension to the Appellant.

[57] Although it may be more difficult to make a decision in this case as compared to most others, the Minister isn’t prejudiced.

Conclusion

[58] The Minister’s decision wasn’t properly made, and the Appellant meets the four factors for a late reconsideration. He is entitled to have the Minister’s denial decision reconsidered.

[59] I am sending this matter back to the Minister. The Minister must reconsider its denial decision.

[60] This means the appeal is allowed.