A. F. v. Minister of Employment and Social Development

A. F. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2019-01-29 Neutral citation 2019 SST 62 Reference number AD-18-874 Member Jude Samson Division Appeal Division Decision Application for leave to appeal refused Decision Content On this page Decision Overview Issues Analysis Conclusion Decision and reasons Decision [1] The application for leave to appeal is refused. Overview [2] The Applicant, A. F., stopped working as a server in October 2017 because of cancer of the stomach and then applied for a Canada Pension Plan (CPP) disability pension. The Minister refused her application, and the Tribunal’s General Division then dismissed the appeal. [3] Before the matter can move forward, I must decide whether to grant leave to appeal the General Division’s decision. Leave to appeal is refused for the reasons stated below. Issues [4] In deciding this matter, I addressed the following questions: Has the Applicant raised an arguable ground on which the appeal might succeed? Is there another arguable ground on which the appeal might succeed? Analysis The Appeal Division and its legal framework [5] At the Appeal Division, the emphasis is on determining whether the General Division made at least one of the three errors (or grounds of appeal) set out in section 58(1) of the Department of Employment and Social Development Act (DESD Act). Generally speaking, did the General Division: a) breach a principle of natural justice or make an error relating to its jurisdiction; b) make an error of law; or c) base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it? [6] Most cases before the Appeal Division follow a two-step process: the leave to appeal stage and the merits stage. This appeal is at the leave to appeal stage, meaning that permission must be granted for it to move forward. This is a preliminary hurdle aimed at filtering out cases that have no reasonable chance of success.Footnote 1 The legal test that applicants need to meet at this stage is a low one: Is there any arguable ground on which the appeal might succeed?Footnote 2 Issue 1: Has the Applicant raised an arguable ground on which the appeal might succeed? [7] Applicants seeking leave to appeal a General Division decision should provide some details about the error the General Division made and explain how this error relates to the grounds of appeal set out in section 58(1) of the DESD Act.Footnote 3 The Tribunal communicated this requirement to the Applicant in a letter sent with the General Division decision and on the form the Applicant used to file her application with the Appeal Division.Footnote 4 [8] In this case, the Applicant alleges that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction, but she does not explain how this breach was made. Instead, she simply reiterates the severity of her illness and the extent of her financial need. These assertions are not an arguable ground on which the appeal might succeed.Footnote 5 [9] The General Division explained in its decision why it did not assess the Applicant’s health condition in depth. In short, the CPP provisions do not allow the Applicant to receive a retirement pension and a disability pension at the same time.Footnote 6 Moreover, the CPP does not allow for the cancellation of a retirement pension in favour of a disability pension where the disability application is made 15 months or more after payment of the retirement pension began.Footnote 7 [10] The Applicant did not challenge this central finding of the General Division. On the contrary, this finding is well supported by the relevant CPP provisions. [11] Therefore, I note that the Applicant has not raised an arguable ground on which the appeal might succeed. Issue 2: Is there another arguable ground on which the appeal might succeed? [12] Although it is up to applicants to raise arguable grounds on which their appeals might succeed, I cannot stop at the precise grounds of appeal that they raise in their applications for appeal. Indeed, if the General Division could have misinterpreted or failed to consider some evidence, leave to appeal would normally be granted, regardless of technical deficiencies in the application for appeal.Footnote 8 [13] After reviewing the file and the decision under appeal, I am satisfied that the General Division considered the relevant evidence. Conclusion [14] This may not be the answer that the Applicant was hoping for, but the Tribunal is a legislative entity that has only the powers that the law gives it. The Tribunal interprets and applies the legislative provisions as they are set out and cannot use the principles of equity or consider extenuating circumstances to grant applications for leave to appeal. [15] Nevertheless, it should be noted that, as of January 1 of this year, the CPP offers a post-retirement disability benefit that is intended for people who became disabled after they started receiving their CPP retirement pension. The Applicant could follow up with the Minister (through Service Canada) for more information about the eligibility criteria and, if she wishes, on how to apply. [16] The application for leave to appeal is refused. Representative: A. F., self-represented Footnotes Footnote 1 DESD Act, s 58(2). Footnote 2 Osaj v Canada (Attorney General), 2016 FC 115; Ingram v Canada (Attorney General), 2017 FC 259. Footnote 3 Marcia v Canada (Attorney General), 2016 FC 1367. Footnote 4 Tribunal letter dated November 9, 2018; AD1-1 to 4. Footnote 5 Bellefeuille v Canada (Attorney General), 2014 FC 963 at para 31. Footnote 6 CPP, ss 44(1)(b) and 70(3). Footnote 7 CPP, ss 42(2)(b) and 66.1(1.1). Footnote 8 Tracey v Canada (Attorney General), 2015 FC 1300 at para 31; Griffin v Canada (Attorney General), 2016 FC 874 at para 20; Karadeolian v Canada (Attorney General) 2016 FC 615 at para 10.