BS v Minister of Employment and Social Development

BS v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2023-03-03 Neutral citation 2023 SST 177 Reference number GP-22-2057 Member Adam Picotte Division General Division Decision Appeal allowed Decision Content Citation: BS v Minister of Employment and Social Development, 2023 SST 177 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: B. S. Representative: Brook Laforest Respondent: Minister of Employment and Social Development Decision under appeal: Minister of Employment and Social Development reconsideration decision dated June 14, 2022 (issued by Service Canada) Tribunal member: Adam Picotte Type of hearing: In Writing Decision date: March 3, 2023 File number: GP-22-2057 On this page Decision Overview An appellant has 90 days to ask the Minister to reconsider a decision What the Minister needs to consider when a request for reconsideration is late The Minister’s discretion must be exercised judicially What I must decide The Appellant’s request for a reconsideration was made late The Minister did not exercise its discretion in a judicial manner Conclusion Decision [1] The appeal is allowed. [2] The Appellant, B. S., is eligible to have a decision about his application for Canada Pension Plan (CPP) disability benefits reconsidered. Overview [3] The Appellant is a 50-year-old former website developer. He was involved in a high velocity motor vehicle accident in January 2014 when he was rear-ended while at a stop sign. [4] The Appellant says that he could no longer work because of a mild-traumatic brain injury, fatigue, and other related conditions. [5] The Minister denied the Appellant’s application on February 9, 2021. The Minister explained that it was denying the application because the Appellant was not disabled at the time, he met the contributory requirements in December 2017.Footnote 1 [6] The Appellant contacted the Minister on June 12, 2021, and indicated that he did not receive a decision letter. As such, the reconsideration window was reset, and a new letter was mailed out to him. [7] On May 3, 2022, the Appellant filed a request for reconsideration. He wrote that the Minister misunderstood the letter from his family doctor as well as various assessments he enclosed with his application. [8] On June 14, 2022, the Minister wrote to the Appellant that it was refusing to conduct a reconsideration request on his file and that it was now closed. [9] The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division An appellant has 90 days to ask the Minister to reconsider a decision [10] If a person disagrees with a decision of the Minister, then that person has 90 days to ask the Minister to reconsider its decision. [11] If a person waits more than 90 days before asking the Minister to reconsider its decision, then the request for reconsideration is considered to be late. What the Minister needs to consider when a request for reconsideration is late [12] The Minister can reconsider a decision even if the request for reconsideration is late. However, the Minister can only do so if it is satisfied that:Footnote 2 There is a reasonable explanation for request a longer period; and The person has demonstrated a continuing intention to request a reconsideration The Minister’s discretion must be exercised judicially [13] The Minister’s decision to grant or refuse a late reconsideration request is considered a discretionary decision. The Minister’s discretion must be exercised judicially.Footnote 3 [14] This means that the decision maker must not have:Footnote 4 acted in bad faith; acted for an improper purpose or motive; taken into account an irrelevant factor; ignored a relevant factor; or acted in a discriminatory manner. What I must decide [15] I must decide if the Appellant’s request for reconsideration was late. If it was, then I must also decide if the Minister exercised its discretion in a judicial manner when it decided to refuse a longer period of time for the Appellant to request a reconsideration. The Appellant’s request for a reconsideration was made late [16] The Appellant’s request for reconsideration was late. The Minister’s decision to deny the application was sent to the Appellant on June 12, 2021.Footnote 5 I find that the Appellant received the decision by June 22, 2021, as mail generally arrives within 10 days of being sent by post. The Appellant did not ask the Minister to reconsider its decision until May 3, 2022.Footnote 6 The Appellant’s request was, therefore, filed late (i.e. more than 90 days after the Appellant received the decision of June 12, 2021. The Minister did not exercise its discretion in a judicial manner [17] The Minister denied the Appellant’s request for reconsideration because the Minister determined that the Appellant did not provide a reasonable explanation for delay or show a continuing intention to request a reconsideration. However, in doing so, the Minister ignored relevant factors. [18] The Minister wrote that the Appellant had not endorsed significant impairments in his activities of daily living which would prevent him from requesting reconsideration in a timely manner.Footnote 7 However, in reviewing the file, the Appellant clearly suffers from post-traumatic headaches, a sleep disorder, symptoms from a concussion, vestibular impairments, and chronic pain throughout his spine.Footnote 8 There is also notations of fatigue both physical and mental. Given the extent of his disabilities and the impairments flowing from each, I am satisfied that his brain injury did impair the Appellant’s ability to file his reconsideration request within the 90-day period allowed. As such, the Minister ignored a relevant factor in adjudicating the claim. [19] The Minister also wrote that the Appellant did not have a continuing intention to pursue the appeal. As noted in the Minister’s ITRDS system, the Appellant first called Service Canada on June 10, 2021. He noted that he was inquiring about the reason for the decision on his application. He then called on June 12, 2021, and indicated that he did not receive a decision letter. As detailed above, I determined the Appellant then received the reconsideration decision on June 22, 2021. As such, the reconsideration window was reset, and a new letter was mailed out to him. On September 27, 2021, the Appellant contacted the Minister and advised that he was going to apply for reconsideration. [20] The Minister then wrote that considering the significant lapse in time from the time the applicant’s reconsideration rights expired, to the time the applicant contacted Service Canada, this does not demonstrate a continuing intention to request a reconsideration during the 90-day period, and continuously demonstrated thereafter. [21] However, it is apparent that a significant period of time had not lapsed as the Appellant contacted the Minister two weeks after the expiration of the 90-day appeal period and indicated his intention to file a notice of appeal. Although mentioned in its assessment, the Minister did not take this fact into consideration when it found that the Appellant had not demonstrated a continuing intention to request a reconsideration during the 90-day period. For this reason, I have determined that the Minister ignored a relevant factor and therefore did not exercise its discretion judiciously. What happens when the Minister’s discretion is not exercised judicially [22] As I have found that the Minister’s discretion was not exercised judicially, I must now do my own assessment of whether the Appellant’s request for a late reconsideration should be granted. If I find that it should be granted, then I must refer the matter back to the Minister with a direction to grant the Appellant an extension of time to request a reconsideration. The Appellant has provided a reasonable explanation for the delay [23] The Appellant wrote that he has a brain injury, and it takes a long time for him to do paperwork. In reviewing the file, I am satisfied that the Appellant suffers from post-traumatic headaches, a sleep disorder, symptoms from a concussion, vestibular impairments, and chronic pain throughout his spine.Footnote 9 There is also notations of fatigue both physical and mental. Given the extent of his disabilities and the impairments flowing from each, I am satisfied that his brain injury and related disabilities impaired his ability to file reconsideration request within 90 days. The Appellant showed a continuing intention to request a reconsideration [24] As noted in the Minister’s ITRDS system, the Appellant first called Service Canada on June 10, 2021. He noted that he was inquiring about the reason for the decision on his application. He then called on June 12, 2021, and indicated that he did not receive a decision letter. As such, the reconsideration window was reset, and a new letter was mailed out to the applicant. Shortly after the 90-day appeal period, on September 27, 2021, the Appellant contacted the Minister and advised that he was going to apply for reconsideration. I am satisfied given this contact, that the Appellant demonstrated a continuing intention to request a reconsideration. Conclusion [25] The Appellant has satisfied the two factors needed to have his request for a late reconsideration granted. [26] The appeal is allowed. Footnotes Footnote 1 GD2-121 Footnote 2 Subsection 74.1(3) of the Canada Pension Plan Regulations Footnote 3 See Canada (Attorney General) v Uppal, 2008 FCA 388. Footnote 4 See Canada (Attorney General) v Purcell, [1996] 1 FC 644. Footnote 5 GD2-10 Footnote 6 GD2-16 Footnote 7 GD2-165 Footnote 8 GD2-227 Footnote 9 GD2-227