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

C. F. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2017-11-10 Neutral citation 2017 SSTADIS 628 Reference number AD-16-1147 Member Nancy Brooks Division Appeal Division Decision Application for leave to appeal granted Decision Content On this page Introduction Background General division decision Discussion Disposition Reasons and decision Introduction [1] On August 15, 2016, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that the Applicant had filed his appeal of the Respondent’s reconsideration decision late and refused to grant him an extension of time to file the appeal. The Applicant seeks leave to appeal that decision. [2] Pursuant to s. 58(1) of the Department of Employment and Social Development Act (DESDA), the only grounds of appeal to the Appeal Division are that: a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or c) the General Division based 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. [3] An appeal to the Appeal Division may only be brought if leave to appeal is granted: DESDA, s. 56(1). The requirement to obtain leave to appeal serves the objective of eliminating appeals that have no reasonable chance of success: Bossé v. Canada (Attorney General), 2015 FC 1142, at para. 34. [4] I have concluded that this is an appropriate case to deal in the same decision with both the application for leave to appeal and the appeal on the merits. On the application for leave to appeal, the issue before me is whether the proposed appeal has a reasonable chance of success. In the context of an application for leave to appeal, having a reasonable chance of success means having some arguable ground upon which the proposed appeal might succeed: Osaj v. Canada (Attorney General), 2016 FC 115; Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41. On the appeal on the merits, the issue is whether the Applicant has demonstrated on a balance of probabilities that the General Division committed an error falling within s. 58(1) of the DESDA. [5] For the reasons that follow, I grant the application for leave to appeal. Furthermore, I allow the appeal of the General Division’s decision refusing the Applicant an extension of time to appeal the Respondent’s reconsideration decision, as I find the General Division based its decision on an erroneous finding that the Applicant’s appeal was filed late. However, given the unambiguous terms of the Canada Pension Plan (CPP), the Respondent in both its initial decision and the reconsideration decision gave the Applicant the maximum amount of retroactivity permitted by statute. Therefore, in the result, pursuant to s. 59(1) of the DESDA, I give the decision the General Division should have given and summarily dismiss the appeal of the Respondent’s reconsideration decision. Background [6] The Applicant applied for a CPP disability pension on September 2, 2006. The Respondent approved payment of the benefit on December 29, 2006,Footnote 1 and informed the Applicant that his disability pension would be made payable retroactive to October 2005. The Applicant requested reconsideration by the Respondent with respect to the start date of the pension. In his letter seeking reconsideration, he claimed the disability pension should be paid retroactive to 1992 or, alternatively, to 1985.Footnote 2 [7] The Respondent’s reconsideration decision, dated February 15, 2007,Footnote 3 maintained the decision to pay the disability pension retroactive to October 2005. In its decision, the Respondent stated that, in accordance with the provisions of the CPP, the earliest the Applicant could be considered disabled was 15 months prior to the date of his application for disability benefits, i.e. June 2005, and his disability pension was payable starting four months after that date, i.e. October 2005. [8] The Applicant appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals (OCRT) on March 1, 2007.Footnote 4 The Respondent filed submissions in response to the appeal on June 7, 2007.Footnote 5 The OCRT closed the file, as noted in correspondence from the OCRT to the Respondent dated September 27, 2007.Footnote 6 [9] In his appeal to the General Division, Footnote 7 the Applicant stated he had not been provided with a hearing before a Review Tribunal and he was requesting a hearing of his appeal. Footnote 8 In his materials filed on the appeal to the General Division, the Applicant took the position that his disability pension should be paid retroactive to “the summer of 1985”. Footnote 9 General division decision [10] In her decision, the General Division member referred to the Jobs, Growth and Long-term Prosperity Act (JGLPA), and she observed that it introduced changes to the way appellants may appeal decisions of the Respondent under the CPP. The member noted that s. 52(2) of the DESDA now allows for an extension of time within which an appeal of a reconsideration decision may be brought, but in no case may an appeal be brought more than one year after the day on which the reconsideration decision is communicated to an appellant. [11] The General Division member recognized in her reasons that the Applicant had filed an appeal with the OCRT “on March 5, 2007”,Footnote 10 and also recognized in her reasons that the OCRT had closed the file on September 27, 2007. However, she effectively treated the Applicant’s appeal to the General Division as a first appeal of the reconsideration decision and then proceeded to determine whether it had been filed late and, if so, whether she should exercise her discretion to grant an extension of the time to appeal. [12] In her analysis, the member concluded that the Applicant’s appeal was not barred by the statutory limitation in s. 52(2) of the DESDA because, in her view, the absolute one-year time limitation under that section does not apply to appellants who were notified of a reconsideration decision before April 2013. In making this finding, the member relied on her interpretation of what she stated was a rule that legislation is not to be applied as having retrospective application. [13] Having concluded that the appeal to the General Division was not statute-barred, the member went on to consider whether she should exercise her discretion to grant an extension of time to appeal the reconsideration decision. In Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 883, the Federal Court set out four factors that should be considered and weighed in determining whether to grant an extension of time: a) Did the person requesting the extension demonstrate a continuing intention to pursue the application or appeal? b) Does the matter disclose an arguable case? c) Is there a reasonable explanation for the delay? d) Is there any prejudice to the responding party in allowing the extension? [14] The member considered the four Gattellaro factors and concluded the Applicant did not meet the first three requirements listed above. In particular, with respect to whether the matter disclosed an arguable case, she found that it did not, because the Applicant had been awarded the maximum amount of retroactive payment permitted under s. 42(2) and s. 69 of the CPP. She refused to grant an extension of time, based on her assessment of the Gattellaro factors and in the interests of justice. Discussion Application for leave to appeal [15] At the time the reconsideration decision was made in February 2007, former s. 82(1) of the CPP provided that a party could appeal the decision to a Review Tribunal in writing within 90 days after the date on which the party was notified of the reconsideration decision, or any longer period that the Commissioner of Review Tribunals (Commissioner) might allow. The record before the General Division shows that the Applicant appealed within the stipulated 90-day period by filing an appeal with the OCRT on March 1, 2007. [16] Although the General Division member duly noted that the Applicant had filed an appeal with the Review Tribunal, in my view, she failed to recognize the significance of this. In view of the fact that the Applicant had already met his statutory obligation to file an appeal with the OCRT prior to expiration of the 90-day time limit, there was no need for him to obtain an extension of time to appeal the reconsideration decision to the General Division. As he stated in his materials filed with the General Division, he was seeking a hearing of the appeal he had filed earlier with the OCRT.Footnote 11 [17] As was apparent from the record before the General Division member, the OCRT had closed the file without a Review Tribunal having rendered a decision on the appeal. Consequently, under the transitional provisions of the JGLPA,Footnote 12 the General Division became seized of the appeal and, arguably, the member should have dealt with the appeal on the merits. [18] I find there is an arguable case that the General Division may have committed an error falling within the scope of s. 58(1) of the DESDA. Accordingly, leave to appeal is granted. Appeal of General Division decision [19] I find the General Division committed an error under s. 58(1)(c) of the DESDA by failing to take into account that the Applicant’s earlier appeal to the OCRT had been filed within the designated time limitation. I find that, as the Applicant had already filed a timely appeal with the OCRT, his appeal was filed within the time stipulated by the legislation. Therefore, there was no need for the member to conduct an analysis as to whether the appeal to the General Division had been filed late or as to whether an extension of time should be granted. [20] As explained below, because the Applicant had filed a timely appeal with the OCRT and no decision had been made by a Review Tribunal on that appeal, under the transitional provisions of the JGLPA the General Division became seized of the appeal and should have dealt with the appeal on its merits. By failing to deal with the appeal on the merits, the member improperly failed to exercise her jurisdiction under s. 58(1)(a) of the DESDA. [21] Accordingly, the appeal of the General Division’s decision refusing to grant an extension of time is allowed. Appeal of reconsideration decision [22] Under s. 59(1) of the DESDA, the Appeal Division may, among other things, give the decision the General Division should have given. For the following reasons, I give the decision the General Division should have given and summarily dismiss the appeal of the reconsideration decision. [23] Given the letter in the record from the OCRT to the Respondent dated September 27, 2007,Footnote 13 advising the Respondent that the OCRT had closed the file, it is clear that no hearing before a Review Tribunal had been held and, instead, the OCRT had closed the file administratively. [24] I note that, under the former CPP regime as it stood in 2007, there was no provision granting the Commissioner the authority to administratively close an appeal on this or any other basis. Under the former CPP regime in place when the Applicant filed his appeal to the OCRT, a Review Tribunal, constituting three persons chosen by the Commissioner, was to hear an appeal.Footnote 14 The OCRT’s administrative closure of the appeal file deprived the Applicant of his right to a hearing before three members of the Review Tribunal: see Lambie v. Canada (Attorney General), 2011 FC 104, where the Federal Court held that the administrative closure of an appeal file by the Commissioner deprived the appellant in that case of his right to appeal and constituted a breach of procedural fairness. As a result, in the present case, the decision of the Commissioner of Review Tribunals to close the file is void as a matter of law. As no hearing had been held and no decision had been made by a Review Tribunal on the Applicant’s appeal, under the transitional provisions of the JGLPA, s. 255(3), the General Division became seized of the appeal and should have dealt with the appeal on its merits. [25] In her analysis of the Gattellaro factors, the General Division member concluded that the matter did not disclose an arguable case because the Applicant had been awarded the maximum amount of retroactive payment permitted under s. 42(2) and s. 69 of the CPP. Paragraph 42(2)(b) of the CPP, which defines when a person is considered disabled, remains unchanged between 2006, when the Applicant applied for disability benefits, and the present. It provides that “[i]n no case shall a person […] be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made”. Section 69 of the CPP, also unchanged during the same period, states in its relevant parts “where payment of a disability pension is approved, the pension is payable for each month commencing with the fourth month following the month in which the Applicant became disabled”. [26] The statutory provisions applicable to when payment of a disability pension starts are unambiguous. Given that the Applicant applied for a disability pension in September 2006, it is clear that the Respondent did not err when it concluded that the earliest date the Applicant’s disability pension could commence was October 2005. The Respondent had given the Applicant the maximum retroactivity permitted by the legislation, which was recognized by the General Division member in her reasons. [27] As confirmed by the Federal Court in Belo-Alves v. Canada (Attorney General), [2015] 4 FCR 108, 2014 FC 1100, the transitional provisions under the JGLPA make it clear that Parliament intended that matters dealt with by the Tribunal are subject to the regime put in place under the DESDA. Under s. 53(1) of the DESDA, the General Division must summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success. Thus, an appellant to the General Division does not have an automatic right to a de novo hearing. [28] In the present case, given the statutory regime applicable to when payment of a claimant’s disability pension may commence, the Applicant’s appeal to the General Division had no reasonable chance of success, and the General Division would have been required to summarily dismiss the appeal pursuant to s. 53(1) of the DESDA. [29] Given these facts, in accordance with s. 59(1) of the DESDA, I give the decision the General Division should have given and hereby summarily dismiss the appeal of the Respondent’s reconsideration decision. Disposition [30] The application for leave to appeal is granted. The appeal of the General Division decision refusing to hear the appeal on the basis that it had been filed late is allowed. [31] Pursuant to s. 59(1) of the DESDA, I hereby give the decision the General Division should have given and summarily dismiss the appeal of the Respondent’s reconsideration decision. Footnotes Footnote 1 GD5-11 to GD5-13. Footnote 2 GD5-16 to GD5-17. Footnote 3 GD5-22 to GD5-25. Footnote 4 GD5-26 to GD5-34. The Applicant’s letter dated February 22, 2007 was received by the OCRT on March 1, 2007 (see GD5-35). Footnote 5 GD5-39 to GD5-46. Footnote 6 GD5-47. Footnote 7 The Applicant filed an incomplete appeal to the General Division on October 28, 2014. His appeal was perfected on February 13, 2015. Footnote 8 GD1-2. Footnote 9 GD1-9. Footnote 10 See para. 6 of the General Division decision. The date in the General Division decision should read March 1, 2007, as this is the date the Applicant’s letter appealing the reconsideration decision was received by the OCRT (see GD5-35). Footnote 11 GD1-2. Footnote 12 JGLPA, s. 255(3), in force June 29, 2012. Footnote 13 GD5-47. Footnote 14 CPP, s. 82(7) and s. 82(8).