H. W. v. Minister of Employment and Social Development

H. W. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2018-05-07 Neutral citation 2018 SST 500 Reference number AD-18-211 Member Neil Nawaz Division Appeal Division Decision Application for leave to appeal refused Related decisions SST - H. W. v. Minister of Employment and Social Development - 2017SSTGDIS 203 - 2017-12-31 - General Division Decision Content On this page Decision Overview Issues Analysis Conclusion Decision and Reasons Decision [1] Leave to appeal is refused. Overview [2] The Applicant, H. W., was born in 1961 and worked as a truck driver until 2004, a year after he sustained an on-the-job injury to his back. In September 2005, he applied for a disability benefitunder the Canada Pension Plan (CPP). In January 2006, the Respondent, the Minister of Employment and Social Development (Minister), refused the application because it found insufficient evidence of a severe and prolonged disability as of the Applicant’s minimum qualifying period (MQP), which ended on December 31, 2006. The Applicant claims that he did not request reconsideration because he relied on erroneous advice from the Minister’s medical adjudicator, who led him to believe that a reconsideration would not go in his favour. [3] The Applicant submitted a second application for the CPP disability benefit in August 2009. Since the Applicant had not recorded any further earnings or contributions, the MQP remained the same. This time, the Respondent decided in the Applicant’s favour, granting him a disability benefit with a deemed date of disability onset of May 2008 and a first payment date of September 2008, which it determined was the maximum period of retroactivity permitted under the law. [4] The Applicant appealed the date of onset to the now-defunct CPP Review Tribunal (RT), asking that the benefit be payable effective January 2005, the month after he was constructively dismissed from his job. In June 2011, the RT denied the appeal on the ground that it had no jurisdiction over the first application and did not have the authority to deem the Applicant disabled more than 15 months before the receipt of the second application. The Pension Appeals Board (PAB) denied leave to appeal in July 2011. [5] In June 2012, the Applicant asked the Minister to rescind or amend, pursuant to s. 84(2) of the CPP,Footnote 1 its January 2006 decision because of new facts, which he submitted had been provided as part of his August 2009 application. The Minister replied that its decisions were not subject to s. 84(2) and that only RT decisions could be rescinded or amended under that provision. Over the next five years, the Applicant repeatedly asked the Minister to extend the retroactivity of his CPP disability benefit. On each occasion, the Minister advised the Applicant that the RT’s decision was final and that it was not possible to re-open his previous applications and change the effective date of his benefit.Footnote 2 [6] In May 2016, the Applicant filed a notice of appeal with the General Division of the Social Security Tribunal—the RT’s successor—expressing disagreement with the Minister’s previous denial letters. In January 2017, the Applicant filed an application with the General Division to rescind or amend the Minister’s January 2006 decision to refuse him the disability benefit. On December 31, 2017, having considered both proceedings on the basis of the existing documentary record, the General Division dismissed the appeal, finding that the Applicant had no recourse after the PAB declined leave to appeal the RT’s June 2011 dismissal. The General Division also found that it had no jurisdiction to rescind or amend a decision of the Minister. [7] On April 4, 2018, the Applicant applied for leave to appeal to the Tribunal’s Appeal Division, alleging various errors of law on the part of the General Division. Having reviewed the Applicant’s submissions against the record, I have concluded that none of his allegations would have a reasonable chance of success on appeal. Issues [8] According to s. 58(1) of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: The General Division (i) failed to observe a principle of natural justice; (ii) erred in law; or (iii) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material. An appeal may be brought only if the Appeal Division first grants leave to appeal,Footnote 3 but the Appeal Division must first be satisfied that it has a reasonable chance of success.Footnote 4 The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.Footnote 5 [9] I must decide whether there is an arguable case that the General Division erred in finding that it lacked the power to provide the relief sought by the Applicant; finding that reopening the 2006 ministerial refusal would be a collateral attack on the RT’s June 2011 decision; finding that the RT’s and PAB’s refusals to extend retroactive payment barred the General Division from reopening the 2006 ministerial refusal; or considering irrelevant factors when it determined that the Minister had exercised its discretionary powers judicially in refusing the Applicant’s late request for reconsideration. Analysis Issue 1: Did the General Division err in finding that it lacked the power to provide relief? [10] The Applicant takes issue with the General Division’s finding, in paragraph 29 of its decision, that s. 66 of the DESDA only permits it to rescind or amend one of its own (or the RT’s) decisions and has no applicability to ministerial decisions. He points to s. 64 of the DESDA, which gives the Tribunal the right to “decide any question of law or fact that is necessary for the disposition of any application made under this Act.” He also suggests that s. 82 of the CPP empowers the General Division to require the Minister to reconsider its decisions. [11] I see no reasonable chance of success for these submissions. Subsection 66(4) of the DESDA is unambiguous in stating that a decision can only be “rescinded or amended by the same Division that made it.” As the General Division noted, the explicit object of the Applicant’s January 2017 application to rescind or amend is the Minister’s January 2006 refusal of his first CPP disability application. [12] Contrary to the Applicant’s assertion, s. 82 of the CPP does not give the General Division any authority to direct the Minister to make a discretionary decision. In this case, I see no means by which the General Division could have forced the Minister to reconsider its January 2006 decision once the statutory deadline to request reconsideration had passed. [13] As for s. 64 of the DESDA, I see no arguable case that the General Division neglected to exercise the full extent of its powers. First, s. 64(1) gives the General Division the authority to “decide any question of law or fact” raised by an application; it does not authorize the General Division to depart from the law or apply an equitable remedy—which is what, in essence, the Applicant is seeking. Second, the Applicant omits reference to s. 64(2) of the DESDA, which makes it clear that “despite subsection (1),” the General Division’s powers are limited. Issue 2: Did the General Division err in finding that reopening the 2006 ministerial refusal would be a collateral attack on the 2011 decision? [14] The Applicant denies that his effort to revisit the Minister’s January 2006 refusal amounts to a collateral attack on the RT’s June 2011 decision. [15] I see no arguable case on this ground. In determining that it is not possible to reopen a decision to deny an initial application where a final decision has been made on a second application, the General Division relied heavily on Dillon v. Canada,Footnote 6 whose facts closely parallel the Applicant’s situation. In both cases, the claimants were refused CPP disability benefits but never appealed the Minister’s decision to the RT. In both cases, the claimants filed a second application that ultimately proved successful before the RT. In both cases, the claimants later sought to extend the retroactivity of their payments to the first application date, raising the question of whether the tribunal had jurisdiction to do so. In Dillon, as the General Division aptly noted, the Federal Court ruled against the claimant, finding that it was not possible for the RT to review the initial decision when the application to rescind and amend was not pursued until after the granting of the second application.Footnote 7 [16] In his submissions, the Applicant does not address the General Division’s reliance on Dillon, even though it isentirely on point and binding on the Tribunal. In my view, Dillon by itself would be sufficient to decide this appeal, but the General Division also cited Canada v. Hogervorst,Footnote 8 an earlier Federal Court of Appeal decision that first clarified the rule against collateral attack in the context of multiple CPP applications and proceedings. In his submissions, the Applicant’s representative discusses Hogervorst at length, yet denies that it is relevant to this case: The facts in Hogervorst supra are completely different from the facts present in this case. H. W. is not asking the tribunal to find that the 2009 [sic] decision was incorrect, or alter the decision of that tribunal. The decision of the board and tribunal as made in 2009 [sic] can clearly coexist with the decision that H. W. is asking the board to make based on his 2005 application…. [17] I must disagree with the Applicant on this point. It is true that the facts in Hogervorst are, in some respects, different (in that case, the first application was decided by the RT and, after the second was found to be res judicata, the claimant applied for an extension of time to appeal the first to the PAB), but the overriding principle remains the same: After a final decision has been made on a second application, it is not possible to revive the first application where the two applications have common facts. The Applicant argues that his target is not the June 2011 RT decision, but this is little more than casuistry. While he has not formally asked that the RT’s decision be overturned, that would have been the net effect had his action before the General Division succeeded. Issue 3: Did the General Division err in finding that the RT’s and PAB’s refusals to extend retroactive payment barred it from reopening the 2006 ministerial refusal? [18] The General Division found that, because the matter was res judicata as a result of the 2011 RT decision, it was thus no longer possible to request a late reconsideration for the 2005 application. The Applicant also denies that the RT’s decision was the final word on the 2005 application and alleges that the RT actually came to the opposite conclusion: In the 2009 decision [sic] the tribunal specifically found “The appellant’s September 2005 application is not before the Tribunal.” The 2010 [sic] decision was not a final determination of the September 2005 decision and that tribunal admits it was not a court of competent jurisdiction as the 2005 application was not before it. [19] I do not see an argument here. While the RT rightly found that it had no jurisdiction over the 2005 application, its decision nonetheless extinguished any remaining rights originating from that initial application, including the right to request late reconsideration. The foundational precedent, again, is Hogervorst, which states that, where there has been no timely request for reconsideration of the initial decision and where a final decision has been given on the second application, the matter is final, and it is no longer possible to request a late reconsideration. Issue 4: Did the General Division consider irrelevant factors when it determined that the Minister had exercised its discretionary powers judicially? [20] The Applicant submits that the General Division erred in finding that the Minister acted judicially in exercising its discretion to refuse his late request to reconsider its 2006 refusal. Specifically, the Applicant alleges that the General Division should have recognized that the 2011 RT decision was an irrelevant factor in determining whether to revisit his first application. In the Applicant’s view, the RT’s disposal of his second application was “entirely unrelated” to the reconsideration of his first. [21] Again, I see no reasonable chance of success for this argument. In its decision, the General Division correctly cited the test set out in Canada v. Purcell,Footnote 9 and then stated: In denying the late request for reconsideration in June 2011 [sicFootnote 10], the Respondent properly took into account the fact that there was a final decision on the second application, which meant that it was not possible to re-open the first application. There is no indication that the Respondent acted in bad faith, acted for an improper purpose or motive, took into account an irrelevant factor, ignored a relevant factor, or acted in a discriminatory manner. [22] As discussed above, what made the June 2011 RT decision relevant was a body of jurisprudence, led by Hogervorst, that brought finality to not only the second application but also the first, since they shared the same facts and issues. Beyond this, I see no reason to challenge the General Division’s finding that the Minister exercised its discretion judicially. [23] The Applicant also alleges that the General Division failed to consider his claim that he was the victim of the Minister’s erroneous advice, which led him to not seek reconsideration in 2006. However, the General Division did consider this factor under a separate heading and found, pursuant to s. 66(4) of the CPP, that deciding whether to remedy such erroneous advice was a discretionary matter for the Minister, and the Minister only. As such, the General Division correctly determined it had no authority to compel the Minister to revisit the 2006 refusal. Conclusion [24] Since the Applicant has not identified any grounds of appeal under s. 58(1) of the DESDA that would have a reasonable chance of success on appeal, the application for leave is refused. Representative: Scott Buchanan, for the Applicant Footnotes Footnote 1 On April 1, 2013, this provision was repealed and replaced, in essentially the same terms, by s. 66 of the Department of Employment and Social Development Act. Footnote 2 In letters dated July 2012, October 2012, December 2014 and May 2016. Footnote 3 DESDA at ss. 56(1) and 58(3). Footnote 4 Ibid. at s. 58(1). Footnote 5 Fancy v. Canada (Attorney General), 2010 FCA 63. Footnote 6 Dillon v. Canada (Attorney General), 2007 FC 900. Footnote 7 This principle would also apply to the General Division, as the RT’s successor. Footnote 8 Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41. Footnote 9 Canada (Attorney General) v. Purcell, [1996] 1 FCR 644. Footnote 10 It appears that the General Division meant to refer to the Minister’s July 2012 refusal letter.