J. P. v. Minister of Employment and Social Development

J. P. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2019-04-29 Neutral citation 2019 SST 382 Reference number AD-19-282 Member Valerie Hazlett Parker Division Appeal Division Decision Application for leave to appeal refused Featured decisions Yes Summary: CPP – Section 70.1 of the Canada Pension Plan requires that a claimant become disabled after December 2018 in order to receive the post-retirement disability pension. Decision Content On this page Decision Overview Issue Analysis Conclusion Decision and reasons Decision [1] Leave to appeal is refused. Overview [2] J. P. (Claimant) began to receive a Canada Pension Plan retirement pension in April 2016. He fell at work in May 2016. In April 2017, he applied for a Canada Pension Plan disability pension and claimed that he was disabled as a result of the fall. The Minister of Employment and Social Development refused the application because it decided that the Claimant was not disabled before he began to receive the retirement pension. [3] The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal for the same reason, and also decided that the Claimant was not eligible for a post-retirement disability pension because he did not become disabled after December 2018. [4] Leave to appeal from the General Division’s decision is refused because the appeal does not have a reasonable chance of success on the basis that the General Division made an error in law regarding the post-retirement disability pension. Issue [5] Does the appeal have a reasonable chance of success because the General Division made an error in law regarding the Claimant’s eligibility for the post-retirement disability pension? Analysis [6] The Department of Employment and Social Development Act governs the Tribunal’s operation. It sets out only three grounds of appeal that the Appeal Division can consider. They are that that the General Division failed to observe a principle of natural justice, made an error in law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.Footnote 1 In addition, leave to appeal is to be refused if the appeal has no reasonable chance of success.Footnote 2 Therefore, to be granted leave to appeal the Claimant must present a ground of appeal that falls under the DESD Act and on which the appeal has a reasonable chance of success. [7] The Claimant argues that the General Division erred in law when it stated that the post-retirement disability pension is payable to a claimant whose minimum qualifying period (the date by which a claimant must be found to be disabled in order to receive the pension) is January 2019 or later. The Claimant relies on section 44(1)(h) of the Canada Pension Plan, which states: a post-retirement disability benefit shall be paid to a beneficiary of a retirement pension who has not reached 65 years of age, is disabled and who (i) has made base contributions for not less than the minimum qualifying period, (ii) is a contributor to whom a post-retirement disability benefit would have been payable at the time the contributor is deemed to have become disabled if an application for a post-retirement disability benefit had been received before the application was actually received, or (iii) is a contributor to whom a post-retirement disability benefit would have been payable at the time the contributor is deemed to have become disabled if a division of unadjusted pensionable earnings that was made under section 55 or 55.1 had not been made. [8] While this section does not restrict payment of this pension to a claimant whose minimum qualifying period is January 2019 or later, section 70.01 must also be considered. It states Subject to section 62, if payment of a post-retirement disability benefit is approved, the benefit is payable for each month commencing with the fourth month following the month after December 2018 in which the applicant became disabled, except that if the applicant was, at any time during the five-year period next before the month in which the applicant became disabled as a result of which the payment is approved, in receipt of a disability pension payable under this Act or under a provincial pension plan or a post-retirement disability benefit, (a) the benefit is payable for each month commencing with the month next following the month after December 2018 in which the applicant became disabled as a result of which the payment is approved; (emphasis mine) This section of the Canada Pension Plan requires that a claimant become disabled after December 2018 in order to receive the post-retirement disability pension. Therefore, the appeal does not have a reasonable chance of success based on the General Division having made an error in law. [9] I have read the General Division decision and the written record. The General Division did not overlook or misconstrue any important information. There is no suggestion that it failed to observe a principle of natural justice. Conclusion Leave to appeal must therefore be refused. Representatives: J. P., Self-represented Footnotes Footnote 1 DESD Act s. 58(1) Footnote 2 DESD Act s. 58(2)