EK v Minister of Employment and Social Development

EK v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2020-05-08 Neutral citation 2020 SST 405 Reference number AD-19-630 Member Kate Sellar Division Appeal Division Decision Appeal allowed Featured decisions Yes Related decisions SST - E. K. v. Minister of Employment and Social Development - 2019 SST 1641 - 2019-07-15 - General Division Summary: DESDA Act – In this case, the General Division (GD) decided that the Claimant’s appeal was beyond the one-year mark. This decision did not consider whether an incomplete application, filed within the 90-day limit, could have been considered complete due to special circumstances. The Appeal Division (AD) found that the GD made an error of fact by ignoring some important evidence on a combination of factors that could have amounted to such special circumstances: (1) the Claimant’s representative is not a lawyer or a paralegal, but a pastor at the Claimant’s church; (2) the Claimant and his representative were clearly confused; (3) the reason the application was incomplete was a missing reconsideration decision; (4) the result of the Claimant’s failure to provide a copy of the reconsideration decision (and the date he first received it) is contrary to the interests of justice; and (5) the Tribunal stopped communicating with the Claimant. There is no doubt that the Claimant could have been more diligent in following up with the Tribunal. However, taken as a whole, the factors mentioned above amount to special circumstances that outweigh the lack of diligence on the part of the Claimant. Due to these special circumstances, the AD found that the appeal filed within the 90-day time period for filing will be considered complete. The matter will now proceed to the GD so that it can rule on the disability pension application. Decision Content On this page Decision Overview Issue Analysis Remedy Conclusion Decision and Reasons Decision [1] I allow the appeal. The General Division made an error. I will give the decision that the General Division should have given. Due to special circumstances, the appeal the Claimant filed within the 90-day time period for filing will be considered “complete.” The matter will now proceed to the General Division to decide whether the Claimant is eligible for the disability pension under the Canada Pension Plan (CPP). Overview [2] E. K. (Claimant) applied for a disability pension. The Minister refused the application initially and on reconsideration. The reconsideration decision is dated January 10, 2017.Footnote 1 [3] This Tribunal received an incomplete appeal from the Claimant on March 16, 2017.Footnote 2 The Tribunal did not accept it because it was missing information. The Tribunal sent the Claimant’s representative letters about what he needed to do to complete his appeal, but did not receive the required information. [4] The General Division issued a decision on July 15, 2019, stating that the Claimant’s appeal would not go ahead because more than one year had passed since the minister communicated the reconsideration decision to him. [5] The Claimant appealed the General Division decision to the Appeal Division. I gave the Claimant permission (leave) to appeal. [6] I must decide whether the General Division made an error under the Department of Employment and Social Development Act (DESDA). [7] The General Division made an error of fact. To fix (remedy) the error, I will give the decision that General Division should have given: I find that there are special circumstances that warrant deeming the Claimant’s appeal to be complete and on time. The matter will return to the General Division for a decision about whether the Claimant is entitled to the disability pension. Issue [8] Did the General Division make an error of fact by ignoring that the Claimant filed an incomplete appeal within the 90-day limit? Analysis Reviewing General Division decisions [9] The Appeal Division does not give people a chance to re-argue their case in full at a new hearing. Instead, the Appeal Division reviews the General Division’s decision to decide whether there is an error. That review is based on the wording of the DESDA, which sets out the basis for appeals to the Appeal Division (also called “grounds of appeal”).Footnote 3 [10] The DESDA says that it is an error when the General Division “bases 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.”Footnote 4 A mistake involving the facts has to be important enough that it could affect the outcome of the decision (that is called a “material” fact). The error needs to result from ignoring evidence, willfully going against the evidence, or from reasoning that is not guided by steady judgement.Footnote 5 Time limits for appealing to the General Division [11] An appeal must be brought to the General Division “in the prescribed form and manner” within 90 days after the Minister communicated the decision.Footnote 6 The General Division can grant an extension of time, but not beyond “one year after the day on which the decision is communicated to the appellant.”Footnote 7 [12] The “prescribed form and manner” for an appeal means that the appeal meets the requirements under the Social Security Tribunal Regulations (“SST Regulations”). The SST Regulations state that an appeal to the General Division must include eight specific things, including a copy of the reconsideration decision.Footnote 8 [13] If there are special circumstances, the Tribunal may “dispense a party from compliance” with any part of the SST Regulations.Footnote 9 In other words, if there are special circumstances, the General Division can decide to deem an appeal complete without either the Claimant or the Minister following a specific part of the SST Regulations. The SST Regulations also say that they need to be understood to achieve “the just, most expeditious and least expensive determination of appeals and applications.”Footnote 10 Did the General Division make an error of fact? [14] The General Division made an error of fact. The General Division ignored the fact that the Claimant filed an incomplete appeal within the 90-day limit. This incomplete appeal was material. It was important to the legal analysis because, where an appeal is incomplete but filed on time, the General Division needs to consider whether there are special circumstances that warrant dispensing the claimant from complying with any part of the SST Regulations. There may be special circumstances that mean the file can proceed even though the claimant did not comply with every part of the rule about what is required for a complete appeal. [15] The General Division decision states that the Claimant appealed the reconsideration decision to the Tribunal on February 20, 2019.Footnote 11 The decision references the communications the Tribunal had with the Claimant before 2019 about completing his incomplete appeal. However, the “submissions/evidence” section never directly mentions that the Claimant filed an incomplete appeal or when the Claimant filed that incomplete appeal. The decision instead references the letter the Tribunal sent outlining the “pieces of information that were still required to complete the appeal.”Footnote 12 The “submissions/evidence” section and the analysis never directly acknowledges the fact that the Claimant provided an incomplete appeal within the 90-day deadline on March 16, 2017. The General Division member decided that the appeal was complete as of February 20, 2019.Footnote 13 That is outside the one-year limit, and therefore the General Division member decided that they did not have the power to proceed with the appeal. The General Division also stated: In making this decision, I considered whether paragraph 3(1)(b) of the Social Security Tribunal Regulations (the “Regulations”) might assist the Appellant. That provision allows the Tribunal to dispense a party from compliance with any provision of the Regulations, if there are “special circumstances”. While that provision might assist a claimant who files an incomplete appeal with the Tribunal prior to the end of the one-year appeal period, it does not help the Appellant in this case.Footnote 14(emphasis added) [16] The General Division decided the Claimant’s appeal was beyond the one-year mark without considering whether the incomplete appeal, filed within the 90-day limit, could be considered complete due to special circumstances. [17] The Minister argues that the General Division did not make an error.Footnote 15 The Minister argues that the General Division was clear about the timeline of the case, and understood that the Claimant filed an incomplete appeal within the one-year period, even if the decision does not mention that fact. The Minister acknowledged that the General Division clearly stated that the special circumstances rule is available to those claimants who file an incomplete appeal before the end of the one-year appeal period, but it would not help the Claimant. [18] The Minister focusses on the fact that the General Division got the law right: in no case can a Claimant bring an appeal more than a year after the day the Minister communicated the reconsideration decision to the Claimant. [19] The Minister states that the General Division did consider whether there were any “special circumstances” that would allow the Claimant’s notice of appeal to be considered complete at a later date. The General Division decided that the Claimant here had appropriate information on the steps needed to complete his appeal, and there were no special circumstances to apply. [20] In my view, the General Division made an error of fact. The Claimant did bring an appeal within the 90-day deadline, but not entirely in the “prescribed manner”, because there were items missing (including a copy of the reconsideration decision). I find that the General Division ignored the fact that the Claimant made an incomplete appeal within the 90-day limit. I have reached this conclusion for two reasons: first, the General Division does not directly mention the incomplete appeal in the “submissions/evidence” section of the decision, and does not mention it at all in the analysis. [21] While the General Division does not have to refer to every fact in its decision, the importance of this fact leads me to infer not just that the General Division failed to discuss it, but that the General Division ignored it. An incomplete appeal filed in time is critical to a case about the timeliness of an appeal. The special circumstances rule means that an incomplete appeal can be considered a complete appeal. A complete appeal, filed in time, could change the result for the Claimant. [22] Second, the General Division decision specifically mentions that the special circumstances rule might assist a claimant who files an incomplete appeal within the one-year appeal period, but that this does not assist the Claimant. I have considered the Minister’s argument that the General Division decided the special circumstances rule did not help the Claimant because he had appropriate information on the steps necessary to file (not because it ignored that the Claimant filed an incomplete appeal in time). [23] In my view, the General Division’s description of the special circumstances rule starts by setting out to whom it can apply (namely, claimants who filed incomplete appeals within the one year period). The absence of a statement that the Claimant in fact filed an incomplete appeal not only within in the one-year period but also within the 90-day period suggests strongly to me that the General Division ignored the incomplete appeal. I understand that the General Division went on to mention that the Claimant had the information he needed to act and did not, but I do not understand that to be a conclusion that there were no special circumstances to consider. [24] I find that the General Division made an error of fact by ignoring important evidence. The Claimant filed an incomplete appeal within the 90-day period for appeal. The General Division decision needed to discuss that fact in its analysis. If there were special circumstances that the General Division could consider, it would provide a path for the Claimant’s case to proceed as complete and on time. In that case, the Claimant would have the chance to show whether he was entitled to the disability pension. Remedy [25] Once I have found an error by the General Division, I can return the case to the General Division for reconsideration, or I can give the decision that the General Division should have given.Footnote 16 [26] I will give the decision that the General Division should have given about whether the incomplete appeal can be deemed complete. I have all of the evidence I need to make the decision. This is the most fair and efficient way forward.Footnote 17 The Claimant’s appeal will be accepted as complete and on time. [27] The Claimant’s appeal filed March 6, 2017 was missing information required under the SST Regulations. There is no doubt that the appeal was incomplete. [28] However, I find that there are special circumstances here. I dispense with the need for the Claimant to have provided the missing items in order for the appeal to be considered complete. The reconsideration decision is dated January 10, 2017, and the Claimant’s appeal on March 6, 2017, within 90 days of when the reconsideration decision would have been communicated by Service Canada to the Claimant, is deemed complete.Footnote 18 [29] The Minister argues that even if I find an error and I give the decision, I should conclude that there are no special circumstances here that would mean that the incomplete appeal can be considered complete (and therefore on time). The Minister notes that the requirements for filing an appeal are important, and that in order for them to have meaning, claimants must not be excused from their obligation to respond to the Tribunal and provide the information the Tribunal needs to process an appeal. The Minister argues that the letters to the Claimant and his representative were clear about the need for the reconsideration decision, and that the Claimant and his representative did not act diligently at particular points in the process. The requirement to provide an appeal within the one-year period is important and must have meaning. [30] The Minister argues that the General Division gave the reason why the special circumstances rule would not help the Claimant “it is clear to me that the [Claimant] had the appropriate information on the steps necessary to file an appeal and had received the reconsideration decision.”Footnote 19 [31] In my leave decision, I mentioned another case from the Appeal Division involving a claimant who filed an incomplete appeal within the 90-day period. The Minister argues that case, K.P. v MESD,Footnote 20 is different from the Claimant’s case. In K.P., the claimant brought the appeal within the 90-day period, but the reconsideration decision was missing. Once he realized it was missing, he acted quickly to locate it and filed it with the Tribunal just after the one-year deadline. As a result, the Appeal Division and the parties agreed that there were special circumstances that meant that the Tribunal could waive the need to include the reconsideration decision with the original appeal. [32] By contrast, the Minister argues that in the present case, the Tribunal informed the Claimant and his representative numerous times of the steps necessary to complete the appeal. The Minister communicated the reconsideration decision in January 2017. The Claimant contacted the Tribunal in August, September and December of 2017, responding to letters from the Tribunal outlining the steps required to complete the appeal. The General Division spoke to the Claimant’s representative in December 2017 and August 2018 about the information the Tribunal needed to complete the appeal. The Claimant failed to provide what the Tribunal required, and also took no steps at all for long periods of time. Therefore, the Minister argues that there are no special circumstances here. [33] The Claimant’s representative wanted the Tribunal to understand that he is not a lawyer. He is a pastor who assists his congregants when they need help. The Claimant’s representative states that he and the Claimant tried to respond to the Tribunal’s requests. The first appeal the Claimant filed in March 2017 did not use the form. Once the Tribunal wrote the Claimant explaining what items were missing from that appeal, it did take the Claimant some time (until August 2017) to submit a completed appeal form and the authorization to disclose form (so that his pastor could help him). [34] From that point on, the only outstanding item was the reconsideration decision and a statement confirming when the Claimant received that reconsideration decision. The Claimant explained that he was under the mistaken impression that someone from the Canada Pension Plan (Service Canada, presumably) was going to send the reconsideration decision directly to the Tribunal and that it would take many months. Again, the Claimant tried to follow the rules, and provided more letters from Service Canada in September 2017, but it turns out it was not the letter that the Tribunal needed. [35] I have considered the “special circumstances” part of the SST Regulations. The SST Regulations do not define what counts as “special circumstances.” There is a risk that by defining special circumstances too broadly, Tribunal members excuse parties too easily or too often from following the SST Regulations. This would impact how fair and predictable the Tribunal’s processes are for everyone. [36] There is also a risk by defining special circumstances too narrowly, parties are denied access to justice for reasons that relate to procedure rather than substance. It is tempting to dismiss factors that claimants raise (like making a mistake, or failing to be sufficiently diligent, or having disability-related barriers, or lacking representation) as typical or common and therefore not “special circumstances.” Many claimants do not have lawyers, or have disabilities that make participation in bureaucracies difficult. In my view, the factor or factors that make circumstances “special” means that there will be some unusual quality about them. It does not require a situation of singular uniqueness or total novelty. [37] The Tribunal has considered and applied the special circumstances rule. In one case, there was an incomplete appeal to the Appeal Division, and the Tribunal closed the file. The Claimant eventually filed the missing information, and the Tribunal re-opened the case. The Appeal Division member found that there were special circumstances that allowed her to vary the requirements for the appeal to the Appeal Division. She found that it would be “contrary to the interests of justice” to allow an application for leave to appeal at the Appeal Division to be “defeated” too easily (and just because of a missing decision) without a decision about whether the Claimant qualified for the disability pension.Footnote 21 [38] There are some special circumstances here. I have considered several factors in this case. When considered together, in my view, these factors amount to special circumstances. This is not to say that any one of these factors would be sufficient alone to constitute special circumstances either in this case or in future. The factors I considered: First, the Claimant’s representative was not a lawyer or a paralegal, but a pastor at the Claimant’s church. Second, the Claimant and his representative were clearly confused about what they needed to provide the Tribunal in order to complete the appeal. Third, the reason the application was incomplete was a missing reconsideration decision (and information about when the Claimant received that decision). The Tribunal might have ready access to that document by requesting it from the Minister without the Claimant providing it.Footnote 22 The dynamic here is that Tribunal operations at that time did not have the ability internally to take steps to request the reconsideration decision from the Minister and therefore allow the file to proceed to a member. Fourth, the result of the Claimant’s failure to provide a copy of the reconsideration decision (and the date he first received it) is contrary to the interests of justice. The General Division denied the Claimant an opportunity to appeal the reconsideration decision about access to the CPP disability pension. The CPP is set up to provide benefits for people who qualify. The impact of failing to provide the reconsideration decision is quite harsh on the Claimant. He did not have the opportunity to have the actual content of the appeal he raised decided by an independent tribunal. Fifth, the Tribunal stopped communicating with the Claimant from September 2017 until the one-year limit ran out in January 2018. [39] I acknowledge the Minister’s argument about the importance of timelines and need for a “special circumstances” exception not to overtake the rules themselves. It is true that it took from March 2017 to August 2017 for the Claimant to provide almost everything that was needed in the appeal (he was still short one reconsideration decision and information about when he first received it). This was not a prompt response to the Tribunal’s requests. [40] There is no doubt that the Claimant could have been more diligent in following up, particularly between March 2017 and August 2017. However, in this case I am satisfied that it is important to look at the several factors in play that I have listed above. Together, these factors amount to special circumstances in this case. The Claimant made reasonable but nowhere near perfect attempts to comply with the rules and clarify the confusion. The confusion persisted for him and for his representative, who is not a lawyer or a paralegal. [41] There will be some instances in which, even when the Tribunal provides good information, Claimants will legitimately struggle to comply with procedural requirements. In this case, I cannot allow a period of lack of diligence by the Claimant and his non-lawyer representative to rule the day. The special circumstances here are a combination of factors, and in my view they outweigh the lack of diligence on the part of the Claimant. Conclusion [42] I allow the appeal. The General Division made an error of fact. I gave the decision that the General Division should have given: due to special circumstances, the appeal the Claimant filed within the 90-day time limit will be considered “complete.” The matter will now proceed to the General Division to decide the Claimant’s appeal for the disability pension under the Canada Pension Plan (CPP). Heard on: January 21, 2020 Method of proceeding: Teleconference Appearances: Cyril Williams, Representative for the Appellant John Unrau, Representative for the Respondent Footnotes Footnote 1 GD1C-2. Footnote 2 GD1-1. Footnote 3 DESDA, s 58(1). Footnote 4 DESDA, s 58(1)(c). Footnote 5 The Federal Court considered these ideas about perverse and capricious findings of fact in a case called Rahal v Canada (Minister of Citizenship and Immigration), 2012 FC 319. Footnote 6 DESDA, s 52(1)(b). Footnote 7 DESDA, 52(2). Footnote 8 SST Regulations, s 24. Footnote 9 SST Regulations, s 3(1)(b). Footnote 10 SST Regulations, s 2. Footnote 11 General Division decision, para 1. Footnote 12 General Division decision, para 5. Footnote 13 General Division decision, para 1. Footnote 14 General Division decision, para 9. Footnote 15 AD12-8 to 10. Footnote 16 DESDA, s 59. Footnote 17 SST Regulations, s 2. Footnote 18 In my calculation, I assume the Claimant received the reconsideration decision by mail 10 days after the date on that letter. There is nothing in the file to contradict that assumption. Footnote 19 General Division decision, para 10. Footnote 20 K.P. v Minister of Employment and Social Development, 2019 SST 433. Footnote 21 The case is L.N. v Minister of Employment and Social Development, 2015 SSTAD 538, paras 39 to 41. Footnote 22 In L.N., the Appeal Division member considered the fact that the Tribunal might have “ready access” to the document that was needed in that case without the Claimant providing it. That case was at a different stage of the appeal and the outstanding document was different than here, but the same principle applies.