Minister of Employment and Social Development v. K. L.

Minister of Employment and Social Development v. K. L. Collection Canada Pension Plan (CPP) disability Decision date 2015-10-08 Neutral citation 2015 SSTAD 1201 Reference number AD-15-910 Member Hazelyn Ross Division Appeal Division Decision Application for leave to appeal granted Related decisions SST - Minister of Employment and Social Development v. K. L. - 2016 SSTADIS 20 - 2016-01-12 - Appeal Division Decision Content On this page Decision Introduction Grounds of the application Issue The law Analysis Decision [1] Leave to appeal to the Appeal Division of the Social Security Tribunal of Canada is granted. Introduction [2] On June 4, 2015 the General Division of the Social Security Tribunal of Canada, (the Tribunal), issued its decision in which it held that the Respondent had a severe and prolonged disability as described by s. 42 of the Canada Pension Plan, (CPP). Accordingly, he was entitled to a CPP disability pension. The Applicant seeks leave to appeal the decision, (the Application). Grounds of the application [3] The Applicant argued that while it did not contest the grant of disability benefits to the Respondent, the General Division erred by applying a wrong date of onset of June 2009. In the Applicant’s submission the correct date is November 2009. In the Applicant’s submission the General Division erred in fact and law, regarding these dates and these errors warrant the Appeal Division granting leave to appeal. Issue [4] The Tribunal must decide whether the appeal has a reasonable chance of success. The law [5] Leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division.Footnote 1 To grant leave, the Appeal Division must be satisfied that the appeal would have a reasonable chance of successFootnote 2. In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41 as well as in Fancy v. Canada (Attorney General), 2010 FCA 63, the Federal Court of Appeal equated a reasonable chance of success to an arguable case. [6] There are only three grounds on which an appellant may bring an appeal. These grounds are set out in section 58 of the Department of Employment and Social Development, (DESD), Act. They are that there was either a breach of natural justice; or the General Division erred in law; or the General Division based its decision on an error of fact made in a perverse or capricious manner or without regard for the material before it.Footnote 3 Analysis [7] In order to grant leave to appeal the Tribunal must be satisfied that the appeal would have a reasonable chance of success. This means that the Tribunal must first find that, were the matter to proceed to a hearing, (a) at least one of the grounds of the Application relate to a ground of appeal; and (b) there is a reasonable chance that the appeal would succeed on this ground. For the reasons set out below the Tribunal is not satisfied that this appeal would have a reasonable chance of success. The Alleged Errors [8] At the hearing, the Applicant’s representative did, in fact, request that the appeal be allowed and the date of onset of disability be established as November 2009. (Para. 55 (e)) However, at paragraph 64 of its decision the General Division deemed the Respondent disabled as of June 2009 with payment of the disability pension to commence as of October 2009. [64] The Tribunal finds that the Appellant had a severe and prolonged disability in June 2009 when he stopped working due to injuries suffered in an MV A in that month. According to section 69 of the CPP, payments start four months after the date of disability. Payments start as of October, 2009." [9] The applicable legislative provisions are CPP paragraphs 42(2)(b) and CPP section 69. Under CPP paragraph 42(2)(b), a person is deemed to have become or to have ceased to be disabled at the time that is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person - including a contributor referred to in subparagraph 44(1)(b)(ii) - 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. [10] Section 69 deals with when payment of a CPP disability pension commences. Commencement of pension 69. Subject to section 62, 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, except that where 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, (a) the pension is payable for each month commencing with the month next following the month in which the applicant became disabled as a result of which the payment is approved; and (b) the reference to "fifteen months" in paragraph 42(2)(b) shall be read as a reference to "twelve months". [11] The Respondent made his application in February 2011, not June 2009, which is the date he stopped working. Therefore, pursuant to CPP section 42, paragraph (2)(b) the General Division erred when it found the Respondent disabled as of June 2009. All else follows from this error. The Appeal Division is satisfied that the appeal has a reasonable chance of success. [12] Accordingly, the Tribunal grants the Application. Footnotes Footnote 1 Sections 56 to 59 of the DESD Act. Subsections 56(1) and 58(3) govern the grant of leave to appeal, providing that “an appeal to the Appeal Division may only be brought if leave to appeal is granted” and “the Appeal Division must either grant or refuse leave to appeal.” Footnote 2 The DESD Act, subsection 58(2) sets out the criteria on which leave to appeal is granted, namely, “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.” Footnote 3 58(1) Grounds of Appeal – a.The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or 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.