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

Minister of Employment and Social Development v. L. F. Collection Canada Pension Plan (CPP) disability Decision date 2017-02-15 Neutral citation 2017 SSTADIS 45 Reference number AD-17-55 Member Margot Ballagh Division Appeal Division Decision Appeal allowed Decision Content On this page Decision Overview Issues The law Submissions Analysis Conclusion Reasons and decision Decision [1] The application for leave to appeal is granted and the appeal is allowed. Overview [2] The Applicant filed, within the prescribed time limit, an application to the Appeal Division of the Social Security Tribunal of Canada (Tribunal) for leave to appeal the Tribunal’s decision by the General Division dated October 20, 2016. The General Division determined that the Respondent was eligible for a disability pension under the Canada Pension Plan (CPP) and that payment of the pension should start as of November 2015. The Applicant expressly did not contest that the General Division granted disability benefits to the Respondent. The Applicant’s concern was that the General Division erred in applying section 69 of the CPP. More specifically, the Applicant took the position that payment of the pension should start as of November 2014, a year earlier than provided in the General Division decision. [3] The Applicant requested a corrigendum of the General Division decision to address this alleged error which appeared to be typographical, but the request was declined because the General Division member who wrote the decision was no longer a member of the Tribunal. Issues [4] I must decide the following issues: Does the appeal have a reasonable chance of success? If so, did the General Division err in how it applied section 69 of the CPP? If so, should I give the decision that the General Division should have given in this case? The law [5] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESD Act), “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.” [6] Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.” [7] The only grounds of appeal as set out in subsection 58(1) of the DESD Act are as follows: (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. [8] Section 69 of the CPP provides that 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. Submissions [9] The Applicant did not contest the finding of disability. The Applicant alleged that the General Division erred in law when applying section 69 of the CPP in that it granted payments to commence as of November 2015, when the earliest payments could start would be November 2014 pursuant to section 69 of the CPP. The Applicant noted that this appeared to be a typographical error that the Applicant wished to correct. [10] The Respondent, by email sent on February 2, 2017, at 4:43 PM to the Tribunal, indicated that the Respondent consented to the appeal and the decision sought by the Applicant, namely that the Respondent was disabled as of July 2014 with payment commencing four months later, in November 2014, pursuant to section 69 of the CPP. Analysis [11] The Respondent’s disability application was received by the Applicant on September 1, 2014. The General Division found, in its decision at paragraph 87, that the Respondent had a severe and prolonged disability as of July 10, 2014. [12] The General Division decision correctly indicated that “according to section 69 of the CPP, payments start four months after the date of disability”; however the decision went on to say that payments start as of November 2015. [13] It is clear that, if the date of disability is July 2014 as indicated by the General Division decision and accepted by both parties, then pursuant to section 69 of the CPP, the date when payment should start must be four months later, in November 2014 and not in November 2015. [14] I am satisfied that the appeal not only has a reasonable chance of success such that leave is hereby granted, but also that the appeal should be allowed. Paragraph 3(1)(a) of the Social Security Tribunal Regulations requires the Tribunal to conduct proceedings as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. In light of the consent of the Respondent, the fact that the desired relief on this appeal is to her benefit and the error appears to be typographical, I will give the decision that the General Division should have given without any further submissions or hearing. Accordingly, I find that the Respondent was disabled as of July 2014, with payment commencing four months later, in November 2014, pursuant to section 69 of the CPP. Conclusion [15] The application for leave to appeal is granted and the appeal is allowed.