The Estate of TH v Minister of Employment and Social Development

The Estate of TH v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2022-11-28 Neutral citation 2022 SST 1266 Reference number GP-21-1086 Member Michael Medeiros Division General Division Decision Appeal dismissed Featured decisions Yes Summary: The Claimant was diagnosed with cancer in September 2019. His illness was terminal. He was admitted to hospital and into palliative care in July 2020. He passed away on August 14, 2020. The Claimant signed a Terminal Illness Application for Canada Pension Plan (CPP) disability benefits on August 11, 2020. His son mailed the application on August 13, 2020. The Minister received the application on August 24, 2020, with a disability onset date of July 19, 2019, the date the Claimant stopped working. On September 10, 2020, the Claimant’s son (and executor of his estate) reported to the Minister that his father passed away on August 14, 2020. On October 26, 2020, the Minister informed the Appellant (the estate of T.H.) that the application for disability benefits could not be approved after all, as the CPP doesn’t allow an application to be made after a person’s death. The Minister requested that the Appellant refund the overpayment. The Appellant appealed the Minister’s decision to the General Division (GD). At the GD, the only issue on appeal was whether the application for disability benefits was made before the Claimant passed away. The CPP and its Regulations set out the rules for making an application for benefits. However, they don’t specifically address the point in time an application becomes “made”. The GD proceeded to interpret the laws to see what the legislature intended. In the GD’s view, the plain and ordinary meaning of the CPP and its Regulations support the Minister’s position that the application was made when the Minister received it. An essential part of the application process is submitting it to the Minister in writing. Even if the Claimant mailed it, the Minister would have no record of the application, or even any knowledge that it is coming. The purpose and context of these laws also support an interpretation that the application was made when the Minister received it. It would not advance the purpose of CPP disability benefits to approve an application that was received after an applicant passes away. In context, it also makes sense that disability benefits don’t pass on to an estate. They are for helping disabled contributors get to retirement age with some income assistance. Their purpose no longer applies after death. The GD concluded that the Claimant wasn’t eligible for CPP disability benefits. The application was made after he passed away, at a time when he was no longer qualified. The evidence of the Claimant’s passing was a new fact that entitled the Minister to rescind its previous decision to grant the Claimant’s application. The appeal was dismissed. Decision Content Citation: The Estate of TH v Minister of Employment and Social Development, 2022 SST 1266 Social Security Tribunal of Canada General Division – Income Security Section Decision Appellant: Representative: The Estate of T. H. S. H. Respondent: Representative: Minister of Employment and Social Development Ian Sheaves Decision under appeal: Minister of Employment and Social Development reconsideration decision dated March 12, 2021 (issued by Service Canada) Tribunal member: Michael Medeiros Type of hearing: Teleconference Hearing date: November 9, 2022 Hearing participants: Appellant’s representative Respondent’s representative Decision date: November 28, 2022 File number: GP-21-1086 On this page Decision Overview Reasons for my decision Conclusion Decision [1] The appeal is dismissed. [2] The Claimant, T. H., wasn’t eligible for a Canada Pension Plan (CPP) disability pension. This decision explains why I am dismissing the appeal. Overview [3] The Claimant was diagnosed with cancer in September 2019. His illness was unfortunately terminal. He was admitted to hospital and into palliative care in July 2020. He passed away on August 14, 2020. [4] The Claimant signed a Terminal Illness Application for CPP disability benefits on August 11, 2020. His son mailed the application on August 13, 2020. The Minister received the application on August 19, 2020. The Minister granted the application on August 24, 2020, with a disability onset date of July 2019, the date he stopped working. The Claimant was sent a lump-sum payment of $11,236.54 for the previous months disability benefit. [5] On September 10, 2020, the Claimant’s son (and executor or his estate) reported to the Minister that his father had passed away on August 14, 2020. On October 26, 2020, the Minister informed the Appellant (the estate of T. H.) that the application for disability benefits could not be approved after all, as the CPP doesn’t allow an application to be made after a person’s death. The Minister requested that the Appellant refund the overpayment of $11,236.54. The Appellant appealed the Minister’s decision to the Social Security Tribunal’s General Division. [6] The Appellant says that it is unfair for the Minister to change its decision and seek repayment. The date of the application should be the date it was mailed, not the date it was received. The money was spent in good faith on the Claimant’s funeral and no funds remain. The family is struggling financially and can’t afford to repay the amount owing. [7] The Minister says that the Claimant wasn’t entitled to disability benefits because the application was made after he passed away. The Minister would not have granted the application if it had known about this important fact. The Claimant’s passing is a new fact that permits the Minister to rescind its previous decision to grant the application for disability benefits.Footnote 1 Reasons for my decision The issue on appeal: what is the date of the application? [8] The CPP says that a benefit can’t be paid unless an application has been made and payment has been approved.Footnote 2 [9] The only issue on this appeal is whether the application for disability benefits was made before the Claimant passed away. A deceased person can’t qualify for disability benefits. If the application was made after the Claimant passed away, he wasn’t entitled to the lump-sum payment. [10] There is no question that the Claimant was disabled. There is also no dispute about when the application was signed, mailed, and received, or the date that the Claimant passed away. The only question is when the application was “made”, based on the applicable law. When was the application “made”? [11] The Appellant submits that the application was made before the Claimant’s death. The Claimant signed the application and it was mailed by his son before he passed away. He did all that was required of him to make the application. Therefore, the application was made before the Claimant was deceased. [12] The Minister says that the application was made on the date that it was received by the Minister in writing, which was after the Claimant passed away. At that time, he no longer qualified for disability benefits. [13] The CPP and its Regulations set out the rules for making an application for benefits. However, they don’t specifically address the point in time that an application becomes “made.” To figure out the answer, I have to interpret these laws to see what the legislature intended. [14] The Supreme Court of Canada said that “legislative intent can be understood only be reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context.”Footnote 3 Therefore, my analysis will address: (1) the words of the provisions of the CPP and its Regulations, (2) their purpose, and (3) the broader legal context in which these laws operate. [15] The CPP is a statute that provides benefits to Canadians. Therefore, the law requires that its provisions be given a broad and liberal meaning, where any doubts are resolved in favour of the person seeking benefits (in this case, the Appellant.)Footnote 4 The words of the CPP and its Regulations [16] In my view, the plain and ordinary meaning of the words of the CPP and its Regulations support the Minister’s position that the application was made when the Minister received it. [17] The CPP and its Regulations determine what is required to make an application for disability benefits. These laws say the following about making an application: When disability benefits cease – A disability pension ceases to be payable when the beneficiary (1) ceases to be disabled, (2) starts receiving a CPP retirement pension (or provincial pension plan), (3) reaches the age of 65, or (4) dies.Footnote 5 Estate can’t apply for disability benefit – An estate may apply for a benefit that a deceased person would have been entitled to within a year of the person’s death, but not a disability pension benefit.Footnote 6 How application to be made – An application for a benefit shall be made to the Minister in prescribed manner and at the prescribed location.Footnote 7 Prescribed manner of application – An application shall be made by submitting it to the Minister in writing.Footnote 8 Minister to consider application – The Minister shall forthwith on receiving an application for a benefit consider it.Footnote 9 [18] The language of the CPP is clear – a deceased person doesn’t qualify for disability benefits. A person’s entitlement ends upon death. An estate can’t apply. An application can’t be made after a person’s death. [19] What is less clear is when exactly an application is considered “made.” However, the plain meaning of “made” or “make” supports the Minister’s position that an application is made when the Minister receives it. [20] The general definition of the word “made” or “make” describes something that is put together, created, or caused to exist. It is often a process that involves combining different components.Footnote 10 [21] The process of making an application involves several parts, including writing the application, signing it, and delivering it to the Minister. But at what point is the application made? When is it created? When does it come to exist? [22] In my view, nothing truly exists until the application is received. An application can be completed and signed, but no application is made if the person’s efforts end there. The Appellant says that mailing the application is significant. However, nothing truly exists while the mail is in transit. The Minister would have no record of the application, or even any knowledge that it is coming. There is nothing for the Minister to consider. [23] It makes sense that an application isn’t considered “made” until the Minister receives it. An essential part of the application process is submitting it to the Minister in writing. The applicant chooses how to fulfill that requirement. It can be mailed, couriered, filed online, or submitted in person at a Service Canada Centre.Footnote 11 The applicant makes that choice and bears that responsibility. The purpose of the applicable laws [24] In my view, the purpose of the applicable provisions of the CPP and its Regulations are supported by an interpretation that the application was made when the Minister received it. [25] It can be helpful to start with the preamble of an enactment when trying to determine its purpose.Footnote 12 The preamble to the CPP states that it is an “Act to establish a comprehensive program of old age pensions and supplementary benefits in Canada payable to and in respect of contributors.” Disability benefits are only one part of the program. [26] The Supreme Court of Canada said the following about the CPP’s purpose:Footnote 13 The CPP is to “provide social insurance to Canadians who experience a loss of earnings owing to retirement, disability, or the death of a wage-earning spouse or parent.” It isn’t “a social welfare scheme. It is a contributory plan in which Parliament has defined both the benefits and the terms of entitlement.” Benefits are only payable to contributors. [27] Disability benefits serve a specific purpose within the CPP’s broader social insurance program. Disability benefits aim to provide assistance to contributing Canadians who can’t work because of a disability, but haven’t yet started to receive a retirement pension. Disability benefits are therefore a form of partial income replacement for those who become disabled and need a way to help bridge their wage earning years and their retirement pension years. [28] It would not advance the purpose of CPP disability benefits to approve an application that was received after an applicant passes away. The benefit exists to help disabled Canadians make ends meet before they can receive a retirement pension. It doesn’t serve a purpose after death. The context of these laws [29] The context in which disability benefits operate further supports an interpretation that the application was made when the Minister received it. [30] Disability benefits are part of a comprehensive program of pensions and benefits created by the CPP. The purpose of the disability benefit can only be fully understood by knowing how it fits within this broader social insurance program. [31] The following provides important context to the operation of disability benefits: Estates can’t apply for disability benefits - An estate can apply for other benefits that would have been payable to a deceased contributor, but not disability benefits. They are specifically excluded by the provisions of the CPP.Footnote 14 Other benefits are available after death – Other benefits exist to assist the survivors of a disabled contributor that passes away, such as a survivor’s pension, children’s benefit, and death benefit.Footnote 15 [32] It makes sense that disability benefits don’t pass on to an estate. They are for helping disabled contributors get to retirement age with some income assistance. Their purpose no longer applies after death. Instead, other benefits under the CPP are there to assist those they leave behind. Other cases [33] Many past Tribunal decisions have held that an application is made when the application is received by the Minister.Footnote 16 [34] The Federal Court in Mason v CanadaFootnote 17 suggested that the timing of mailing an application is a relevant circumstance in the making of an application. However, the facts of that case are different. In Mason, the Court found that there was no evidence of when the application was actually received by the Minister, and the evidence was that the application was mailed “well before the due date.”Footnote 18 In the present case, there is no dispute about when the application was received by the Minister. Potential unfairness [35] In my view, any question about unfairness in this case has to do with its unfortunate facts and not with the law itself. In the unique circumstances of this case, the Minister approved the application before learning that the Claimant had passed away. The Claimant’s son received the disability payment and spent it in good faith on his father’s funeral. He didn’t know that his father wasn’t entitled to disability benefits. He says that the estate has no funds to repay, and it would create real hardship for his family to repay the amount owing. [36] In my view, the following points fully address the Appellant’s concerns about fairness: The debtor in this case is the Claimant’s estate, not his son or family. The CPP allows the Minister to exercise its discretion and remit the amount owing in certain circumstances, including when it can’t be collected within the reasonably foreseeable future, or would cause undue hardship.Footnote 19 I understand that the Minister will be in touch with the Appellant for the required documentation to assess whether the overpayment can be remitted once this appeal is finally concluded.Footnote 20 Conclusion [37] I find that the Claimant wasn’t eligible for CPP disability benefits. The application was made after he passed away, at a time when he no longer qualified. The evidence of the Claimant’s passing was a new fact that entitled the Minister to rescind its previous decision to grant the Claimant’s application. [38] This means the appeal is dismissed. Footnotes Footnote 1 See section 81(3) of the CPP, which states that the Minister may, on new facts, rescind or amend a decision made by him or her. See also, Canada (Attorney General) v MacRae, 2008 FCA 82 at para. 16; Higgins v Canada (Attorney General), 2009 FCA 322 at para. 36; and Mazzotta v Canada (Attorney General), 2007 FCA 297 at para. 45. Footnote 2 See section 60(1) of the Canada Pension Plan. Footnote 3 See Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para. 118. Footnote 4 See Villani v Canada (AG), 2001 FCA 248. See also section 12 of the Interpretation Act, which states that every enactment that is deemed remedial shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects. Footnote 5 See section 70(1) of the Canada Pension Plan. Footnote 6 See section 60(2), (2.1), and (4) of the Canada Pension Plan. Footnote 7 See section 60(6) of the Canada Pension Plan. Footnote 8 See section 43 of the Canada Pension Plan Regulations. Footnote 9 See section 60(7) of the Canada Pension Plan. Footnote 10 See https://www.merriam-webster.com/dictionary/make. Footnote 11 See https://www.canada.ca/en/services/benefits/publicpensions/cpp/cpp-benefit/apply.html. Footnote 12 See section 13 of the Interpretation Act, which says that the preamble of an enactment shall be read as a part of the enactment intended to assist in explaining its purpose and object. Footnote 13 See Granovsky v Canada (Minister of Employment and Immigration), 2000 SCC 28 at para. 9. Footnote 14 See section 60(2.1) of the Canada Pension Plan. Footnote 15 See the Government of Canada website for general information about CPP benefits: https://www.canada.ca/en/services/benefits/publicpensions/cpp.html. Footnote 16 See for instance, the often cited case Galay v Minister of Social Development (June 3, 2004), CP 21768 (PAB). See also, J.B. v Minister of Employment and Social Development, 2017 SSTGDIS 178 at para. 39. Footnote 17 See Mason v Canada (Employment and Social Development), 2017 FC 358. Footnote 18 See Mason v Canada (Employment and Social Development), 2017 FC 358 at paras. 15 to 18. Footnote 19 See section 66(3) of the Canada Pension Plan. Footnote 20 See letter from Service Canada, dated September 20, 2022, at GD9. The hearing was originally scheduled for July 20, 2022. The hearing was adjourned so the Appellant could write to Service Canada and request that they remit the overpayment. Service Canada responded by letter stating that this appeal must be decided before they would consider remitting the overpayment.