Canada Pension Plan disability Appeal Division: Getting permission to appeal
If you agree with everything in the General Division decision, there’s no reason to appeal. If you disagree with the decision, you can appeal, but first you’ll need to get permission to appeal from the Appeal Division. The Appeal Division can only grant permission for specific reasons.
To get permission you have to have a reasonable argument based on at least 1 of the following:
- The General Division didn’t follow a fair process
- The General Division acted beyond its powers or didn’t exercise its powers
- The General Division got the law wrong, or it got the facts wrong, or it made an error of mixed law and fact
Or, you have to set out evidence that the General Division didn’t have.
Criteria to get permission to appeal
The criteria for getting permission to appeal are set out in section 58.1 of the Department of Employment and Social Development Act.
The legal wording for the criteria is technical. The Appeal Division member has to follow the wording of the law, interpret it, and apply it to your situation.
Here’s the legal wording for each of the criteria with a plain language explanation. Examples are provided, but they don’t cover every possible scenario.
The General Division didn’t follow a fair process
Legal wording | The General Division failed to observe a principle of natural justice. |
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Plain language wording | The General Division didn’t follow a fair process. |
What’s natural justice?
Natural justice is about fair process. This includes things like the right to see all the evidence, the right to make your case, and the right to an impartial (unbiased) decision-maker.
Here are examples of mistakes the General Division could make:
Example: You didn’t get all the documents
The General Division didn’t give Rachael copies of all of the documents Service Canada used to make its reconsideration decision or that it gave the SST for the hearing.
Example: The hearing happened without you
The General Division held a hearing, but Imani didn’t get a Notice of Hearing telling her about it.
The General Division acted beyond its powers or didn’t exercise its powers
Legal wording | The General Division acted beyond or refused to exercise its jurisdiction. |
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Plain language wording | The General Division dealt with an issue it didn’t have the power to deal with. Or it didn’t deal with an issue it was supposed to deal with. |
What’s jurisdiction?
Jurisdiction is the SST’s legal power (authority) to deal with a dispute or issue. There are some things the SST has the power to decide, and some things it doesn’t.
Here are examples of mistakes the General Division could make:
Example: The General Division considered unsuccessful applications made earlier
Omar applied for Canada Pension Plan (CPP) disability benefits in 2015. Service Canada turned down his application. He applied again in 2019. This time, Service Canada accepted his application and gave him 1 year of backdated benefits. That’s the maximum the law allows. Omar appealed the 2019 decision to the General Division. The General Division decided that he should get benefits based on his first application. That was a mistake. The General Division only had the authority to deal with Omar’s second application.
Example: The General Division didn’t decide an issue under appeal
Service Canada decided that Cheryl wasn’t entitled to the disability pension or the post-retirement disability benefit (PRDB). Cheryl appealed to the General Division. The General Division decided that Cheryl could not get the disability pension because she had already started getting her retirement pension. But the General Division didn’t decide whether Cheryl should get the PRDB. That was an error of jurisdiction. The General Division had to decide both issues that Cheryl had properly appealed.
The General Division got the law wrong, or it got the facts wrong, or it made an error of mixed law and fact
Legal wording | The General Division erred in law, in fact, or in mixed law and fact in making its decision. |
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Plain language wording | The General Division didn’t interpret or apply the law correctly or it got the facts wrong. |
What’s an error of law?
An error of law happens when the General Division:
- makes a decision using part of the legislation (laws from Parliament) that doesn’t actually apply to your situation
- makes a decision using an interpretation of case law (established law from a court or tribunal) that doesn’t apply to your situation
- doesn’t apply the correct law
- uses the correct law, but misunderstands what it means
Here’s an example of a mistake the General Division could make:
Example: The General Division used the wrong legal test
Aaron applied for a CPP disability pension. He said he could not work as a construction worker anymore because of his disability. But he said he could do office work. His medical reports confirm this. The law says that you can get a disability pension if you’re unable to regularly do some kind of work you could earn a living from.
The General Division decided that Aaron should get a disability pension because he can’t work as a construction worker. But it didn’t look at whether he could do other types of work. The General Division didn’t consider all the requirements of the law. This is an error of law.
What’s an error of fact?
The General Division has to review and consider all the evidence before deciding what facts it accepts. This is called “finding the facts” or “making a finding of fact.” When the General Division makes a finding of fact that’s important to its decision, but gets the fact wrong, that’s an error of fact.
Here’s an example of a mistake the General Division could make:
Example: The General Division mixed up important dates
To get a CPP disability pension, Eva must show that she became disabled before the end of 2001. The General Division decided that she was disabled, but only from 2007. It based its decision on a medical report that it says was from 2007. But the report was from 2001 and spoke of Eva’s conditions in 2001. The General Division mixed up important dates on file and mistakenly found that Eva became disabled in 2007 instead of 2001. That’s an error of fact.
What’s an error of mixed law and fact?
An error of mixed law and fact happens when the General Division uses the correct law, but doesn’t apply it properly to the facts of your case.
Here’s an example of a mistake the General Division could make:
Example: The General Division didn’t correctly apply the law to the facts
Maria immigrated to Canada. She didn’t finish high school and speaks little English or French. She worked in housekeeping for the last 20 years. At the age of 63, Maria had an accident at work and she hasn’t been able to return to her old job. The General Division decided that Maria didn’t qualify for a disability pension because she could easily find a different job.
The General Division made a mixed error of fact and law because of the way that it applied the facts to the law. The General Division should have recognized that Maria’s personal circumstances made it very difficult for her to retrain for a different job.
You have evidence the General Division didn’t have
Legal wording | Evidence that was not presented to the General Division. |
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Plain language wording | You have a new document or new testimony that the General Division didn’t have. |
Example: A document the General Division didn’t have
Rupinder found a medical report that she didn’t send in for her General Division appeal because she couldn’t find it in time and had lost hope of finding it.