Co-authored by Sheila Minnie and Rachel Leck
Many of our readers may have heard of Bill C-38, the Federal Government’s Omnibus Bill that makes changes to a wide variety of statutes. There has been widespread media coverage, for example, of the possible negative impact of changes to our environmental laws. What you may not have heard is that the Omnibus Bill has also completely changed the appeals process for decisions regarding benefits under the Employment Insurance Act, the Canada Pension Plan and the Old Age Security Act. These changes take effect April 1st – April Fools Day – but the potential impact on applicants is no joke.
Current Regime for CPP Disability Benefits
Suppose you have applied for but been denied CPP Disability Benefits. Under the current system, if you disagree with this initial decision, you can apply to the HRSDC (Human Resources and Skills Development Canada) for a reconsideration. This is an automatic right under the current system. In the event that you are still not satisfied with the outcome, you can then appeal to the Review Tribunal. Again, this is an automatic right under the current system. Typically at this stage, a three member panel, including one lawyer and one qualified health professional, would hold an in-person hearing, consider the evidence and make a decision.
If you disagree with the decision of the Review Tribunal, a further appeal could be made to the Pension Appeals Board (PAB), provided leave to appeal (permission to appeal) is granted by the Board. Hearings before the Pension Appeals Board are adjudicated by a current or former Superior Court judge. The PAB grants each applicant a new hearing, also known as a “hearing de novo”. In practical terms, this means the adjudicator hears all of the evidence as new evidence or testimony, and makes her or his decision based on the evidence presented at the time of the hearing.
Changes Effective April 1, 2013
As of April 1st, all new appeals (after the reconsideration stage) will be heard by the newly created Social Security Tribunal (SST) (For appeals prior to April 1, 2013, there are transition provisions in effect – for more detailed information, visit the Social Security Tribunal website).
This new SST will have two divisions. The General Division will have an Income Security Section to hear appeals regarding CPP Disability benefits and Old Age Security benefits. The Appeal Division will decide appeals of decisions of the General Division. While the divisions within the SST may seem similar to the current system, there are important differences, including the following:
- there is no automatic right to appeal to the General Division of the SST – instead, the SST must dismiss an appeal if it is satisfied that the appeal has no reasonable chance of success – this is a called a summary dismissal and takes place without a hearing
- a hearing at the General Division of the SST is heard before 1 person, who will have access to legal and medical advisors/experts – there is no requirement that the person hearing the appeal be a lawyer or a medical professional
- hearings may be conducted in a variety of ways, including through written questions and answers, by video or teleconference or in person
- members of the Appeal Division are no longer required to be judges or former judges
- there are limited grounds on which an appeal may be made to the Appeal Division from the General Division
- the hearing at the Appeal Division is not a new hearing and therefore, in general, no new evidence or testimony can be presented
While it remains to be seen how these changes will impact individual applicants, it seems clear that it will be extremely important that sufficient materials and evidence is provided with the initial application given the ability for a summary dismissal and the fact that the hearing before the Appeal division is no longer a “hearing de novo”.
Contact Ontario’s Injury Lawyers
At Ferguson Barristers, our lawyers routinely represent clients at the various stages of a CPP Disability claim. We have the expertise and knowledge to ensure your rights are protected and that every available claim is being advanced on your behalf. If you have been denied CPP Disability benefits, contact our office for a free initial consultation with one of our lawyers by calling toll-free 800-563-6348 or clicking here to complete our online form.