CPP Disability Appeal Dismissed for Untimely Filing and Lack of New Evidence

Citation: [NAME]  v  [NAME] , 2026  [NAME]  277 Social Security Tribunal of Canada Appeal Division Extension of Time and Leave to Appeal Decision Applicant: [redacted] Respondent: [redacted] Decision under appeal: General Division decision dated December 5, 2025 (GP-25-475) Tribunal member: [NAME] Decision date: June 15, 2026 File number: AD-26-352 On this page Decision Overview Issues The Claimant’s application was late, but I’m extending the time for him to file it The Claimant hasn’t met the legal test to get permission to appeal Conclusion Decision [ 1 ] I’m granting D. O. an extension of time to file his application with the Appeal Division. [ 2 ] But I’m not giving him leave (permission) to appeal the General Division decision. This means his appeal won’t go forward. Overview [ 3 ] D. O. is the Claimant in this case. He has applied to appeal a General Division decision. Footnote 1 I’ll call this his application. The Tribunal received his application after the filing deadline. But I have extended the time for him to file it. [ 4 ] The Minister fast-tracked the Claimant’s application and granted him a [NAME] ( [NAME] ) disability pension. Footnote 2 It decided the onset of his disability was April 2022. Later, [NAME] reviewed his case because information from the Canada Revenue Agency showed he had employment income. The Minister decided to stop his disability pension because he no longer met the [NAME] disability test. Footnote 3 [ 5 ] He appealed that decision to this Tribunal’s General Division. The General Division decided the Claimant no longer qualified for a disability pension as of September 2022. It concluded his disability stopped being severe as of this date. It found he was only off work temporarily in 2022. And he went back to work and had substantially gainful earnings in 2022, 2023, and 2024. Footnote 4 [ 6 ] The Claimant disagrees. He argues the General Division got the facts wrong. And he sent new evidence with his application. [ 7 ] Unfortunately for the Claimant, I can’t give him permission to appeal. There’s no arguable case the General Division made a factual error. And the evidence he sent with his application isn’t relevant or arguably relevant to whether he was able to work and earn a living in 2022. [ 8 ] I recognize the Claimant has lived with a serious medical condition for many, many years. And I appreciate he has a new cancer diagnosis. But his appeal was about whether he no longer qualified for a [NAME] disability pension in 2022. If he can no longer work and earn a living now, he can make a new application for a [NAME] disability pension. And the Minister has the power to fast-track his application if needed. Issues [ 9 ] I will decide three issues. Was the Claimant’s application late, and if it was, should I extend the time for him to file it? Is there an arguable case the General Division made a factual error in making its decision? Does the Claimant’s application set out evidence that wasn’t before the General Division? The Claimant’s application was late, but I’m extending the time for him to file it [ 10 ] The Claimant says he doesn’t remember when he got the General Division decision. Footnote 5 He says he didn’t receive the email the General Division sent him on December 8, 2025. Footnote 6 He also says he might have deleted that email by mistake. Footnote 7 [ 11 ] I don’t accept he didn’t receive the decision when the Tribunal emailed it to him. During his General Division appeal, the Tribunal only sent him documents by email. And he regularly responded to those emails. Nothing in the Tribunal’s files shows the Tribunal’s December 8 email bounced back. And nothing shows it emailed the decision to him a second time. Or sent it to him by regular mail or another way. The fact he applied to appeal the General Division decision tells me it is more likely than not he received the decision with the Tribunal’s December 8 email. [ 12 ] The Tribunal rules say I can presume he received the General Division decision the next business day—December 9, 2026. Even if I accept he deleted the Tribunal’s email, this doesn’t rebut the presumption. He had to receive the email before he could delete it. So, I find the Tribunal communicated the General Division decision to him in writing on December 9. Footnote 8 [ 13 ] The Claimant had 90 days to file his application to appeal—by March 9, 2026. The Tribunal received his application on April 28, 2026. This is what the date stamp on the bottom of each page says. I have no reason to doubt that date. So, I find his application was late. [ 14 ] But I’m extending the time for him to file it to April 28, 2026. Footnote 9 Because he gave a reasonable explanation for the delay. Footnote 10 He says he had surgery and an MRI. Footnote 11 I have no reason to doubt this. Or doubt these health-related issues got in the way of filing his application on time. [ 15 ] Next, I will decide whether to give him permission to appeal the General Division decision. The Claimant hasn’t met the legal test to get permission to appeal The permission to appeal test [ 16 ] There is no automatic right to appeal a General Division decision. The Claimant has to get permission for his appeal to go forward. [ 17 ] I will give him permission if he raises an arguable case the General Division made one of these errors. Footnote 12 didn’t respect natural justice made an error about its power to decide an issue (called a jurisdictional error) made a legal error, a factual error, or a mixed error of fact and law in making its decision [ 18 ] I will also give the Claimant permission if his application sets out evidence the General Division didn’t have. Footnote 13 I will call this new evidence and the new evidence test. To meet this test, the new evidence has to be relevant or arguably relevant to an issue in his appeal. Footnote 14 No arguable case the General Division made a factual error The test for a factual error and the Claimant’s arguments [ 19 ] The General Division makes a factual error when it reaches a factual finding by ignoring or misunderstanding relevant evidence. Relevant means evidence that helps to show whether someone meets a legal test in their appeal. [ 20 ] In the Claimant’s appeal, the legal issue was whether the Minister showed he no longer met the [NAME] test to get a disability pension. Under that test, a person’s disability has to be severe and prolonged. A disability is severe only if it makes a person incapable regularly of pursuing any substantially gainful occupation. The law says an occupation is “substantially gainful” when the person’s annual salary or wages meet or exceed the maximum [NAME] disability pension for that year. Footnote 15 [ 21 ] The courts have said the severe disability test is about a person’s capacity to work and earn a living doing any type of work—not their diagnosis, severity of impairments, or level of suffering. Footnote 16 Their impairments and suffering are legally meaningful only if they negatively affect the person’s employability. [ 22 ] The Claimant says the General Division got these facts wrong. Footnote 17 The doctor said he couldn’t have more than two rounds of chemotherapy. He also went through surgery and radiation. His work isn’t physical—he sits and waits for the garbage truck to pick up. And it got his pay and hours wrong. The Claimant hasn’t shown an arguable case the General Division ignored or misunderstood relevant evidence [ 23 ] The General Division decision shows me the General Division understood the Claimant’s job and job duties were not physically demanding. And considered those facts when it made its decision. The General Division didn’t specifically mention the Claimant’s job involved sitting and waiting for the garbage truck. But it did consider the Claimant’s testimony he worked as a superintendent/janitor. Footnote 18 And his job duties were to answer people’s questions and call police if there is a problem. It considered this evidence when it decided whether his job was benevolent or a real job that provided value to his employer. Footnote 19 [ 24 ] The General Division considered evidence about the Claimant’s chemotherapy treatment, work hours, and income. It didn’t ignore or misunderstand that evidence. It weighed it. Then made these factual findings. Despite the Claimant’s functional limitations, he was only off work temporarily in 2022. Footnote 20 Because chemotherapy caused fatigue, he had it at night so he could work during the day. And once he got used to it, it didn’t really bother him. Footnote 21 By September 2022, he had returned to work and had been working for at least 3 months. Footnote 22 [ 25 ] The General Division recognized there was contradictory information about his employment hours (part-time versus full-time). It found that contradiction didn’t matter. What mattered was whether he returned to work and earned a substantially gainful income. Footnote 23 [ 26 ] The General Division also recognized there was contradictory information about his employment income in 2022, 2023, and 2024. Footnote 24 It included a table with this evidence from three sources (the Minister, the record of contributions, and the Claimant’s testimony). [ 27 ] The General Division found the Claimant earned more than the substantially gainful amounts in 2022, 2023, and 2024. What the Minister said about his employment income in 2022 and 2023 was almost identical to the Claimant’s evidence. And both parties’ evidence says his income was above the substantially gainful amount in those two years. This supports the General Division’s conclusion his disability was no longer severe as of September 2022. [ 28 ] The General Division didn’t explain why it decided the Claimant’s income was substantially gainful in 2024. The Minister said he made over $29,000, well above the substantially gainful amount. While the Claimant testified he earned $18,929, which was below the substantially gainful amount. But this doesn’t show an arguable case the General Division made a factual error. Legally, the Claimant’s income in 2024 wasn’t relevant. It had no bearing on the outcome. That’s because the General Division found he no longer met the [NAME] disability definition in September 2022. [ 29 ] The General Division found the Claimant returned to work in June 2022. The Minister calls this a three-month work trial. Footnote 25 The General Division decision shows me it accepted this work trial was successful. And accepted his disability was no longer severe as of September 2022. [ 30 ] To summarize, the Claimant hasn’t shown an arguable case the General Division ignored or misunderstood relevant evidence about his treatment, functional limitations, hours, or his income during 2022. This year was most relevant to whether his disability continued to be severe. And shows me the General Division’s decision is supported by the evidence. The Claimant’s evidence doesn’t meet the new evidence test because it’s not relevant or arguably relevant [ 31 ] The General Division had to decide whether, and if so when, the Claimant no longer met the [NAME] disability test. [NAME] decided he no longer met the test as of September 2022. [ 32 ] The evidence of the Claimant’s rectal cancer diagnosis in 2026 isn’t relevant or arguably relevant to whether he no longer met the [NAME] disability test in 2022. Footnote 26 That evidence is about his medical condition now—not back then. [ 33 ] The same reasoning applies to the evidence he got hearing aids in 2026. Footnote 27 And it applies to follow-up reports about the status of his brain tumour in 2025 and 2026. Footnote 28 [ 34 ] The Claimant also sent a clinical note from a neurologist, dated October 31, 2001. It doesn’t say anything meaningful about whether he had functional limitations that prevented him from regularly working and earning a living in 2022. In other words, the 2001 clinical note isn’t relevant or arguably relevant to the legal issue in his appeal. [ 35 ] To summarize, the evidence the Claimant sent with his application doesn’t meet the new evidence test. Because it’s not relevant or arguably relevant to an issue in his General Division appeal. So, I can’t give him permission to appeal based on that evidence. Conclusion [ 36 ] The Claimant hasn’t shown an arguable case the General Division made an error. And the evidence he sent with his application doesn’t meet the new evidence test. [ 37 ] This means I can’t give him permission to appeal. And his appeal won’t go forward. Footnotes Footnote 1 See AD1 and AD3. Return to footnote 1 referrer Footnote 2 See the Minister’s submissions at GD5-2. Return to footnote 2 referrer Footnote 3 Section 70(1)(a) of the [NAME] ( [NAME] ) says a disability pension ceases to be payable with the payment for the month the person ceased to be disabled. Return to footnote 3 referrer Footnote 4 See sections 42(2) and 44(2) of the [NAME] . Return to footnote 4 referrer Footnote 5 See AD1-1. Return to footnote 5 referrer Footnote 6 See AD1B-1. Return to footnote 6 referrer Footnote 7 See AD1B-1. Return to footnote 7 referrer Footnote 8 Section 57(1)(b) of the Department of Employment and Social Development Act ( DESD  Act) says an application for leave to appeal must be made within 90 days “after the day on which the decision and reasons are communicated in writing” to a person. This was the section number from the version of the DESD  Act in force when the Claimant received the General Division decision. Return to footnote 8 referrer Footnote 9 See section 57(2) of the DESD  Act. Return to footnote 9 referrer Footnote 10 See sections 27(1) and 27(2) of the Social Security Tribunal Rules of Procedure . Return to footnote 10 referrer Footnote 11 See AD1B-1. Return to footnote 11 referrer Footnote 12 See sections 58.1(a) and (b) of the Department of Employment and Social Development Act ( DESD  Act). The courts have said an “arguable case” of an error is one that discloses a reasonable chance of success. [NAME]  v  Canada (Attorney General) , 2024  FC  1793 at paragraph 32; [NAME]  v  Canada (Attorney General) , 2026  FC  36 at paragraph 64 Return to footnote 12 referrer Footnote 13 See section 58.1(c) of the DESD  Act. Return to footnote 13 referrer Footnote 14 [NAME]  v  Canada (Attorney General) , 2026  FC  36 at paragraphs 67 to 69. Return to footnote 14 referrer Footnote 15 See section 68.1 of the [NAME]. Return to footnote 15 referrer Footnote 16 [NAME]  v  Canada (Attorney General) , 2025  FCA  38 at paragraph 16; [NAME]  v  Canada (Minister of Social Development) , 2008  FCA  33 at paragraph 14 Return to footnote 16 referrer Footnote 17 See AD1-2. Return to footnote 17 referrer Footnote 18 See paragraph 40. Return to footnote 18 referrer Footnote 19 See paragraphs 37 to 42 of the General Division decision. Return to footnote 19 referrer Footnote 20 See paragraph 27 of the General Division decision. Return to footnote 20 referrer Footnote 21 See paragraph 35 of the General Division decision. Return to footnote 21 referrer Footnote 22 See paragraph 36 of the General Division decision. Return to footnote 22 referrer Footnote 23 See paragraph 34 of the General Division decision. Return to footnote 23 referrer Footnote 24 See paragraph 36 of the General Division decision. Return to footnote 24 referrer Footnote 25 See paragraph 6 of the General Division decision. Return to footnote 25 referrer Footnote 26 See AD1-8. Return to footnote 26 referrer Footnote 27 See AD1-9 to AD1-13. Return to footnote 27 referrer Footnote 28 See AD1-14, AD1-15. Return to footnote 28 referrer