IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN DONALD R. HOPKINS. - and - MINISTER OF HUMAN RESOURCES DEVELOPMENT

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1 IN THE PENSION APPEALS BOARD IN RE THE CANADA PENSION PLAN BETWEEN: DONALD R. HOPKINS Appellant - and - MINISTER OF HUMAN RESOURCES DEVELOPMENT Respondent Appeal CP07997 heard in Calgary, Alberta August 25, Before: The Honourable Mr. Justice Poulin, Chairman The Honourable A. Dureault The Honourable Mr. Justice Lang Counsel: Ruth Hopkins and Tom Hopkins, agents for the Appellant Chantal Poirier for the Respondent Dureault for the Board: Appellant appeals from a Review Tribunal decision denying him a disability pension. The appeal is not so much concerned with determining whether Appellant is disabled within the meaning of the Act, but whether Appellant is by law ineligible to receive disability benefits.

2 - 2 - Appellant applied for disability benefits on September 24, 1996, following his 63 rd birthday. He was at that time in receipt of an early retirement pension since September, Section 70(3) of the Canada Pension Plan (see appendix) makes a person who is in receipt of a retirement pension ineligible to apply for a disability pension except as may be provided under Section This provision authorizes a beneficiary to request cancellation of a benefit provided the request is made in the prescribed manner and within the prescribed time interval. (A 1997 amendment introduced as ss.66(1.1) appears to no longer permit applications for disability benefits to an applicant to whom a retirement pension has commenced to be paid if the deemed date of disability is fixed on a date on or following the month for which the retirement pension became payable.) It is, therefore, clear that unless Appellant can cancel his retirement pension, he is ineligible for a disability pension. Section 46.2 of the Canada Pension Plan Regulations provides for the prescribed manner and the prescribed time intervals for cancellation.

3 - 3 - Subsection (1) permits a beneficiary to cancel the payment of a benefit at anytime within six months of its commencement. The request must be submitted to the Minister and be made in writing writing. This provision, were it not for the exception permitted by ss.(2), does appear to effectively bar Appellant s disability application since he did not apply to cancel his retirement pension within six months of the commencement of the payment of his benefits. The exception does, however, provide a narrow window of opportunity wherein the applicant may elect to cancel receipt of his retirement pension following notification of his disability determination, if he meets the following requirements: a) the date of his deemed disability is on or prior to, or within six months after the commencement of his retirement pension, and b) the cancellation request was made within 60 days from the date of notification of his deemed date of disability. (Emphasis added) The issue on this appeal is whether Appellant can avail himself of the above exception he applied for disability benefits on September 24, The earliest date for which he can be deemed disabled under the Plan is June, 1995 being 15 months before the month of his application (Section 42(2)(b)). Since this date is more than six months after the commencement of his

4 - 4 - retirement benefit payments (September, 1994), the 60-day window permitting cancellation of the retirement pension is not available to Appellant. Regardless of whether he might in fact have been disabled on or prior to, or within six months of the commencement of retirement benefits, under the legislation it is not possible to deem his disability earlier than 15 months preceding his application, namely June, Unfortunately, the Appellant appears to have been misled or misinformed regarding the specific legislation applying to the special circumstances of his case. Particularly Section 42(2)(b) of the Plan prescribing a 15-month maximum retroactivity for a deemed disability determination appears to have been completely overlooked. Since in this case the earliest possible deemed disability date effectively precludes the cancellation of Appellant s retirement pension, his appeal must be dismissed. In the circumstances, it is not necessary to consider the disability issue. DATED this 16 th day of November, (signed) A. Dureault

5 - 5 - I concur (signed) F.H. Poulin J. I concur (signed) G.F. Lang J.

6 - 6 - APPENDIX Excerpts of relevant statutory and regulatory provisions: Canada Pension Plan Section 42(2)(b): a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in prescribed manner to be the time when he became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than 15 months before the time of the making of any application in respect of which the determination is made. Section 66.1: Request to cancel benefit. (1) A beneficiary may, in prescribed manner and within the prescribed time interval after payment of a benefit has commenced, request cancellation of that benefit. Section 66.1(1.1): Exception Subsection (1) does not apply to the cancellation of a retirement pension in favour of a disability benefit where an applicant for a disability benefit under this Act or under a provincial pension plan is in receipt of a retirement pension and the applicant is deemed to have become disabled for the purposes of entitlement to the disability benefit in or after the month for which the retirement pension first became payable. Section 70(3): Effect of receiving a retirement pension. A person who commences to receive a retirement pension under this Act or under a provincial pension plan is thereafter ineligible to apply or re-apply, at any time, for a disability pension under this Act, except as provided in section 66.1 or in a substantially similar provision of a provincial plan, as the case may be.

7 - 7 - Canada Pension Plan Regulations Section 46.2: (1) A beneficiary may submit to the Minister, within the interval between the date of commencement of payment of the benefit and the expiration of six months after that date, a request in writing that the benefit be cancelled. (2) Despite subsection (1), where an applicant for a disability pension under the Act or a comparable benefit under a provincial pension plan is deemed to have become disabled for the purposes of entitlement to the disability pension or benefit and is in receipt of a retirement pension and the time of having become disabled as so deemed is on or prior to, or within six months after, the date on which the retirement pension become payable, the applicant may submit to the Minister, within the interval between the date of commencement of payment of the retirement pension and ending on the expiration of 60 days after the receipt by the applicant of notice of that determination, a request in writing that the retirement pension be cancelled. (3) The Minister shall consider a request received pursuant to subsection (1) or (2) and, according to the applicable criteria, shall grant or refuse it.