Appealing Your Turned Down Canada Pension Plan (CPP) Disability Benefits Claim to the Pension Appeal Board

Posted in: CPP Disability Benefits Law- Nov 29, 2010 No Comments

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Appealing a Denied CPP Disability Benefits Claim to the Pension Appeal Board

If you have lost your CPP appeal in front of the Office of the Commissioner of Review Tribunal (OCRT) for your denied CPP Disability Benefits application then you may consider appealing to the next level.  That level is the CPP Pension Appeal Board.

No Automatic Right of Appeal

The main difference between appealing to the Review Tribunal and appealing to The CPP Pension Appeal Board is that in order to appeal to the CPP Pension Appeal Board you must obtain permission from the court to do so.  There is no automatic right to an appeal in front of the CPP Pension Appeal Board.  The permission to appeal is known as “leave to appeal”.

Section 83 of the Canada Pension Act contains most of the organizational tools needed to provide an appeal.

Section 83 (i) states that a party who is not in agreement with a decision of The Review Tribunal may apply in writing within 90 days after the date on which the party received the Review Tribunal Decision for Leave to Appeal that decision.

If Leave to Appeal is refused, written reasons must be provided by the CPP Pension Appeal Board Member who refused the leave.  Once leave to appeal has been granted, the CPP Pension Appeal Board can then hear the case upon its merits.  The Pension Appeal Board is then authorized by law to determine any question of law or fact as it relates to among other things, whether the benefit is payable.

Pension Appeal Board Hearing is More Formal

The Pension Appeal Board will then conduct a new hearing as in a Review Tribunal hearing.  One is then able to call witnesses in support of his/her case and a Minister’s Representatives may also call witnesses for the Minister’s case.

The Pension Appeal Board Hearing is characterized as being more formal than the Review Tribunal in that it is a Court of Law. There is a court clerk present to mark and record documentary exhibits, as well as all witnesses must be sworn to tell the truth.  The hearing is also more adversarial.  The Minister’s Representative at a Pension Appeal Board Hearing is a lawyer as opposed to the Minister’s Representative at a Review Tribunal Hearing who is not.

The proceedings before the Pension Appeal Board are regulated by the Pension Appeal Board Rules of Procedure, which differ from the Review Tribunal Rules in that they provide for pre-hearing motions, discovery and more particularized means of receiving non-oral evidence.

Pursuant to Section 15(1) of the Pension Appeal Rules of Procedure any party to the proceedings may apply to the Board for an order to examine the other party’s documents relating to any matter in question and that are in possession of that party or to examine for the purpose of discovery any party to the appeal.

Furthermore, pursuant to Section 16(1) of the same rules the CPP Pension Appeal Board may summon before it by subpoena any person and require that person to give evidence on or produce such documents as it deems requisite.

Witnesses can be examined orally upon oath at the hearing of a CPP Disability Benefits appeal.

The forms used for an application for leave to appeal a notice to appeal are usually appended to the Pension Appeal Rules.

Minimal legal costs may be awarded if the claimant is granted benefits.  Minimal refers to costs for the day(s) of the hearing and usually range in the area of $200 – $300 per day. As well the CPP Pension Appeal Board may award a successful CPP disability claimant for reasonable travel and living expenses.

The CPP Pension Appeals Board is required by law to prepare written reasons for its decisions.  These are sent by the Registrar of the Pension Appeals Board to the parties to the appeal, by registered mail or priority courier.

The decision of the CPP Pension Appeal Board is final and binding.  Any party to the Appeal may within 30 days seek judicial leave under Section 28 of the Federal Courts Act to appeal to the Federal Court of Appeal.

You may wish to have a lawyer represent you in the appeal of your rejected CPP disability claim. One is usually more successful at a hearing if one has a lawyer. This may be since a lawyer is able to assess the strength and weaknesses of your case in presenting you claim to the panel.

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