If your CPP disability benefits have been denied at the Reconsideration, your next step is the Social Security Tribunal hearing. But, you might not know what that looks like, and you might be worried. And rightfully so! There isn’t a lot of information online about the SST hearings.
In this article, we will explain what to expect at the Social Security Tribunal hearing, how to prepare or it, what documents you’ll need, mistakes to avoid, and more! Hopefully, this will help take some pressure off if you have one coming up.
This article is part of our Ultimate Guide to CPP Disability Benefits.
What is the Social Security Tribunal of Canada?
Before we jump into the details, let’s address the obvious: what even is the Social Security Tribunal of Canada?
The Government of Canada website gives this incredibly dense definition:
“The Social Security Tribunal of Canada (Tribunal) is an independent administrative tribunal that makes quasi-judicial decisions on appeals related to the Employment Insurance Act, the Canada Pension Plan, and the Old Age Security Act.”
Hopefully, we can make that a bit easier to understand. Let’s dive in.
Is the Social Security Tribunal the Same as Service Canada?
This is a question we get a lot. In short, the answer is no. The CPP disability process starts with Service Canada. Service Canada works directly with the government to administer the CPP disability program. You submit your application to them and if it gets denied, you do your first appeal there, too. If your application is denied and an internal reconsideration appeal is denied, then you go to the Social Security Tribunal (SST).
The SST is a special type of court. It’s set up by the government exclusively to make final decisions on CPP disability claims. It is set up by the same government department that oversees CPP disability. But, the SST has special rules that keep it at arm’s length from Service Canada. So, it’s an independent body, and the two have no real contact or interaction with each other.
The decisions made at the Social Security Tribunal are binding, which just means that you have to follow the decision, and so does Service Canada.
Is the Social Security Tribunal court?
The SST is a type of court, but it’s less formal than what you might think. It holds hearings, which are a form of trial. It’s called a hearing because the Tribunal will hear from the people involved. You show up before a judge. You and Service Canada each tell your side of the story and present your case on why your claim should be approved or denied. A judge makes a final decision.
The Social Security Tribunal has two levels
The last thing to know is that there are two levels of the Social Security Tribunal: the General Division and the Appeals Division. I’ll explain them both below.
Social Security Tribunal General Division
The first stage of the Social Security Tribunal is the General Division. All appeals start here, and can only proceed after you get denied at the Reconsideration stage.
Usually, when we refer to a hearing at the SST, it’s this one. The General Division is a true hearing. This is the type of court proceeding that people expect: it’s like a mini trial. You give verbal testimony, tell your story, gather and present your new documents. A judge or adjudicator listens and asks questions.
It’s easy to get into a routine doing internal appeals with Service Canada before you get to the Social Security Tribunal level. If you make a mistake, you can submit new documents and fix it. This stops at the General Division hearing.
This is the most important appeal of your whole CPP disability claim. The General Division hearing is the last chance for you to tell your story. Therefore, you should focus 100% of your efforts here. Often, the reason you’ve been denied is that you forgot to include vital information, or failed to present your case properly.
Social Security Tribunal: Appeal Division
If the judge issues an unfavourable decision at the General Division, there is a second level of appeal. As you might imagine, your next step would be the Social Security Tribunal Appeal Division.
The first thing to know is that you don’t automatically have a right to go to the Appeal Division. You have to apply for permission.
One of the most important things to note is that this is not a new hearing. The Appeal Division is different. You can’t tell your story again or submit new documents.
In fact, you can only appeal the previous decision on 3 grounds.
1) Show that the General Division failed to follow the laws and rules of natural justice and fairness
This is extremely hard to do. Actually, it’s basically impossible unless you had a rogue judge in your General Division hearing who simply doesn’t care about keeping their job. Essentially, if you got a hearing and the opportunity to speak and present your case, you have been treated fairly.
2) Prove that the judge made an error of law
An “error of law” doesn’t mean that you simply don’t agree with the judge’s decision. “I’m obviously disabled, so it must be an error” is not something you can appeal. This means they applied the wrong legal principles, or have incorrectly applied the right legal principles. These judges typically have a legal background, plenty of training and experience, and don’t often make mistakes like this. It’s very hard to overturn a decision this way. We have done it, but most of these judges are very professional.
3) Prove that the judge has made an error of fact
In this case, you must prove that the judge made an error of fact in a perverse or capricious manner, without regard to the material before it. The factual error has to be so bad that it affects the outcome. So, getting a name or date wrong would not be serious enough. An error of fact has to go right to the heart of the matter and be clearly factually wrong — not just interpreted incorrectly.
For example, we had a case once where the judge said that no medical professional said that the applicant was disabled before the end of their minimum qualifying period. However, there was actually a report in the file that stated the opposite, and the judge shouldn’t have written that. They overlooked the report where that information was provided. We got it overturned on that basis.
These mistakes are rare. This one in particular was “perverse” because there was a report that stated exactly the opposite of what the judge said. If the judge said they reviewed the report and found that the person was not disabled, that would have been a different story. We would not have been able to appeal that.
The appeal division is very difficult to succeed at. We don’t represent people in this appeal unless we handled the first hearing. This is because without the proper foundation and all the facts about the case, it’s an uphill battle to win at the SST Appeal Division.
We’ve discussed the different divisions, so let’s dive into how a hearing actually works.
What to Expect: How a CPP Disability Social Security Tribunal Hearing Works
The hearing is through the General Division of the SST. It’s usually around 90 minutes long, with a clear beginning, middle and end. These hearings usually take place over a videoconference — even before 2020, they were rarely in person. Zoom video conference is the preferred method. So, that’s the method we will talk about in this section.
To be clear, we are writing from a representative’s point of view. Some things might vary slightly if you’re representing yourself.
Before the CPP disability SST hearing
Either the Social Security Tribunal or your representative will email you the Zoom meeting link and password, and you log in. You have to be in a room, alone, preferably with good lighting and a strong internet connection.
Related reading: 9 Tips for Teleconference Hearings
The first 15-20 minutes will be the judge welcoming everyone and giving the lay of the land. They explain what will happen, and touch on the law and standards that they have to follow. If you’re representing yourself, they will probably go into a bit more detail about how everything is going to work.
The judge will make sure everyone has a copy of the hearing file. This is the official document record for your case. It includes submissions, new documents, and anything that Service Canada has included. Every page will have official stamps and page numbers, and this file will be the same for everyone. They will be referencing it a lot during the hearing.
We prefer that we and our clients have a paper copy of the hearing file. In fact, we always print and send our clients a paper copy.
Once all of the housekeeping is taken care of, the judge will ask if you have any questions or opening statements. You will get sworn in, which means you are under oath to tell the truth.
Now it’s time to get started. Your representative will step in and make opening statements. For every CPP disability SST hearing, our lawyers like to give the judge an outline of the presentation to come. This lets them know what to expect and makes it easier to receive the information when it comes. You can usually see the relief on the judge’s face when they recognize that the lawyer isn’t just going to ramble on for the next 75 minutes. We always try to address work history and then the red flags from the file that we anticipate will be the biggest questions for the judge.
Sometimes, after these opening statements, the judge will ask a question. Take note of this — literally write it down — and ask if there’s anything else. The judge’s questions are helpful hints at what they want to know about.
Next up is sharing your information and actually making your presentation. This is easy with a representative because they will lead you through it with questions. When we represent clients, we like to use the signposting method. We will tell you the topic that we want you to speak on, and you will speak on it without going off course.
If you’re representing yourself at the CPP disability SST hearing, you really have to try to be disciplined. Approach your presentation in chunks, and segment it into topics. The topics will be different because everyone has different “red flags” to address in their case. You need to compartmentalize, talk about specifics, and move through your presentation in a logical way.
At the end of each topic, pause and ask the judge if they have questions. They often do.
Usually you testify first, and bring in witnesses afterwards, if you have them. They can come in first if there are time conflicts, but this is rare. Witnesses cannot listen to what you say when you testify. This is easy when everybody attends remotely on Zoom. But, if your witness is a spouse who lives with you, for example, you have to make sure they aren’t listening in when you testify. If the judge gets any sense that they have listened and are tailoring what they say to your story, you will immediately become less credible. You could lose your case when you wouldn’t have lost otherwise.
Witnesses are not always good or necessary for the Social Security Tribunal hearing. We have had witnesses go off on tangents and lose cases before. If a lawyer or representative says that you don’t need a witness, trust them. Piling on witnesses isn’t always helpful for the case.
When you are done, ask the judge if they have any questions before your closing statement. We always encourage this interaction. They usually have some questions, and you just have to do your best to answer. There are no “standard” questions — they will depend on the presentation. They might want to know if you have any medical updates, or your responses to any of the red flags they identified. For example, if you refused treatment or left treatment early, they will need you to comment. They don’t want excuses. Usually the best answer here is to admit that you were wrong and tell them what you did to make it better — but that’s another article.
At this point, you or your lawyer can do closing statements — here’s what we’ve heard, here’s what the law is, and here’s why this claim should be approved. You don’t need to paint Service Canada as the villain, but try to show how they were wrong in their assessment. Maybe they didn’t have all the information or hear this new testimony.. Closing statements should be short — 5-10 minutes, maximum — and hit the key points.
You might prepare your closing statement ahead of time, but modify it slightly based on what happens during the hearing. The judge’s questions will reveal what they’re thinking, and what their inclinations are about your claim. If their concerns aren’t the ones you anticipated, you can ask for a 5-minute break to compose yourself, use the bathroom, etc. They will typically say yes. You or your lawyer can use this time to quickly rethink or restructure the closing statements.
Finally, the judge will thank everyone. You will have a decision within 1-2 months. Then, they just wish you well and then the Zoom call ends.
We always call clients afterwards because they are usually super anxious about how your CPP disability Social Security Tribunal hearing went. You’ll know when it doesn’t go well — if you couldn’t share everything you wanted or if something unexpected happens. Generally, if you got all of the information out that you needed to share, the hearing went well.
Now that you understand how a Social Security Tribunal hearing works in lets talk about hearing files.
What is a Hearing File for the Social Security Tribunal?
A hearing file is the official collection of documents that the hearing judge will consider for your case. All of the documents have been designated as official hearing file documents by the SST.
Your hearing file will include your complete case file from Service Canada — everything they have handled, from your CPP disability application to your Reconsideration appeal. That all becomes the first volume of your hearing file.
Then, it will also contain any documents that you have sent in for your Social Security Tribunal appeal. Once you send your documents in, they get stamped and sent back to you. The stamp means that they are recognized as the “official” documents. The unstamped versions aren’t valid; you must work from the stamped versions.
Service Canada also sends in written submissions and information that will work against you. You might be receiving quite a lot of documents in the mail, depending on how much gets submitted. These also get stamped, and you will receive official copies to include in your hearing file.
If a document is not stamped and included, it’s like it doesn’t exist for your case. All the judge has to work with are the officially stamped documents in the file. You can’t show up with other documents.
Why are documents so important?
Documents are so important to the success of your CPP disability claim at the Tribunal. As we mentioned, the judge can ONLY consider these documents at your hearing, and this is your very last chance to submit documents. The documents that make up your hearing file for the Social Security Tribunal are crucial.
One of the biggest mistakes we see at the Social Security Tribunal is people not submitting the right documents, enough documents, or any documents at all. People think that telling their story should be enough. In fact, you should be using the documents to better tell your story. Unfortunately, your testimony is not as important as the documents — and you’re not as credible as the documents, either!
Basically, there are 2 types of documents that will be part of your hearing file.
- Documents created before the claim, or, during the “normal course of business”). These are documents that were made before you even had a disability case. These would exist whether you had a CPP disability claim or not. This includes things like past medical records, pharmacy records, employment records, and more.
- Documents created for the claim. This includes the medical report that’s part of your application, any letters written to support the claim. Don’t over-rely on these; you need to have a good mix of these and historical records. You will need these documents to fill in gaps and answer questions.
Often, the historical medical records will be seen as more believable and credible because you weren’t intentionally trying to “win” anything when they were created. However, you do need both as part of your hearing file to tell your full story.
How to Pick the Best Documents for Your Social Security Tribunal Hearing
A CPP disability lawyer is the best person to help you find the right documents for your hearing. They know exactly which documents you will need and how to get them. But, if you’re planning on representing yourself, here’s a few tips you can follow.
Start by looking at what you already have
When you get the first version of your hearing file from Service Canada, check out what’s already in it. What medical records are included, and from which doctors?
Most importantly, what dates and periods of time do they cover? This gives you a sense of where you can start to fill in the gaps. Then, you can start looking for the best documents to include in your Social Security Tribunal hearing file.
Identity key time periods
Every case has critical periods where good evidence is needed. Below are some examples of time periods that you might want to find documents from.
Minimum Qualifying Period (MQP)
One critical period is going to be the time leading up to the end of your Minimum Qualifying Period. Most MQPs end on December 31. You should be looking at the 2 years leading up to this date and checking to see if you have records and documents during that period. If not, you will have to get them. Think of the doctors you saw, the treatment you got, and get records from those people. You need to tell the story of what happened during that critical period.
Further Reading: CPP Disability Minimum Qualifying Period Explained [+video]
At work before disability leave
Another critical period would be the time leading up to when you finally went off work. You’ll want to have some records that verify that you struggled at work. If you don’t have any, you might have a problem.
Usually, records from this time will show that your symptoms are getting worse; sometimes they will even reference that you’re having difficulty at work. These can be very effective because they were created before you even had a disability claim. Documents like this, created without an agenda, can be some of the best documents for your Social Security Tribunal hearing.
This next example is what we call a “gamechanger” or “breaking point” situation. This happens when you have to prove that there was some date when everything changed.
We’ve seen this happen a few times: clients were laid off, and before they were able to get back into the workforce, their disability worsened and they couldn’t return. In these situations, Service Canada argues that you didn’t leave work due to disability. But, with the appropriate records and documentation from the time, we can argue that they were struggling before they even left. We can use medical records to show when things took a turn for the worse. If you have a record of going to specialists, trying medications, and symptoms becoming worse, those are all extremely helpful.
Return to work or rehabilitation
Another example is if you had a period where you tried a return-to-work or rehabilitation program. You will want to have records from that period of time, from the program itself, or from any specialists you saw. You can get employment records for return-to-work attempts, as well as doctors’ records to show that you tried to go back and why your return was ultimately unsuccessful.
Hopefully, this has helped you understand how to pick the best documents for your Social Security Tribunal hearing. If there’s one thing to remember, it’s not enough to have the documents — they have to cover the critical periods of time. Who did you see during that time, and how can you go about getting records from them? Your documents should support your story and help fill in any gaps.
How to Prepare for your SST Hearing
Now that we’ve discussed how to identity key documents and what can you expect, let’s talk about how to prepare for the trial.
Make sure you have a full copy of the hearing file
The first thing you absolutely need do is double-check that you have a copy of your hearing file. Ideally, this should be printed out and bound — you might keep it in a binder or have it professionally bound with a coil. Either way, it should be easy to reference, organized, and at your fingertips.
Identify key documents
As discussed earlier, before the hearing, you should find the documents that you want to refer to. It’s a good idea to have those flagged or bookmarked so that you can flip right to them when you need to.
Plan out your presentation
You need to have an outline of your presentation. You should not be going into a hearing with no plan or preparation. If you’re representing yourself, the judge will ask you questions to guide you along. But, it’s important for you to tell your own story and not just let the judge set the stage. Don’t write a full script, but have some bullet points of the key items you want to touch on, and the order they should come in.
Identify red flags
Try to figure out what your case’s red flags are going to be, from the judge’s point of view. This is the hardest thing to do on your own, and one main areas where a lawyer with experience can assist you with. They will be able to spot these red flags immediately. It’s always hard to be critical of your own faults and flaws. But, you can try to anticipate what questions the judge might have, and how you will answer them. Remember, you’re looking for substantial answers — not answers that just place blame and give excuses.
Plan a quiet, private space
This is one of the most important ways to prepare for your Social Security Tribunal Hearing. You have to let your family or housemates know how serious this is, and that you can’t have any interruptions. No other people or pets are allowed in the room. Make sure the location you choose has good internet or phone reception. Treat this as a serious hearing — because it is. The judge will be able to tell if you’re disrespecting the process, and they will take this into consideration when they make their decision.
Know how you’re going to access the hearing
The Social Security Tribunal will let you know in advance what time your hearing is, and how you’ll be accessing it. To prepare the day before your Social Security Tribunal hearing, you should definitely know how to log in or where to go.
Teleconference: You will be given a conference number and access code. Have this highlighted and ready to go for tomorrow.
Zoom: Test your computer and practice joining the meeting link. Test microphone, headphones, and camera.
In-person: Look at the directions and make sure you know how to get there. Plan ahead for traffic. And, if you’re going into a Service Canada centre, we recommend getting there an hour before you need to be there. Keep in mind, these are public centres where everyone goes to deal with CPP, EI, and everything else that Service Canada handles. There might be a line up out the door when you arrive, and you can’t skip the line.
Confirm with witnesses, if you have them
Make sure your witnesses know when the hearing is. We can usually estimate when they will be called in but it depends. Make sure they know the time and place — or, more likely, the Zoom login information.
Day of Social Security Tribunal hearing: How to Prepare
The day of your Social Security Tribunal hearing may very well be one of the scariest days of your entire CPP disability claim. We have discussed how to prepare in advance of the hearing— but what about when the day comes?
In this section we overview the best ways to prepare on the morning of your SST hearing. We want your stress to be at an all-time low, and these are some of the ways you can accomplish that.
Find a quiet space
As mentioned earlier, preparing a quiet space is crucial. Make sure your family or housemates know that it’s the day of your Social Security Tribunal hearing. Make sure they know not to interrupt you. If your house won’t be a suitable environment, you should have another space secured. This could be a friend or family member’s house; we’ve even had clients drive their car down the street and take the call!
Double-check the phone number, login information, and your technology
Make sure you’ll be able to access the hearing 10-15 minutes before the scheduled time, and that everything is running smoothly.
On the day of your SST hearing, wear something business casual or something that you might wear to work. Once again, you want to look like you’re respecting the process, and this is a big visual reminder that you’re taking it seriously.
Have your hearing file ready to go
We recommend that you set this up the night before. Either way, on the day of your SST hearing, double-check that everything you need is nearby your phone or computer and easy to access.
Pour yourself a glass of water
You’ll probably be nervous and your throat might get dry. Let’s face it, you can’t go wrong having a glass of water nearby.
5 Mistakes to Avoid if you Represent Yourself at the CPP Tribunal Hearing
Now that you know how to prepare for your hearing, lets go over the five mistakes you must avoid if you decide to represent yourself at the Social Security Tribunal.
Mistake #1: Missing the deadline to appeal
This is a common mistake that comes up at all levels of appeal. Once you receive Service Canada’s letter denying your reconsideration appeal, you have 90 days to file your notice of appeal with the Social Security Tribunal.
Many people procrastinate. They believe they must have all the documents necessary to support their appeal. This is not true. What you have to do first is send a form that confirms your intent to appeal. Once that’s done, you have up to one year to prepare your appeal submissions and gather supporting documents. Once you file a proper request for appeal, the 90-day deadline ends and you have a new one-year deadline to prepare your appeal.
We recommend using the official Notice of Appeal Form when advising the Social Security Tribunal that you wish to appeal.
Mistake #2: Failing to gather and submit the necessary medical records and other document evidence to support your appeal
We cannot emphasize how important this is for the CPP disability tribunal hearing. You have to gather and submit the necessary medical records and other documents to support your appeal.
Medical records and other official documents are some of the strongest evidence. The tribunal judge will hold these documents in high regard. If these supportive records exist, but you don’t send them to the Tribunal, then it’s as if these records don’t exist for purposes of your hearing.
The hard part is identifying the documents you need to get to win your case. That happens through careful case analysis of your claim — a process that lawyers and most advocates are familiar with.
Many people who represent themselves don’t realize how critical these official records and documents are to prove disability. For example, if you know your psychiatrist is supportive of your case and has told you so on many occasions, it is critical that they put that in writing. And it’s even more critical that you submit the document to the Tribunal before the deadline. If you just tell the judge that your psychiatrist is supportive, the judge is much less likely to believe you.
Mistake #3: Failing to prepare detailed and persuasive written submissions for the judge
Most people who represent themselves are unable to prepare persuasive written submissions for the judge. They either fail to prepare any submissions at all, or the submissions are inexperienced and ineffective. In the worst case scenario, an ill-prepared submission can actually harm your case.
Written advocacy is not easy. Lawyers receive extensive training in written advocacy, but even then it takes years of practice to achieve a high level of competence. The goal of your brief is to combine all of the facts and evidence into a story that persuades the judge to rule in your favour.
Legal advocacy is especially hard because it requires you to focus on what is persuasive to the decision-maker (in this case the tribunal judge). Your story must focus on what the tribunal judge believes and expects. This is very hard to do. Most people who represent themselves will focus on what they personally find most important. This leads to a less-than-optimal case presentation, and can be the reason why a person loses a winnable case.
I cannot overstate the importance of providing the judge with a detailed and persuasive written brief in advance of the hearing. A well-written brief will frame your story in the judge’s mind and will help you win your case at the hearing.
Mistake #4: Focusing your testimony on the wrong things
To maximize your chances of winning, your testimony and presentation at the CPP tribunal hearing should supplement what was in your written submissions — not repeat it. As I mentioned in mistake #3, you must focus on what the tribunal judge knows and expects. You need to anticipate the areas where the judge will want further information or clarification and then focus your testimony and presentation on those areas.
Additionally, you will want to organize your testimony into logical categories or topics. Then, when the judge hears the testimony, they will immediately recognize its significance and relevance to your situation. This makes it easier for them to understand and will help keep their attention throughout your testimony.
This is all easier said than done. Many people will get nervous at the hearing and just start talking. They will jump from one topic to the next. This will make it difficult for the judge to follow what you’re saying or see the significance of the information.
I had one client in particular who struggled with this. After much practice and coaching, I got her to stop doing it. But she became nervous when we got to the hearing. I asked her the first question and she answered it, but then launched into a long-winded statement that skipped between topics. It was impossible to follow and I had to jump in several times to cut her off. If I hadn’t, we would have run out of time without covering the most important information.
We ended up winning her case, but I fear without our representation she would have lost. When push came to shove, she was incapable of presenting her case effectively.
Mistake #5: Waiting until your CPP tribunal hearing is scheduled to contact a lawyer
Unfortunately, many people wait until the last minute to hire a lawyer. This is a big mistake. By the time your hearing is scheduled, you can’t submit documents and evidence to support your claim.
The biggest value a lawyer brings is that they can easily identify and gather the right evidence to support a winning narrative. Also, a detailed written legal brief for the judge is critical to success in many cases. The hearing is only 90 minutes long. Having a detailed legal brief and written submissions are very important to correctly frame your case and ensure success.
The earlier you hire a lawyer, the greater impact they will have in getting your claim approved. Getting a lawyer involved earlier may even mean your claim gets approved before the tribunal hearing.
Next Steps – Free Consulation
Resolute Legal has represented clients from all over Canada at the Social Security Tribunal. We have perfected the formula and know the best way to present your story. Let us help you win the benefits you deserve. Book a free consultation today by calling (813) 530-1080.
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