Canada Pension Plan (CPP) disability

Decision

[1] The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.

Background & history of proceedings

[2] The Applicant seeks leave to appeal the decision of the Review Tribunal of May 10, 2013. The Review Tribunal had determined that a Canada Pension Plan disability pension was not payable to the Applicant, as it found that his disability was not “severe” at the time of his minimum qualifying period of December 31, 2006. The Applicant filed an application requesting leave to appeal (the “Application”) with the Appeal Division of the Social Security Tribunal (the “Tribunal”) on June 14, 2013, within the time permitted under the Department of Employment and Social Development (DESD) Act.

[3] In filing his request seeking leave to appeal, the Applicant completed the form “Application to Appeal to the Appeal Division”, rather than the form “Application Requesting Leave to Appeal to the Social Security Tribunal - Appeal Division”. On March 6, 2014, I sent a letter to the Applicant inviting submissions in support of his leave application, and requested that, if he chose to respond, that he do so in writing by no later than April 20, 2014. I wrote the following:

1. You did not use the prescribed form in your application seeking leave to appeal. All of the information necessary for a leave to appeal is contained in the Application to Appeal to enable us to proceed, however the Application Requesting Leave to Appeal to the Appeal Division asks an applicant his reasons for leave to appeal. Do you wish to provide reasons for your request for leave to appeal?
2. If you wish to provide reasons for your request for leave to appeal, why do you believe that your application requesting leave to appeal has a reasonable chance of success?
3. In your Application to Appeal to the Appeal Division filed on June 14, 2013, how do the reasons you have listed in the “Reasons for Appeal” (page AD1- 13, part 3C) fall into any of the three grounds of appeal set out in section 58 of the Department of Human Resources and Skills Development Act?
4. If you intend to respond to any of the questions above, please reply within 30 days of receipt of these questions. If no response is received within 30 days, we will be proceeding to a consideration of the leave application.

[4] I did not receive any further submissions or any response from the Applicant to my letter dated March 6, 2014.

Issue

[5] Does the appeal have a reasonable chance of success?

The law

[6] According to subsections 56(1) and 58(3) of the DESD Act, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” and “the Appeal Division must either grant or refuse leave to appeal”.

[7] Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.

Applicant's submissions

[8] In his Application to Appeal to the Appeal Division, the Applicant submits that he is appealing for the following reasons:

June 4, 2013 - “Effects of Impairment”

Disability Tax Credit Certificate (Canada Revenue Agency) April 18, 2013 signed by Dr. L. Canadas.

WHRA Surgery Program - pre-operation assessment patient questionnaire Surgery pre-op bundle (August 2013) - August /2013 surgery wait list

Diagnosis from Trudi Walsh, PhD. Psyc. - 2012-08-15 - no expect (sic) medical improvement - timeframe undetermined

Left untreated since 2005 - condition continued, worsening - surgery, i.e. August

[9] The Applicant enclosed a number of documents with his Application, relating to the above. He did not explain how each might constitute an arguable ground upon which the proposed appeal might succeed.

Respondent's submissions

[10] The Respondent has not filed any written submissions.

Analysis

[11] Although a leave to appeal application is a first, and lower, hurdle to meet than the one that must be met on the hearing of the appeal on the merits, some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No. 1252 (FC).

[12] Subsection 58(1) of the DESD Act sets out the grounds of appeal as being limited to the following:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

[13] For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.

[14] I am required to satisfy myself that the Applicant's reasons for appeal fall within any of the grounds of appeal and whether any of them have a reasonable chance of success, before leave can be granted.

[15] The Applicant has not identified any failure by the Review Tribunal to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction. He has not identified any errors in law which the Review Tribunal may have committed in making its decision. The Applicant has not identified any erroneous findings of fact which the Review Tribunal may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision. The Applicant has not cited any grounds of appeal.

[16] While an applicant is not required to prove the grounds of appeal for the purposes of a leave application, at the very least, an applicant ought to set out some proper grounds for appeal in his leave application, without having the Appeal Division speculate as to what they might be. He must at the very least allege that the Review Tribunal committed an error. The application is deficient in this regard and I am satisfied that the appeal does not have a reasonable chance of success.

New Facts

[17] If the Applicant is requesting that we consider any additional records or factors, or re-assess the claim and re-weigh the evidence in his favour, I am unable to do this, given the very narrow provisions of subsection 58(1) of the DESD Act. The leave application is not an opportunity to re-assess the claim to determine whether the Applicant is disabled as defined by the Canada Pension Plan. The Act requires that I determine whether any of the reasons he has cited fall within any of the grounds of appeal and whether any of them have a chance of success.

[18] If the Applicant intends to file these additional medical records in an effort to rescind or amend the decision of the Review Tribunal, he must comply with the requirements set out in sections 45 and 46 of the Social Security Tribunal Regulations, and he must also file an application for rescission or amendment with the same Division that made the decision (or in this case, the General Division of the Social Security Tribunal). There are additional requirements that an Applicant must meet to succeed in an application for rescinding or amending a decision. Section 66 of the DESD Act also requires an applicant to demonstrate that the new fact is material and that it could not have been discovered at the time of the hearing with the exercise of reasonable diligence. The Appeal Division has no jurisdiction in this case to rescind or amend a decision based on new facts, as it is only the Division which made the decision which is empowered to do so. In short, there are no grounds upon which I can consider any additional records which the Applicant has filed in support of his leave application, irrespective of how supportive they might have been.

[19] Even if I were permitted to review any additional medical records, the Applicant has not stated why he has filed them. He has not indicated how they might fall into any of the grounds of appeal.

Conclusion

[20] The Application is refused.