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Decision
[1] The Tribunal grants leave to appeal to the Appeal Division of the Social Security Tribunal.
Introduction
[2] On February 4, 2013, a Review Tribunal determined that a Canada Pension Plan disability pension was not payable. The Applicant filed an application for leave to appeal (the “Application”) with the Appeal Division of the Social Security Tribunal (the “Tribunal”) on May 8, 2013 which appears to have been after the time to do so had expired.
Issue
[3] The Tribunal must decide whether the Application was filed with the Tribunal after the time to do so had expired, and if so, whether to grant an extension of time to file the Application.
[4] The Tribunal must decide whether the appeal has a reasonable chance of success.
The law
[5] Paragraph 57(1)(b) of the Department of Employment and Social Development Act (DESD Act) provides that an appeal from a decision on an income security matter shall be made within 90 days of the date that the decision was communicated to the appellant.
[6] Section 57 of the DESD Act provides that the Appeal Division may extend the time within which an application for leave to appeal may be made, but in no case may it be more than one year after the day on which the decision was communicated to the Applicant.
[7] 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”.
[8] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:
- a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- 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.
[9] The decision of the Review Tribunal is considered a decision of the General Division
[10] 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”.
Submissions
[11] The Applicant made no submissions regarding the late filing of his Application.
[12] The Applicant submitted the following arguments in support of the Application for leave to appeal:
- a) The Review Tribunal made an error of law by separating the terms “incapable regularly of pursuing” and “substantially gainful occupation” in its analysis of this matter, and did not apply the law to the facts of the case;
- b) The Review Tribunal erred in quoting from a number of Pension Appeals Board and court decisions on what has been found to be substantially gainful occupation, and what factors are considered in the ‘real life evaluation’ of a disability claim;
- c) The Applicant has attempted to have his MQP date altered by using the “child rearing dropout” provisions in the CPP, but did not resolve that issue with Canada Revenue Agency prior to the hearing;
- d) The Applicant disagreed with the weight given to evidence in this matter, including the causative condition of his disability, his diagnosis of fibromyalgia, various statements made by Dr. Lovegrove and his medical reports, what medication the Applicant took, the lack of objective medical evidence in this matter; the findings of credibility made by the Review Tribunal, whether the Applicant followed medical recommendations, and whether the Applicant retired voluntarily or was forced to do so by his disability;
- e) The Applicant provided scholarly information regarding his medical condition, although it was not clear whether this information was before the Review Tribunal;
- f) The Applicant presented evidence regarding his irritable bowel syndrome, which was not considered by the Review Tribunal;
- g) The Applicant did not have a copy of the letter dated August 24, 2011 that is mentioned in the Review Tribunal decision; and
- h) The Respondent did not adduce any evidence to contradict the Applicant’s claims.
[13] The Respondent made no submissions.
Analysis
Time to File the Application
[14] The Applicant wrote on his Application that he received the Review Tribunal decision on February 7, 2013. He filed the Application with the Appeal Division of the SST on May 8, 2013, which appeared to be after the time to do so had expired. The Application was dated April 11, 2013. The Applicant did not provide any explanation for filing the Application one day past the time for doing so. In light of the circumstances of this case, and the transition of this matter from the Pension Appeals Board to the SST, the enactment of the DESD Act on April 1, 2013 I grant an extension of time for filing the Application.
Leave to Appeal
[15] 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 in order for leave to be granted: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC).
[16] Furthermore, the Federal Court of Appeal has found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. Canada (Attorney General), 2010 FCA 63.
[17] The Applicant put forward a number of arguments in support of the Application. First, he argued that the Review Tribunal did not properly apply the legal test in this matter, by not considering the phrase “incapable of regularly pursuing” and “substantially gainful occupation” together. The Review Tribunal decision referred to decisions of the Pensions Appeal Board that interpreted both of these terms. It is not clear from the statements in the Application how it was to have erred. In Pantic v. Canada (Attorney General), 2011 FC 591, the Federal Court concluded that a ground of appeal cannot be said to have a reasonable chance of success if it is not clear. Therefore, this ground of appeal does not have a reasonable chance of success.
[18] The Applicant also argued that he was attempting to have his MQP date changed by using the “child rearing dropout” provisions of the legislation to his advantage. He had not received the decision from Canada Revenue Agency on this issue prior to the hearing. Section 58 of the DESD Act sets out very narrow grounds of appeal. The provision of new evidence, including evidence of a changed MQP date, is not within the parameters of this section of the CPP. Therefore, this argument does not have a reasonable chance of success on appeal. Similarly, the provision of scholarly information on his medical condition, if it was not before the Review Tribunal, does not constitute a ground of appeal that has a reasonable chance of success on appeal.
[19] The Applicant also disagreed with how the Review Tribunal weighed the written and oral evidence presented at the hearing. With this argument, he essentially asks this tribunal to reevaluate and reweigh the evidence that was put before the Review Tribunal. This is the province of the trier of fact, which was the Review Tribunal. The tribunal deciding whether to grant leave to appeal ought not to substitute its view of the persuasive value of the evidence for that of the Review Tribunal who made the findings of fact (Simpson v. Canada (Attorney General), 2012 FCA 82). Therefore, I find that this argument does not raise grounds of appeal that have a reasonable chance of success.
[20] The Applicant also argued that he did not have the letter of August 24, 2011 written by Dr. Lovegrove. This letter was included in the hearing file before the Review Tribunal. It is addressed to the Applicant’s representative. Therefore, I find that the Review Tribunal did not err in considering this evidence.
[21] In addition, the Applicant argued that the Respondent did not put forward any evidence to contradict his claim. The Respondent has no obligation to do so. The Applicant bears the legal burden of proving his claim on the balance of probabilities. Therefore, this argument has no reasonable chance of success on appeal.
[22] The Applicant did present two arguments that have a reasonable chance of success on appeal. First, he argued that he put forward evidence that he suffered from irritable bowel syndrome. This was not mentioned in the Review Tribunal decision. While the Review Tribunal is presumed to have considered all of the evidence before it, without some statement regarding this condition, I cannot determine what, if any, weight was given to this evidence. The Review Tribunal must consider all of the Applicant’s medical conditions individually and cumulatively. It is not clear from the Review Tribunal decision that it did so. Therefore, this argument has a reasonable chance of success on appeal.
[23] The Applicant also disagreed with statements made in the Review Tribunal decision that were quotations taken from decisions of the Pension Appeals Board and various courts in CPP disability matters. The Review Tribunal made no error in quoting these cases. They are relevant to this matter. The Review Tribunal may, however, have made an error in law. While it quoted the relevant case law, it failed to apply it to the facts of this case. This ground of appeal has a reasonable chance of success.
Conclusion
[24] The Application is granted for the reasons set out above.
[25] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.