Canada Pension Plan (CPP) disability

Decision

The Tribunal grants leave to appeal to the Appeal Division of the Social Security Tribunal.

Introduction

[1] 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 23, 2013.

Issue

[2] The Tribunal must decide whether the appeal has a reasonable chance of success.

The law

[3] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development (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”.

[4] Subsection 58(1) of the DESD Act states that the only grounds of appeal are 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.

[5] The decision of the Review Tribunal is considered a decision of the General Division

[6] 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

[7] The Applicant submitted in support of the Application that:

1. a) She disagreed with how her testimony was recorded in the Review Tribunal decision;
2. b) She provided additional narrative evidence to support her claim;
3. c) She provided additional evidence, being medical and other letters to support her claim;

[8] The Respondent made no submissions.

Analysis

[9] 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).

[10] 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.

[11] The Applicant argued that the Review Tribunal decision did not accurately reflect some of the evidence she gave at the hearing. She clarified this evidence in the Notice of Appeal. It is not for this Tribunal to re-evaluate or reweigh the evidence that was presented at the Review Tribunal hearing.

[12] However, upon examination of the Review Tribunal decision, I cannot determine what findings of fact were made about the Applicant’s capacity to work, or the impact of her disability on this. The Review Tribunal made few findings of fact, and may not have evaluated conflicting medical evidence. This argument therefore falls within the parameters of section 58(1) of the DESD Act as erroneous findings of fact made without regard to the material that was before the Review Tribunal. It has a reasonable chance of success.

[13] The Applicant also provided additional evidence, both in her narrative and by providing additional documents to support her claim. The provision of new evidence is not a ground of appeal within section 58 of the DESD Act.

[14] If the Applicant has filed the medical reports in an effort to rescind or amend the decision of the Review Tribunal, she must comply with the requirements set out in sections 45 and 46 of the Social Security Tribunal Regulations, and she must also file an application for rescission or amendment with the same Division that made the decision (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. It is not for the Appeal Division of the Tribunal to rescind or amend the Review Tribunal decision. Therefore this argument does not have a reasonable chance of success.

Conclusion

[15] The application for leave to appeal is granted for the reasons set out above.

[16] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.