Canada Pension Plan (CPP) disability

Decision

[1] The Member of the Appeal Division of the Social Security Tribunal (the “Tribunal”) refuses leave to appeal.

Background

[2] The Applicant seeks leave to appeal the decision of the Review Tribunal issued on February 06, 2013. His Application is late. The Review Tribunal had determined that a Canada Pension Plan disability pension was not payable to the Applicant, as it found that, at the time of his minimum qualifying period of December 31, 2003, his disability was not “severe”. On or about April 09, 2013 the Applicant filed an Application requesting Leave to Appeal (the “Application”) with the Pension Appeals Board, (the “PAB”). The Tribunal received the initial Application on April 9, 2013. On October 8, 2013, the Tribunal wrote the Applicant to advise him that his Application was incomplete and certain documents were required before the Tribunal could consider his Application. The Tribunal letter advised the Applicant that it would consider his Application to be filed on time if it received the missing documents by November 18, 2013. The Tribunal received the documentation on December 12, 2013.

[3] S. 57(2) of the Department of Employment and Social Development, (“DESD”), Act allows the Tribunal’s Appeal Division to extend the time for making an application for leave to appeal, provided that the Application is made no later than one year after the date the decision is communicated to an Appellant. The decision was issued on the 6^th of February 2013, therefore, the application meets this one year criteria for consideration of an extension of the time to file the application for leave. In Gatellaro^{Footnote 1} Snider, J. applied the certain factors to her assessment of the decision to extend time for making an application for leave to appeal. She stated,

“Jurisprudence relied on by the Minister (Grewal v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 263 (F.C.A.); Baksa v. Neis (c.o.b. Brookside Transport), [2002] F.C.J. No. 832) has established that the following criteria must be considered and weighed:

1. a. A continuing intention to pursue the application or appeal;
2. b. The matter discloses an arguable case;
3. c. There is a reasonable explanation for the delay; and
4. d. There is no prejudice to the other party in allowing the extension.”

[4] On or about December 18, 2013 the Tribunal advised the Respondent it had received the Application documents. As in Gatellaro, the Respondent has not filed any submissions. In these circumstances, the Tribunal finds it can apply Gatellaro as the first criteria can be taken to have been met by the filing of the outstanding documentation and secondly, the Respondent has not indicated that he would suffer prejudice if the Tribunal were to allow an extension of the time for filing the Application.

Issue

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

The law

[6] The applicable statutory provisions governing the grant of Leave are ss. 56(1), 58(1), 58(2) and 58(3) of the DESD Act. Ss. 56(1) provides, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” while ss. 58(3) mandates that the Appeal Division must either “grant or refuse leave to appeal.” Clearly, there is no automatic right of appeal. An Applicant must first seek and obtain leave to bring his or her appeal to the Appeal Division, which must either grant or refuse leave.

[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] The Applicant’s submissions are contained in his brief letter dated April 09, 2013 and his cover letter dated December 12, 2013. In the April 09, 2013 letter he gives his reason for making the application as “both doctors said that I was unemployable”; and he referred to Ross Rehabilitation and Dr. Wallenburg Reports as providing the allegations upon which he relies. In his letter dated December 12, 2013, he states he was basing the Application on “his physical and mental state of depression.”

Respondent’s submissions

[9] As noted earlier, the Respondent has not filed any written submissions.

Analysis

[10] On an Application for Leave to Appeal the hurdle that an Applicant must meet is a first, and lower one than that which must be met on the hearing of the appeal on the merits. However, to be successful, the Applicant must make out some arguable case^{Footnote 2} or show some arguable ground upon which the proposed appeal might succeed. In St-Louis^{Footnote 3}, Mosley, J. stated that the test for granting a leave application is now well settled. Relying on Calihoo,^{Footnote 4} he reiterated that the test is “whether there is some arguable ground on which the appeal might succeed.” He also reinforced the stricture against deciding, on a Leave Application, whether or not the appeal would succeed.

[11] 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.

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

[13] I am required to determine whether any of 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.

[14] 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 of the enumerated grounds of appeal.

[15] 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 basis for his or her submissions which fall into the enumerated grounds of appeal, without having the Appeal Division speculate as to what they might be. It is not sufficient for an Applicant to state their disagreement with the decision of the Review Tribunal and to express their continued conviction that their health condition(s) renders them disabled within the meaning of the Canada Pension Plan. Nor is it sufficient for an Applicant to rely on reports made several years after the MQP to establish a basis for granting leave.

[16] The Application is deficient in this regard and I am not satisfied that the appeal has a reasonable chance of success. In reaching my conclusion, I note that the Applicant’s Minimum Qualifying Period date was agreed as December 31, 2003. This date was reached because the Applicant had no contributions to the CPP in the four years prior to the end of his contributory period which ended in November 2009, that is, 15 months before he made his application for a CPP disability benefit. The Review Tribunal applied s. 44 (1)(b)(ii) to find that the Applicant, who stopped working on October 25, 2001, had an MQP date of December 31, 2003. However, the Applicant had to establish that not only was he disabled before December 31, 2003, he also had to establish his disability continued since that date. This is the legal test the Review Tribunal was required to apply and did apply.

[17] On examination, the preponderance of the pre-MQP medical evidence does not support a finding of disability. It was not until 2009 that the Ross Rehabilitation and Vocational Services found after completing a medical legal situational assessment of the Applicant, that he did not demonstrate the potential for employment. However, even this finding was qualified by the addition of the statement “at the present time.” Further, it was not until February 15, 2011 that Dr. Yellin diagnosed the Applicant as suffering “multiple degenerative physical disorders which will progress even if surgery may provide temporary improvements.” Dr. Yellin also found that the Applicant’s chronic disorders were well entrenched. Dr. Yellin concluded by stating that the not employable.

[18] The case law is clear that where medical reports do not give an opinion on a claimant’s condition or ability to work as of the MQP, they cannot be relied on as a basis to warrant reversal of the original decision to deny a claim. In the Applicant’s case, the pre-MQP reports, when they do state an opinion about his ability to work, overwhelmingly state that he could do light or sedentary work or that he should be retrained to do so. The Applicant’s medical condition may have deteriorated after the MQP, however, this is not the legal test and there is no basis to grant the Application as the Tribunal can find no error on the part of the Review Tribunal.

Conclusion

[19] The Application is refused.