Canada Pension Plan (CPP) disability

Decision

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

Introduction

[2] On May 12, 2014, the General Division of the Social Security Tribunal (the “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 Tribunal on August 12, 2014.

Issue

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

The law

[4] 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”.

[5] 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.

[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 the he should be granted leave to appeal because:

1. a) He disagreed with the decision dismissing his claim;
2. b) He summarized the medical evidence that was presented to the General Division;
3. c) The General Division should consider the medical evidence as well as the subjective evidence of the applicant when determining if he is disabled;

[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 DESD Act sets out very narrow grounds of appeal. If an argument made by the Appellant for leave to appeal does not fall within the parameters of this, it cannot succeed. In this case, the Appellant disagreed with the decision reached by the General Division. Mere disagreement with the decision made is not a ground of appeal that has a reasonable chance of success on appeal under the DESD Act.

[12] The Appellant also reiterated the medical evidence that was presented to the General Division for the hearing in this matter. He did not submit that this evidence was not considered by the General Division, or that the General Division made an error of fact in a perverse or capricious manner, or without regard to the evidence. Therefore, this argument also does not have a reasonable chance of success on appeal.

[13] The Appellant argued, further, that leave to appeal should be granted on the basis that the General Division should consider not just the medical evidence, but also the subjective evidence of the Appellant in coming to its decision. This is a correct statement of the law. The General Division decision considered all of the evidence, including the medical reports and the testimony of the Appellant. It is not for the Tribunal to reweigh this evidence to reach a different conclusion when considering whether to grant leave to appeal. This argument does not have a reasonable chance of success on appeal.

Conclusion

[14] The Application is refused as the Appellant has not put forward any ground of appeal that may have a reasonable chance of success on appeal