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Decision
The Tribunal grants leave to appeal to the Appeal Division of the Social Security Tribunal.
Introduction
[1] On March 12, 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 Pension Appeals Board on June 13, 2013. The matter was transferred to the Social Security Tribunal pursuant to section 260 of the Jobs, Growth and Long-term Prosperity Act.
Issue
[2] The Tribunal must decide if 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:
- 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.
[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 he was “cut off” several times when giving his evidence at the hearing, and was not able to fully present his case. He also listed in chronological order the medical conditions that he claimed rendered him 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 Appellant contended that he was not able to fully present his case at the Review Tribunal hearing as he was “cut off” several times while testifying. He listed a number of medical ailments that he claimed were disabling. There is no transcript or recording of the Review Tribunal hearing, so I must examine the Review Tribunal decision to glean what happened at the hearing. The decision does not contain much detail regarding the Appellant’s medical conditions or their impact on his ability to work. It did not refer to the Appellant’s back pain, or frozen shoulder. This may substantiate the Appellant’s argument that he was not able to fully present his case to the Review Tribunal. I find that this argument may have a reasonable chance of success on appeal.
[12] In addition, the Review Tribunal decision stated that the Appellant had not attempted employment, a requirement to obtain a disability pension. This is a misstatement of the law, and presents an arguable case on appeal.
Conclusion
[13] The Application is granted for these reasons.
[14] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.