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Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal is refused.
Introduction
[2] The Applicant applied for a Canada Pension Plan disability pension. She claimed that she was disabled as a result of a number of medical conditions including pain, mental illness, fibromyalgia, asthma, obesity, diabetes and many other conditions. The Respondent denied the claim initially and after reconsideration. The Applicant appealed to the Office of the Commissioner of Review Tribunals. The matter was transferred to the General Division of the Social Security Tribunal on April 1, 2013 pursuant to the Jobs, Growth and Long-term Prosperity Act. The General Division held a teleconference hearing and on December 10, 2014 dismissed the Applicant’s claim.
[3] The Applicant sought leave to appeal to the Appeal Division of the Tribunal. She argued that she was disabled, she was unable to work in any employment, that her condition was severe and prolonged, and that the General Division erred in law in making its decision. She also claimed that the General Division did not consider all of the medical evidence that was presented, and wrote that she would provide further medical evidence.
[4] The Respondent made no submissions regarding the application for leave to appeal.
Analysis
[5] In order to be granted leave to appeal, the Applicant must present some arguable ground upon which the proposed appeal might succeed: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC). The Federal Court of Appeal has also 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. v. Canada (Attorney General), 2010 FCA 63.
[6] The Department of Employment and Social Development Act governs the operation of this Tribunal. Section 58 of the Act sets out the only grounds of appeal that can be considered to grant leave to appeal a decision of the General Division (this is set out in the Appendix to this decision). Therefore, I must decide whether the Applicant has presented a ground of appeal under section 58 of the Act that has a reasonable chance of success on appeal.
[7] The Applicant argued that leave to appeal should be granted because she is disabled, unable to work in any employment and her condition is severe and prolonged. These arguments do not allege that the General Division made any error or breached any of the principles of natural justice. Thus, these arguments do not have a reasonable chance of success on appeal as they do not point to any ground of appeal set out in section 58 of the Act.
[8] The Applicant also contended that the General Division erred in law in its decision. She provided no details regarding the alleged error. A review of the decision does not reveal any such error. This argument also does not have a reasonable chance of success on appeal.
[9] The Applicant argued, further, that the General Division did not consider all of the medical evidence. She did not, however, point to any evidence that was not considered by the General Division. In the Simpson v. Canada (Attorney General), 2012 FCA 82 decision, the Federal Court of Appeal stated clearly that a decision maker need not refer in its reasons to each and every piece of evidence before it, but is presumed to have considered all of the evidence. The General Division decision summarized the medical evidence and the testimony given at the hearing. Not mentioning some of this evidence in the decision is not a ground of appeal that has a reasonable chance of success.
[10] Finally, the Applicant submitted that she would provide further medical evidence to support her claim. No such evidence has been received. In addition, section 58 of the Department of Employment and Social Development Act does not provide that the provision of new evidence is a ground of appeal that can be considered. Therefore, the promise of further evidence is not a ground of appeal that has a reasonable chance of success on appeal.
[11] If the Applicant wishes to file further medical reports in an effort to rescind or amend the decision of the General Division, 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 to rescind or amend the decision with the General Division. There are additional requirements that an Applicant must meet to succeed in such an application. Section 66 of the 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. This is not something, however, that can be considered on an application for leave to appeal.
Conclusion
[12] The Application is refused because the Applicant has not presented any ground of appeal that has a reasonable chance of success on appeal.
Appendix
Department of Employment and Social Development Act
58. (1) The only grounds of appeal are that
- (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.
(2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.