Canada Pension Plan (CPP) disability

Introduction

[1] The Applicant seeks leave to appeal the decision of the General Division dated December 3, 2014.  The General Division determined that the Applicant was not eligible for disability benefits under the Canada Pension Plan, as it found that she did not have a severe disability at the time of her minimum qualifying period of December 31, 2013. The Applicant seeks leave on the grounds that the General Division erred in law and that it also 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.  To succeed on this application, the Applicant must show that the appeal has a reasonable chance of success.

Issue

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

Submissions

[3] Counsel for the Applicant submits that the General Division erred in law in making its decision and 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.  The Respondent has not filed any written submissions.

Analysis

[4] 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 for leave to be granted:  Kerth v. Canada (Minister of Human Resources Development), [1999] FCJ No. 1252 (FC).  In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, the Federal Court of Appeal found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success.

[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] 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.  Here, counsel for the Applicant alleges that the General Division based its decision on erroneous findings of fact without regard for the evidence before it, but he does not set out what the alleged erroneous findings of fact might be. Counsel for the Applicant also alleges that the General Division erred in law, but he does not set out what those errors might be.

[7] In my view, the Applicant is required to set out some particulars of the error or failing committed by the General Division.  It is insufficient to make a general statement that the General Division committed an error of law or based its decision on erroneous findings of fact that it made in a capricious or perverse manner or without regard for the material before it, without pointing to what the error of law or erroneous findings might have been, and how they might have impacted upon the outcome. Otherwise, I have no basis upon which I can properly assess the leave application.

[8] While an applicant is not required to prove the grounds of appeal for the purposes of a leave application, she ought to, at the very least, set out some bases for the leave application beyond making a general statement that an error was made, without having the Appeal Division speculate as to what that error or failing might be.  The Application is deficient in this regard and the Applicant has not satisfied me that the appeal has a reasonable chance of success.

Conclusion

[9] The Applicant has not cited with any specificity any errors in law or erroneous findings of fact which the General Division might have made in coming to its decision. As the Applicant’s reasons for appeal effectively disclose no grounds of appeal for me to consider, I am unable to find that the appeal has a reasonable chance of success and I therefore refuse the Application for leave.