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Decision
[1] Time to file the Application for Leave to Appeal is extended.
[2] Leave to appeal to the Appeal Division of the Social Security Tribunal is granted.
Introduction
[3] The Appellant applied for a Canada Pension Plan disability pension. She claimed that she was disabled by a congenital condition that became symptomatic after a motor vehicle accident. The Respondent denied her claim initially and after reconsideration. The Appellant appealed to the Office of the Commissioner of Review Tribunals. On January 25, 2012 a Review Tribunal dismissed her appeal.
[4] The Appellant sought leave to appeal from this decision. She claimed that her Application for Leave to Appeal was filed with the Pension Appeals Board, but not dealt with by them. On February 18, 2015 I endorsed that this matter would be treated as if the Application for Leave to Appeal was properly filed with the Pension Appeals Board and transferred to the Social Security Tribunal pursuant to the Jobs, Growth and Long-term Prosperity Act on April 1, 2013.
[5] In the Application for Leave to Appeal, the Appellant submitted three basic grounds of appeal: that the Review Tribunal decision was contrary to the evidence, that the Review Tribunal did not properly analyze the evidence, and that there was a reasonable apprehension that the Review Tribunal was biased.
[6] The Respondent consented to the Appeal Division granting leave to appeal. It provided no reasons for its consent.
Analysis
Appeal Filed Late
[7] In assessing the request to extend time for leave to appeal, the Tribunal is guided by decisions of the Federal Court. In Canada (Minister of Human Resources Development) v. Gatellaro, 2005 FC 883 this Court concluded that the following factors should be considered and weighed when deciding this issue:
- a) A continuing intention to pursue the application;
- b) The matter discloses an arguable case;
- c) There is a reasonable explanation for the delay; and
- d) There is no prejudice to the other party in allowing the extension.
The weight to be given to each of these factors may differ in each case, and in some cases, different factors will be relevant. The overriding consideration is that the interests of justice be served (Canada (Attorney General) v. Larkman, 2012 FCA 204).
[8] The history of this litigation is unusual. The Appellant claimed that she filed an Application for Leave to Appeal with the Pension Appeals Board within the time required to do so. She produced a copy of this document. Notwithstanding this, the Application was not considered by the Pension Appeals Board. The Social Security Tribunal had no record of the Application having been filed with the Pension Appeals Board. However, the Social Security Tribunal sent correspondence to the Appellant which indicated that the matter had been transferred to it. It was on this basis that I endorsed that the case would be treated as if it had been properly filed with the Pension Appeals Board and transferred to the Social Security Tribunal pursuant to the Jobs, Growth and Long-term Prosperity Act.
[9] Based on these facts, I am satisfied that the Appellant had a continuing intention to pursue the appeal, and a reasonable explanation for the delay in prosecuting her claim.
[10] Neither party made any submissions that indicated that any prejudice would result from this matter proceeding. I am satisfied, upon a review of the facts, that there would be no such prejudice.
[11] The final issue to be determined when considering whether to extend time for a party to file an Application for Leave to Appeal is whether an arguable case has been presented. As this is the same legal test as the one to be granted leave to appeal, I will consider it below.
Leave to Appeal
[12] The law is clear that 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 41, Fancy v. v. Canada (Attorney General), 2010 FCA 63.
[13] 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 may be considered to grant leave to appeal (the section is set out in the Appendix to this decision). Therefore, I must decide if the Appellant has presented a ground of appeal that has a reasonable chance of success on appeal.
[14] The Appellant argued, first, that the Review Tribunal did not properly weigh the evidence in this matter when making its decision. She provided a summary of the relevant facts regarding her motor vehicle accident and her medical condition, and of various medical reports that supported her claim. By doing so, the Appellant has essentially asked this Tribunal to reevaluate and reweigh the evidence that was put before the Review Tribunal. This is the province of the trier of fact and not of an appellate body – Simpson v. Canada (Attorney General), 2012 FCA 82. The Federal Court stated clearly in Misek v. Canada (Attorney General), 2012 FC 890, that it is not for the Member deciding whether to grant leave to appeal to reweigh the evidence or explore the merits of the Review Tribunal decision. Therefore, the repetition of evidence and invitation to reweigh it to reach a different conclusion is not a ground of appeal that has a reasonable chance of success on appeal.
[15] The Appellant argued further that the Review Tribunal did not consider that her chronic pain could be disabling by itself. The Review Tribunal decision considered the Appellant’s testimony regarding her pain. Again, it is not for the Appeal Division of the Social Security Tribunal to reweigh the evidence to reach a different conclusion. Therefore, this argument is not a ground of appeal that has a reasonable chance of success on appeal.
[16] The Appellant also argued that the Review Tribunal erred in its interpretation of the term “severe” in the Canada Pension Plan when it concluded that the ability to work part time or in a sedentary capacity was sufficient for a claimant not to be found disabled. She also contended that the Review Tribunal did not examine the Appellant and her circumstances in a “real world” context, as required in the decision of Villani v. Canada (Attorney General) 2001 FCA 248. The Review Tribunal decision correctly set out the law regarding capacity to work as it relates to disability under the Canada Pension Plan. It is not clear, however, if it considered the Appellant’s capacity to work in light of all of her circumstances. Therefore, this ground of appeal may have a reasonable chance of success on appeal.
[17] In addition, the Appellant argued that the Review Tribunal did not properly analyze the evidence before it in reaching its decision in a number of ways. First, she contended that the Review Tribunal imposed an impossible burden of proof when it stated that there was insufficient medical evidence to establish that she was disabled. Also, the Review Tribunal decision did not point to any medical report that did not support the Appellant’s claim. Finally, she relied on the decision of the Federal Court of Appeal in Canada (Minister of Human Resources Development) v. Angheloni 2003 FCA 140 to support her contention that the failure to explain the factors that formed the basis of the decision amount to a failure by the decision maker to conduct an inquiry tailored to the legislation. This is a correct statement of the law. Although the Review Tribunal referred to the medical records that were before it, it did not indicate how this evidence was weighed. Without some indication in this decision of how the medical evidence was weighed it was not clear why the Review Tribunal reached the decision that it did. Therefore, these arguments are grounds of appeal that have a reasonable chance of success on appeal.
[18] Finally, the Appellant argued that the conduct of the hearing resulted in a reasonable apprehension of bias. She asserted that the Review Tribunal Chair interrupted her evidence, would not permit her to answer questions posed by her counsel, and “cut off” her evidence before it was completely presented. In addition, she alleged that when her counsel objected to the Chair’s conduct, he refused to grant an adjournment of the hearing or to recuse himself from the matter. She relied on a Federal Court of Appeal decision which concluded that the duty of fairness forbids tribunal members from questioning parties aggressively, in a badgering manner or otherwise gives rise to a reasonable apprehension of bias. There was no recording of the Review Tribunal hearing. The objection to the Chair’s conduct by the Appellant’s counsel is noted in the Review Tribunal decision. The decision also did not contain much detail regarding her education and work experience which is the evidence she claimed she was prevented from adducing at the hearing. From this I am not able to discern whether the Appellant was able to fully present her case before an unbiased tribunal. This ground of appeal therefore may have a reasonable chance of success on appeal.
Conclusion
[19] I am satisfied that the Appellant has presented an arguable case on appeal. She has also satisfied me that she met the other factors to be granted an extension of time to file the Application for Leave to Appeal. Therefore, this extension is granted.
[20] In addition, the Appellant has presented grounds of appeal that have a reasonable chance of success on appeal, so leave to appeal to the Appeal Division is granted.
[21] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.
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.
58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.