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Introduction
[1] On April 15, 2014, the General Division of the Social Security Tribunal of Canada determined that the Applicant’s claim was statute-barred, and that the information she had submitted to the Tribunal did not meet the test for new material facts under the Department of Employment and Social Development Act. The Applicant filed an application for leave to appeal with the Appeal Division of the Tribunal by letter dated August 7, 2014. This appeared to be after the time permitted to do so had expired. The Applicant argued that she contacted the Tribunal immediately after she received the General Division decision to discuss this matter, and that any delay in filing this Application Requesting Leave to Appeal was due to delays in this communication, and that the Respondent would not be prejudiced by this delay.
[2] Regarding the appeal, the Applicant contended that she was denied natural justice in the process followed that led to the General Division decision, that she disagreed that her claim was statute-barred, and she disagreed with the General Division decision that her new diagnosis was not a new material fact under the legislation.
[3] The Respondent submitted that the Application was filed late and did not satisfy the legal requirements for time to file the application to be extended, and that the appeal was statute- barred on a plain reading of the Department of Employment and Social Development Act (DESD Act). Therefore, I must decide if the time for the Applicant to file the Application Requesting Leave to Appeal should be extended, and if so, whether leave to appeal should be granted.
Analysis
Extension of time
[4] The Respondent, in its submissions dated March 30, 2015, correctly stated the law regarding granting an extension of time to file an Application Requesting Leave to Appeal (Application). In Canada (Minister of Human Resources Development) v. Gatellaro, 2005 FC 883 the Federal Court concluded that the following factors must 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.
[5] 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.
[6] In this case, the Application was received approximately one month after the time for filing of the Application had expired. The Applicant submitted that she had contacted the Tribunal to discuss her case and there were some delays in this communication, which resulted in the Application being filed late. On this basis, I am satisfied that she had a continuing intention to pursue the Application, and a reasonable explanation for the delay.
[7] The Applicant also contended that there would be no prejudice to any party by this delay. The Respondent made no mention of prejudice caused by the delay in this matter in its submissions. Therefore, I am satisfied that there would be no prejudice to any party if this matter were to proceed.
[8] Another factor to consider is whether the Applicant has presented an arguable case on appeal. As the Federal Court of Appeal has also found that an arguable case at law is akin to whether legally an applicant has a reasonable chance of success 63I will analyze this factor below on that basis (see Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, Fancy v. v. Canada (Attorney General), 2010 FCA).
Leave to appeal
[9] The Department of Employment and Social Development Act (DESD Act) governs the operation of this Tribunal. Section 58 of the DESD Act sets out the only grounds of appeal that can be considered to grant leave to appeal a decision of the General Division (see the Appendix to this decision).
[10] The Applicant presented three grounds of appeal. First, she argued that she and her Representative attended a hearing in February 2014, made submissions on her case, and were told orally by the Tribunal Member that she had been successful. She later spoke with a Tribunal employee who again advised that her claim was successful. In April 2014 she received the decision of the General Division which denied her claim, made no mention of the hearing she attended, and set out that the decision was made based on the written record only. By proceeding in this fashion, the Tribunal breached the principles of natural justice. In answer to my request for further information and submissions, the Applicant provided some details regarding the date and location of the hearing, who attended, and the outcome. The Respondent provided no information or submissions regarding this event. If the Applicant’s contentions regarding this process are correct, the principles of natural justice may have been breached. Therefore, this ground of appeal has a reasonable chance of success on appeal.
[11] The Applicant also submitted that the General Division decision erred when it decided that her claim was statute-barred. She argued that the intention of Parliament would not have been to take away a right to a benefit, and that the case should be judged on its merits. The Respondent argued that the new material facts claim was made more than one year after the decision was communicated to the Applicant. On the plain reading of the DESD Act and the Jobs, Growth and Long-term Prosperity Act the appeal is barred by the statute, and therefore cannot proceed.
[12] If legislation is clear and terminates prior rights, it must be accepted. That, however, is not the end of the inquiry. The common law doctrine of special circumstances may apply to this case, although that is not certain. It is also not clear whether it is appropriate, in this case, for the Applicant’s rights to be terminated or taken beyond her control by the introduction of new legislation. There may be other legal bases for the Applicant’s claim not to be barred by statute. Hence, this ground of appeal has a reasonable chance of success on appeal.
[13] Finally, the Applicant submitted that she disagreed with the General Division decision that her new medical diagnosis did not meet the legal test for a new material fact. She explained the implication of this new diagnosis on her treatment and prognosis. She contended that the new diagnosis also explained why the Appellant “finally gave up” on being employed. The Respondent made no submissions on this ground of appeal. I am satisfied that all of the implications of this new diagnosis may not have been fully considered in the General Division decision. This may be an error of fact made without regard to the material that was before th General Division. Therefore, this ground of appeal may also have a reasonable chance of success on appeal.
Conclusion
[14] The Applicant has satisfied me that she had a continuing intention to pursue this matter, a reasonable explanation for delay and an arguable case. There was no indication that any party would be prejudiced if this matter proceeded. It is in the interests of justice for the time to file the Application to be extended.
[15] In addition, leave to appeal is granted as the Applicant has presented grounds of appeal that have a reasonable chance of success.
[16] Within 45 days the parties may file submissions. It would assist the Tribunal if the parties provided submissions on all of the issues set out above.
[17] The granting of leave to appeal does not presume the outcome of the appeal on its merits.
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.