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Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated May 13, 2014. The General Division determined that she was not eligible for disability benefits under the Canada Pension Plan, as it found that she did not have a severe disability at her minimum qualifying period of December 31, 2014.
[2] The Applicant filed an Application to Appeal to the Appeal Division on March 4, 2015 (the “Leave Application”), seemingly beyond the time permitted for filing. She seeks leave on the grounds that 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. The Applicant relies on a note dated February 24, 2015 from her family physician, which outlines the Applicant’s medical situation. The Applicant offers to obtain an “extensive medical document” to respond to the decision of the General Division.
[3] To succeed on this application, the Applicant must show the following, that:
- (a) the Leave Application was filed on time, or that I should exercise my discretion and extend the time for filing; and that
- (b) the appeal has a reasonable chance of success.
Factual background
[4] The Applicant submitted an application for Canada Pension Plan disability benefits in January 2012. The Questionnaire for Canada Pension Plan Disability Benefits indicates that the Applicant was last employed as a seamstress in May 2011, when she stopped working due to knee and back problems. She explained that they prevent her from sitting or standing for prolonged periods. She also experienced severe knee and back pain when pushing down on the sewing machine pedal at work. This action mimics driving, an activity she rarely does now. The Applicant described numerous other functional limitations and restrictions.
[5] The Applicant has been diagnosed with right knee chondromalacia patella high grade and signs of osteoarthritis, chronic lower back pain and trochanteric bursitis and – iliotibial band irritation on the right side. She has also been diagnosed with chronic pain syndrome, as she has experienced pain for greater than six months, accompanied by mood and sleep disturbance.
[6] The Review Tribunal reviewed the various medical opinions of Drs. Riyat, family physician; K. Hughes, orthopaedic surgeon; and H. Underwood, physiatrist. There were also MRI reports of the Applicant’s lumbar spine and bilateral knees, taken in June and November 2011, respectively. The MRI of the lumbar spine showed degenerative disc and joint changes at L5-6 and L6-S1, while the MRIs of both knees showed high grade chondromalacia.
Submissions
[7] In the Leave Application, the representative for the Applicant (the “Representative”) submits that the Applicant received the decision of the General Division on December 10, 2014. As such, he submits that the Leave Application which was filed on March 4, 2015 was filed on time, within 90 days after the day on which the decision was communicated to her. The Representative submits that he and his spouse contacted the Social Security Tribunal several times to determine the outcome of the appeal, but was advised to wait for a letter in the mail. When they contacted the Social Security Tribunal in or about October 2014, they were finally advised that the decision had been mailed on May 13, 2014. They requested that the letter be resent. When they received the letter on December 10, 2014, they immediately contacted the Social Security Tribunal again and asked when the deadline to file an appeal would fall. They learned that the deadline fell on March 10, 2015.
[8] The Representative further submits that:
the Applicant would like the opportunity to clarify and correct existing information in regards to her medical history as well as bring forth additional medical documentation that was not available at the time of her trial. Both this clarification and additional documentation will provide evidence for her prolonged and severe disability.
[9] The note of Dr. Underwood indicates that the Applicant has ongoing chronic pain involving her right shoulder, low back and bilateral knees. Dr. Underwood also advises that the Applicant is awaiting assessment by orthopedics regarding her knees, and that the Applicant has been unable to work consistently since 2011. Dr. Underwood does not expect significant changes in her presentation.
[10] The Representative proposes to introduce further expert opinion to demonstrate that the Applicant suffers from a severe and prolonged disability. The Representative indicates that, at the time of the hearing before the General Division, the primary focus then was on the Applicant’s medical care and management of her symptomology, rather than building a case to support her claim for Canada Pension Plan disability benefits. The Representative advises that now that the Applicant understands the process and the type of evidence that is required, they would like the opportunity to fully and accurately present her case.
[11] The Respondent has not filed any submissions.
Analysis
(a) Late Filing of Application
[12] Paragraph 19(1)(a) of the Social Security Tribunal Regulations (the “Regulations”) stipulates that a decision is deemed to have been communicated to a party, if sent by ordinary mail, 10 days after the day on which it is mailed to the party.
[13] Subsections 57(1)(b) and (2) of the Department of Employment and Social Development Act (“DESDA”) govern late filings. An application for leave to appeal must be made to the Appeal Division, in the case of a decision made by the Income Security Section, 90 days after the day on which the decision is communicated to the appellant. Subsection 57(2) enables the Appeal Division to allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.
[14] In Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 833, the Court set out the four criteria which the Appeal Division should consider and weigh in determining whether to extend the time period beyond 90 days within which an applicant is required to file his application for leave to appeal, as follows:
- A continuing intention to pursue the application or appeal
- The matter discloses an arguable case
- There is a reasonable explanation for the delay, and
- There is no prejudice to the other party in allowing the extension.
[15] It would have been prudent had the Representative or the Applicant verified -- in writing -- that it had made enquiries with the Social Security Tribunal and that it could soon expect to receive a copy of the decision of the General Division, otherwise the Applicant risked being subjected to the deeming provisions under subsection 19(1) of the Regulations.
[16] I am satisfied however that the Applicant filed the Leave Application well within the permitted time. In addition to the statement of the Representative and the Applicant in the Leave Application, I see that the Social Security Tribunal received the returned decision of the General Division in or about June 2014, that it documented the Applicant’s request in late November 2014 that she had yet to receive the decision, and that the decision was ultimately resent to the Applicant on December 10, 2014.
[17] I turn now to the issue of whether there might be a reasonable chance of success on the Leave Application.
(b) Application for Leave
[18] 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 application has a reasonable chance of success.
[19] Subsection 58(1) of the DESDA sets out the grounds of appeal as being limited to 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.
[20] The Applicant needs to satisfy me that the reasons for appeal fall within any of the grounds of appeal and that at least one of the reasons has a reasonable chance of success, before leave can be granted.
Analysis
(a) Alleged Erroneous findings of fact
[21] The Representative submits that the General Division based its decision on an erroneous finding of fact in a perverse or capricious manner or without regard to the material before it, but he has not set out what the alleged erroneous findings of fact might be.
[22] 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 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 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.
[23] 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 on this ground.
(b) Recent medical note
[24] If the Representative is requesting that I consider the recent medical note of Dr. Underwood, re-weigh the evidence and re-assess the claim in the Applicant’s favour, I am unable to do so at this juncture, given the constraints of subsection 58(1) of the DESDA. Neither the Leave Application nor the appeal provides any opportunities to re- hear the merits of the matter. While neither the Representative nor the Applicant can be faulted for focusing on her medical care and management of her symptomology rather than building the Applicant’s case, the time to fully and accurately present one’s case is before the General Division, as there is no second opportunity for a re-hearing before the Appeal Division.
[25] Any “new” facts or records, such as the medical note of Dr. Underwood, ought to be relevant to one of the enumerated grounds of appeal set out under subsection 58(1) of the DESDA. In other words, the Representative should have established or at least alleged that the medical note of Dr. Underwood addresses or supports any allegations that the General Division failed to observe a principle of natural justice, erred in law or 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.
[26] If the Representative intends to file any additional medical records -- such as a more detailed medical report from Dr. Underwood -- in an effort to rescind or amend the decision of the General Division, he must comply with the requirements set out in sections 45 and 46 of the Regulations, and must also file an application for rescission or amendment with the same Division that made the decision. There are strict deadlines and requirements that must be met to succeed in an application for rescinding or amending a decision. Subsection 66(2) of the DESDA requires an applicant to rescind or amend a decision to have been made within one year after the day on which a decision is communicated to a party, while paragraph 66(1)(b) of the DESDA 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. Under subsection 66(4) of the DESDA, the Appeal Division in this case has no jurisdiction to rescind or amend a decision based on new facts, as it is only the Division -- in this case, the General Division -- which made the decision which is empowered to do so.
Conclusion
[27] The Applicant has not cited with any specificity any 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.