On this page
Introduction
[1] This is an application to extend the time for filing an application requesting leave to appeal and for leave to appeal the decision of the Review Tribunal dated April 18, 2013.
[2] The Review Tribunal had determined that a Canada Pension Plan disability pension was not payable to the Applicant, as it did not find her disability to be “severe” by her minimum qualifying period (MQP) of December 31, 2011. The Applicant seeks leave to appeal the decision of the Review Tribunal.
[3] Counsel for the Applicant filed an application requesting leave to appeal (the “leave Application”) with the Social Security Tribunal (Tribunal) on July 16, 2013, however did not perfect the leave Application then. The Applicant did not “perfect”Footnote 1 the leave Application until July 10, 2014, when she provided a copy of the decision in respect of which leave to appeal is being sought, raising the question as to whether the leave Application was properly filed and meets the general requirements set out in section 57 of the Department of Employment and Social Development Act (“DESDA”). In other words, was the leave Application made within 90 days after the day on which the decision of the Review Tribunal was communicated to the Applicant? If not, the Applicant seeks an extension of time for filing of her leave Application.
[4] To succeed on this Application, the Applicant must first persuade me that her leave Application was filed within 90 days, or that if it was filed late, that I either exercise my discretion and extend the time for filing of the leave Application, or relieve the Applicant from complying with the formal filing requirements of the Social Security Tribunal Regulations (the “Regulations”). Secondly, the Applicant must also persuade me that the appeal has a reasonable chance of success.
Issues
[5] The issues before me are as follows:
- Was the leave Application made on time, within 90 days after the day on which the decision of the Review Tribunal was communicated to the Applicant? Put another way, must the leave Application be in the form set out by the Tribunal on its website and contain the contents required by subsection 57(1) of the DESDA and by subsection 40(1) of the Regulations, to be properly made?
- If the leave Application was made after 90 days after the day on which the decision of the Review Tribunal was communicated to the Applicant, should the Appeal Division extend the time for filing of the leave Application?
- If an extension of time for filing of the leave Application is not available to the Applicant, do special circumstances exist such that I may vary the formal filing provisions or relieve the Applicant from complying with them?
- If I should grant an extension of time for filing of the leave Application, or if I waive the formal filing requirements for the leave Application, has the Applicant identified any grounds of appeal under subsection 58(1) of the DESDA?
- If the Applicant has identified any grounds of appeal, is there a reasonable chance of success on any of them?
Background and history of proceedings
[6] On December 19, 2013, the Tribunal wrote to counsel for the Applicant, advising that the leave Application was incomplete and that it would not accept a leave Application until it had received all of the information and documentation required under subsection 40 of the Regulations. The Tribunal advised the Applicant the following was required for the appeal to be perfected:
- a copy of the decision in respect of which leave to appeal is being sought;
- the Applicant’s address, telephone number and, if applicable, facsimile number and email address;
- an identifying number of the type specified on the Tribunal’s website for the purpose of the application; and
- a declaration that the information provided is true to the best of the applicant’s knowledge.
* Enclosed is an Authorization to Disclose form. Please fill out and return so that we may confer with the Representative.
[7] In its letter of December 19, 2013, the Tribunal also advised the Applicant that it would consider her Application to have been filed on time if the requested information was received by March 31, 2014.
[8] On February 18, 2014, the Applicant filed an Authorization to Disclose, in response to the Tribunal’s letter of December 19, 2013. No other documentation accompanied the Authorization to Disclose.
[9] On March 26, 2014, the Tribunal sent counsel for the Applicant a second letter, again advising that the leave Application was incomplete. This time, the letter made no mention that an Authorization to Disclose was required to be filed, but listed additional information to be produced, namely, the “grounds for the application”. The Tribunal advised that it required the outstanding information “without delay”.
[10] The Tribunal’s letter dated March 26, 2014, also advised the Applicant that if she intended to proceed with the Application, she would need to seek an extension of time to file the complete Application, addressing all of the following:
- (a) Whether there was a continued intention to pursue the application;
- (b) Whether the matter discloses an arguable case;
- (c) Whether there was a reasonable explanation for the delay; and
- (d) Whether there would be prejudice to the other parties in extending the deadline.
[11] Counsel for the Applicant did not respond to the Tribunal’s letter of March 26, 2014, though stated in her letter of July 3, 2014 that she contacted the Tribunal by telephone on April 10, 2014, seeking clarification as to what was required. She apparently received a busy signal and was unable to leave a voice mail message. She informed a colleague in her office, who was handling the Applicant’s motor vehicle accident claim. The colleague apparently advised that the Applicant might have to withdraw her appeal for Canada Pension Plan disability benefits due to poor health. Counsel did not contact the Tribunal again after April 10, 2014, until after she received a third letter from the Tribunal.
[12] On May 27, 2014, the Tribunal wrote a third time to counsel for the Applicant, confirming that it had notified her on March 26, 2014 that the leave Application was incomplete. As the Tribunal had yet to receive information it had requested from her, the Tribunal had closed its file. In its letter of May 27, 2014, the Tribunal also advised counsel for the Applicant that if the Applicant wished to file another leave application, she would need to request an extension of time. In addition, the Tribunal informed counsel that it could not grant an extension of time if more than one year had elapsed since the Review Tribunal had rendered its decision.
[13] Counsel for the Applicant responded to the Tribunal’s May 27, 2014 correspondence by letter dated July 3, 2014, requesting that the leave Application be re- instated, on the basis that a combination of factors, including neglect and mistake, explained her failure to respond to the Tribunal’s correspondence of December 19, 2013 and March 26, 2014 in a timely manner. Counsel also included a copy of the decision in respect of which leave to appeal is being sought, which had been the only outstanding requested document.
[14] On July 16, 2014, the Tribunal advised that it was prepared to re-open the file which it had administratively closed on May 27, 2014.
Submissions
1. Issues Raised by the Leave Application
(a) Late Filing of Application
[15] Counsel for the Applicant submits that the leave Application was late through no fault of the Applicant. Counsel claims sole responsibility for the delay. She explains that she did not heed the Tribunal’s requests for information in its letters of December 19, 2013 and March 26, 2014, as she mistakenly thought they represented generic form letters and that she had already provided the information sought. She submits that she customarily includes a copy of the decision appealed from with the leave application, and assumed that that had been no different with this leave Application. She had already provided an identifying number too. Indeed, she mistakenly believed that a signed Authorization to Disclose was the only outstanding request in the letter of December 19, 2013, as it was the only request which bore an asterisk beside it. This belief was confirmed for her when the letter of March 26, 2014 did not contain a request for a signed Authorization to Disclose.
[16] Counsel for the Applicant also submits that the letter of March 26, 2014 contained “a longer list of required information” than the letter of December 19, 2013. She states that the letter requested a declaration of truth by the applicant, something “new and unheard of”, when this request had already been made in the letter of December 19, 2013. In fact, the Tribunal made only one additional request, that being the grounds for the application, though counsel rightly points out that she had already set out the grounds in the Application filed on July 16, 2013.
[17] Counsel for the Applicant states that she attempted to contact the Tribunal on April 10, 2014 by telephone to seek clarification, but received a busy signal and was unable to leave a message. Counsel also indicates that she contacted a colleague within her law firm who was handling the Applicant’s motor vehicle claim, and was advised by her that the Applicant might have to withdraw her appeal to the Tribunal, due to poor health. Despite the fact that the Tribunal’s letters of December 19, 2013 and March 26, 2014 contained e-mail and facsimile contact information, it does not appear that counsel attempted to contact the Tribunal again after April 10, 2014, until after she received the Tribunal’s letter of May 27, 2014.
[18] Counsel for the Applicant did not respond to the Tribunal’s correspondence of May 27, 2014, until after she received confirmation from the Applicant on July 2, 2014 that she wished to proceed with the appeal.
(b) Grounds of Appeal
[19] Counsel for the Applicant submits that the Review Tribunal failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; erred in law in making its decision, whether or not the error appears on the face of the record; and also based its decision on erroneous findings of fact that it made in a perverse or capricious manner or without regard for the material before it. Counsel for the Applicant did not point to any specific failures or errors which the Review Tribunal might have committed in failing to observe a principle of natural justice.
[20] Counsel for the Applicant submits that the Review Tribunal erred in law in failing to apply Villani v. Canada (Attorney General), 2001 FCA 248, Inclima v. Canada (Attorney General), 2003 FCA 117 and Minister of National Health and Welfare v. Densmore (June 2, 1993), CP2389 (PAB) to the Applicant’s circumstances.
[21] Counsel for the Applicant submits that the Review Tribunal made various erroneous findings of fact in a perverse or capricious manner or without regard for the material before it. She did not explicitly identify the alleged erroneous findings of fact.
[22] Counsel for the Applicant submits that the Review Tribunal failed to consider the impact of the Applicant’s disability on her and her failed return to work attempt and its impact on her. Counsel for the Applicant further submits that the Review Tribunal failed to hear and consider the evidence given by the Applicant and her witnesses, including medical professionals, as well as the submissions of counsel.
2. Tribunal’s Request for Additional Submissions
[23] On February 5, 2015, the Appeal Division invited written submissions from both parties, as follows:
- Are sections 57 of the Department of Employment and Social Development Act (“DESDA”) and section 39 of the Social Security Tribunal Regulations to be read conjunctively with the formal requirements of an appeal, set out in subsection 40(1) of the Regulations?
- If so, and if an applicant, after having filed an application for leave within 90 days after the day on which the decision of the Review Tribunal (or General Division) is communicated to her, perfects her application requesting leave to appeal after one year, has an appeal been properly “made” or brought under either section 57 of the DESDA or section 39 of the Regulations? In other words, has the Applicant in this case complied with the DESDA?
- If the answer to question 2 above is “no”, is an extension of time for perfecting a leave application available to an applicant? Or are there any saving provisions under either the DESDA or the Regulations?
3. Applicant’s Submissions of March 3, 2015
[24] Counsel for the Applicant filed written submissions on March 3, 2015 and submits that section 57 of the DESDA and sections 39 and 40 of the Regulations are to be read conjunctively. She says that the Applicant has complied with the DESDA.
[25] Counsel for the Applicant further submits that the Appeal Division has discretion to consider an applicant’s special circumstances. She further submits that, assuming that I accept that special circumstances exist herein, that I can vary provisions with a view to effecting fairness and natural justice. She submits that the discretion afforded under the Regulations governs and supersedes the 90-day appeal window set out in section 57 of the DESDA. Counsel for the Applicant further submits that even if the Applicant has not properly made or brought an appeal under either sections 57 of the DESDA or section 39 of the Regulations, she nonetheless qualifies for an extension of time for perfecting a leave application, because the Canada Pension Plan, the DESDA and the Regulations “are benefit-conferring (sic) legislation and must be interpreted in a manner that best supports their purpose”. She relies on Driedger on the Construction of Statutes, and submits that the DESDA and the Regulations are “handmaids” of the Canada Pension Plan and must be liberally construed.
4. Respondent’s Submissions
[26] Counsel for the Respondent filed written submissions on March 13, 2015. She submits that there are special circumstances in this case to justify dispensing the Applicant from full compliance with section 40 of the Regulations, and that it follows then that the leave Application was made within the 90-day time limit set out in paragraph 57(1)(b) of the DESDA.
[27] Counsel for the Respondent submits that section 2 of the Regulations requires that I interpret sections 3 and 40 of the Regulations in such a manner as to secure the “just, most expeditious and least expensive” determination of the leave Application. She submits that granting leave to appeal would be “the just, most expeditious and least expensive determination” of the leave Application.
[28] Counsel for the Respondent further submits that if I should grant leave, the Respondent’s position will be that the Applicant became disabled pursuant to subsection 42(2) of the Canada Pension Plan as of February 2010 and that payments therefore ought to commence in June 2010.
[29] Notwithstanding the submissions of both counsel, the parties did not come to any settlement agreement.
Analysis
[30] Paragraph 57(1)(b) and subsection 57(2) of the DESDA stipulate that:
57(1) An application for leave to appeal must be made to the Appeal Division in the prescribed form and manner and within, . . .
(b) 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.
(2) The Appeal Division may 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. (My emphasis)
1. Was the Leave Application “Made” Late?
[31] The only reason the timeliness of the filing of the leave Application is at all an issue is because the Applicant did not perfect her leave Application within 90 days after the day on which the decision of the Review Tribunal was communicated to the Applicant. This raises the question as to whether a leave application – which has been filed but not perfected within 90 days – is considered to have been made on time or is considered late.
[32] Beyond responding affirmatively to the questions set out in paragraph 23(a) and 23(b) above, Counsel for the Applicant has not made any submissions and has not addressed the issue as to whether the leave Application was properly made at the outset and if it should be accepted as having been filed on time, if it was not fully perfected within one year after the day on which the decision of the Review Tribunal was communicated to the Applicant.
[33] Here, the Applicant filed a leave application within 90 days after the day on which the decision was communicated to the Applicant, as required by paragraph 57(1)(b) of the DESDA, but she did not meet the formal requirements for a leave application set out in subsection 40(1) of the Regulations, and referred to in subsection 57(1) of the DESDA. The Regulations require that both the appeal and leave application be in the form set out by the Tribunal on its website and that it contain information such as a copy of the decision and the grounds for appeal, amongst other things.
[34] While there is no question that the Applicant filed the leave Application within 90 days, she did not comply with the second part of subsection 57(1) of the DESDA, namely, that the Application be in the “the prescribed form and manner”, as she did not provide a copy of the decision in respect of which leave to appeal is being sought. The language in subsection 57(1) of the DESDA -- that “an application for leave to appeal must be made in the prescribed form and manner” -- is mandatory. This would necessarily require reference to subsection 40(1) of the Regulations, which sets out the form and contents required for a leave application, otherwise it would render the words “in the prescribed form and manner” in subsection 57(1) of the DESDA meaningless. I do not see how an applicant can overcome or escape the requirements set out in subsection 57(1) of the DESDA that the application be in the prescribed form and manner.
[35] Counsel for the Applicant alludes to the possibility that the Tribunal may dispense the Applicant from complying with the Regulations, given the Applicant’s “special circumstances”. Counsel for the Respondent shares this approach. She relies on the “special circumstances” provisions set out paragraph 3(1)(b) of the Regulations to exempt the Applicant from complying with sections 39 and 40 of the Regulations.
[36] Paragraph 3(1)(b) of the Regulations empowers me only to the extent that I may vary provisions of the Regulations or dispense a party from compliance with a provision. The Regulations do not permit me to vary provisions of the DESDA, or to dispense a party from compliance with a provision of the DESDA.
[37] Both parties submit that section 57 of the DESDA and section 39 of the Regulations are to be read conjunctively with section 40 of the Regulations. If the sections are to be read conjunctively (and assuming that I accept that “special circumstances” apply), how can I dispense the Applicant from complying with the requirements of sections 39 and 40 of the Regulations, when those same requirements exist in subsection 57(1) of the DESDA?
[38] Paragraph 3(1)(b) of the Regulations however effectively enables me to relieve the Applicant from compliance with subsection 57(1) of the DESDA, if I vary the provisions of the Regulations. In this case, I could vary subsection 40(1) of the Regulations by removing the requirement that the leave Application contain a copy of the decision in respect of which leave to appeal is being sought (assuming that I accept that “special circumstances” exist). If I should vary subsection 40(1) of the Regulations in this manner, the Applicant would have met the requirements under subsection 57(1) of the DESDA on July 16, 2013, and there would then be no issue as to whether her leave Application is late.
[39] I am still left to determine whether “special circumstances” indeed exist to enable me to exercise my discretion and vary any provisions of the Regulations. Neither the DESDA nor the Regulations define “special circumstances”. I would be hard-pressed to find that the circumstances set out by counsel for the Applicant – her unfamiliarity with new legislation, oversight or neglect – qualify as “special circumstances”, such that I might either vary the provisions of the Regulations or dispense with the filing requirements set out under sections 39 and 40 of the Regulations. If I were to accept that oversight and negligence qualify as “special circumstances”, they could almost always be cited to either vary provisions of the Regulations or dispense a party from compliance with a provision. I do not think that “special circumstances” should be so loosely defined, nor do I think that “special circumstances” should be so widely available.
[40] However it seems that prejudice and a gross injustice could well result from counsel’s oversight, mistake and neglect. I do not think that an application should be so readily defeated by virtue of the fact that an applicant’s counsel failed to attach a copy of the decision in respect of which leave to appeal is being sought, particularly when the Appeal Division might have ready access to copies of those decisions. It would be contrary to the interests of justice that a leave application be so readily defeated, without any consideration of the merits of the matter. While it is desirable that an applicant produce a copy of the decision in respect of which leave to appeal is being sought, its absence ought not to be the sole basis upon which a leave application should be rejected or dismissed, when that applicant has, in all other respects, seemingly complied with the requirements of the DESDA and the Regulations.
[41] It seems that a plain reading and application of subsection 57(1) of the DESDA and sections 3, 39 and 40 of the Regulations should lead me to dismiss this leave Application, but as I have indicated above, it would seem to lead to an absurd and unjust result that an application is dismissed because it either lacks a copy of the decision in respect of which leave to appeal is being sought, or the applicant is late in producing a copy of that decision. Such a result would be particularly unjust when the Respondent acknowledges that the Applicant is disabled. I find also the fact that the Respondent consents to the merits of the Applicant’s application for disability benefits and acknowledges that the Applicant is disabled to be an exceptional consideration.
[42] In summary, I find the following:
- a) Section 57 of the DESDA and sections 39 and 40 of the Regulations are to be read conjunctively.
- b) Paragraph 3(1)(b) of the Regulations does not empower the Appeal Division to dispense an applicant from complying with subsection 57(1) of the DESDA and therefore subsection 40(1) of the Regulations, in that an application must be in the prescribed form and manner. In other words, a leave application must be in the form set out by the Tribunal on its website and contain the requested information or documentation.
- c) Provided that special circumstances exist, paragraph 3(1)(b) of the Regulations enables the Appeal Division to vary subsection 40(1) of the Regulations, i.e. it can remove the requirement that an application for leave must contain a copy of the decision in respect of which leave to appeal is being sought.
- d) Oversight and neglect do not qualify as “special circumstances”, however, if the impact of oversight or neglect could lead to prejudice and a gross injustice, such as here, and if the Respondent consents to the merits of the application for disability benefits and acknowledges that the Applicant is disabled, this could, in these very limited and unique circumstances, qualify as “special circumstances”.
- e) As I have found there to be “special circumstances”, I have varied subsection 40(1) of the Regulations by removing the requirement for a copy of the decision in respect of which leave to appeal is sought, and find the Applicant met the requirements under subsection 57(1) of the DESDA on July 16, 2013.
2. Criteria to Extend the Time for Filing of a Leave Application
[43] Subsection 57(2) of the DESDA permits the Appeal Division to allow further time of no more than one year after the day on which the decision was communicated to an applicant, within which a leave application can be made.
[44] It seems that the extension in subsection 57(2) of the DESDA is not available to an applicant who has neither made nor perfected an application within one year after the day on which the decision of the General Division (or Review Tribunal) was communicated to her.
[45] The Applicant here cannot rely on subsection 57(2) of the DESDA by virtue of the fact that her leave Application was perfected in July 2014, well after one year after the day on which the decision of the Review Tribunal was communicated to her, in or about late April 2013. She had to have made her application within one year after the day on which the decision of the Review Tribunal was communicated to her, if the discretion afforded under subsection 57(2) is to be exercised. The Appeal Division does not have any authority to extend the time for filing a leave application beyond one year.
[46] I have already determined that there are “special circumstances” here and have varied the provisions under subsection 40(1) of the Regulations. As such, the Application for an extension of time for filing of a leave application under subsection 57(2) of the DESDA has been rendered moot. It is therefore unnecessary for me to consider the four criteria set out in Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 833, to determine whether an extension of time ought to be granted. Those four criteria are as follows:
- there was and is a continuing intention on the part of an applicant to pursue the appeal,
- there is a reasonable explanation for the delay,
- there is no prejudice to the other party in allowing the extension; and,
- the subject matter of the appeal discloses an arguable case.
[47] I will however discuss these criteria in the context of the facts before me, in the event that I am mistaken as to whether the leave Application was filed on time and mistaken also as to whether subsection 57(2) of the DESDA is available to the Applicant. I will necessarily focus on the fourth criteria, as I need to determine whether the subject matter of the appeal discloses an arguable case in determining whether I ought to grant leave.
(a) Was there a Continuing Intention to Pursue an Appeal?
[48] Counsel did not address this issue in her letter of July 3, 2014, and there was no affidavit from the Applicant, confirming that indeed she had a continuing intention to pursue an appeal. Certainly the Applicant had the intention to pursue an appeal at the time that she filed the unperfected leave Application on July 16, 2013, and when she provided a signed Authorization to Disclose form in February 2014. Sometime in April or May 2014 however, her counsel learned that the Applicant’s poor health might lead her to withdraw the appeal. While the Applicant and her counsel may have given some consideration to withdrawing her appeal due to poor health, ultimately the Applicant did not withdraw her appeal. There is no evidence of a break of any intention to pursue an appeal, other than speculation by counsel’s colleague in another matter. As such, I am prepared to accept that the Applicant had a continuing intention to pursue an appeal.
(b) Was there a Reasonable Explanation for the Delay?
[49] In her letter dated July 3, 2014, counsel for the Applicant wrote that she had been having “a great deal of difficulty with the Social Security Tribunal’s General Division on a number of other files… It was very frustrating.”
[50] There have been thousands of applicants -- many unrepresented -- who have negotiated the DESDA and the Social Security Tribunal Regulations and have successfully perfected applications requesting leave to appeal to the Appeal Division of the Tribunal, so I do not accept “newness” of the DESDA and the Regulations as a legitimate excuse for the lateness in filing.
[51] Clearly, the Applicant’s counsel in this case was negligent in failing to review the short list of requirements set out in the Tribunal’s letter of December 19, 2013; in failing to verify that she had previously provided these; and in pursuing appropriate follow-up. Instead, she made assumptions which ultimately proved to be incorrect. Had she undertaken a review of her files, she would have quickly realized that she had not provided all of the listed requirements. When counsel received the Tribunal’s second letter of March 26, 2014, counsel again mistakenly assumed that she had complied with the statutory requirements, and again failed to undertake a review of her files, thus compounding the problems.
[52] Out of an abundance of caution, counsel for the Applicant should have submitted the information, even if it was at risk of some duplication, without first endeavouring to obtain clarification from the Tribunal or confirming instructions from her client. She should have also instituted appropriate bring forward systems, so that there was some follow-up and contact with the Tribunal prior to March 26, 2014 and May 27, 2014. Nevertheless, I accept that counsel sincerely and in good faith had believed that she had fully complied with the statutory requirements, other than not having provided a signed Authorization to Disclose -- the only item which bore an asterisk in the Tribunal’s letter of December 19, 2013. Once counsel saw that the asterisked item was outstanding, she immediately obtained and submitted this item to the Tribunal.
[53] While the delay was caused by the counsel’s ungrounded assumptions, neglect and mistake, she has satisfied me that there is a reasonable explanation for it. I do not arrive at this easily, but it is buttressed by the fact that counsel had immediately responded and provided the signed Authorization to Disclose.
(c) Is there any Prejudice to the Other Party in Allowing an Extension?
[54] If I equate the perfecting of the Application with the making of the Application, the delay involved is approximately twelve months, calculated from the lapse of the time limited for bringing an appeal to July 3, 2014. (The Courts have not been consistent in calculating the period of delay.)
[55] In Canada (Minister of Human Resources Development) v. Dawdy, 2006 FC 429, the Court found a delay of approximately 10 months could arguably be considered prejudice to the Minister, while in Leblanc v. Minister of Human Resources Development, 2010 FC 641, the Court found no prejudice with a delay of approximately nine months and, that to find otherwise on the facts, fell “outside the range of possible acceptable outcomes and was unreasonable”. In Leblanc, the Court said:
In my opinion, a nine month delay would not effect (sic) the applicant’s memory with respect to her medical condition as I believe a person is quite capable of remembering her medical condition. As to the medical witnesses, they would have notes and reports on which they could rely. In my view, the Board’s determination that there was prejudice to the Minister falls outside the range of possible acceptable outcomes and was unreasonable.
[56] Clearly, the Courts assess whether actual prejudice would arise, rather than apply a routine formula of a certain number of months as determining prejudice. In other words, in some cases, there may not be prejudice despite a delay of ten months, depending upon the reliability of witnesses’ testimony and the availability of a documentary record.
[57] There will always be some uncertainty and prejudice caused to any party by delay and generally, the lengthier the delay, the greater the prejudice. After all, witnesses’ memories do erode and powers of recollection decrease over time. There were delays of (coincidentally) approximately seven years in Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Canada (Minister of Human Resources Development) v. DeTommaso, 2005 FC 1531 and in Gattellaro. In each of these cases, the prejudice was obvious. The hearings before the Pension Appeals Board would have been “new” and the applicants would have been prejudiced by hearings at such late dates. This is the same reasoning followed by the Court in Canada (Minister of Human Resources Development) v. Roy, 2005 FC 1456. There, the Court recognized that the prejudice arose from the combination of an 18-month delay and the fact that hearings before the Board were generally de novo.
[58] In Hogervorst, the Court of Appeal also held that uncertainty and prejudice to the appellant, and to the public interest as well, were inevitable if collateral attacks were permitted on other decisions by allowing a late appeal in that case to proceed. The Court of Appeal wrote:
[17] In a more general sense of the concept of prejudice, I am also concerned that allowing appeals, absent compelling reasons, long after the expiry of time leads to a lack of certainty and finality for both the Minister and all parties to the process. It is reasonable to assume that there are many other persons who, having received negative decisions of the Review Tribunal, have not appealed based on the expiry of time. The Respondent should not now be allowed to pursue a remedy that others in her position have not pursued believing that an appeal was not open to them. There is fundamental unfairness in a process that is not applied consistently and with regard to commonly accepted principles. (my emphasis)
[59] I do not see that same prejudice here, as the delay involved is far less lengthy than in Gattellaro, Hogervorst or DeTommaso and as there is an extensive documentary record for this Applicant. Of more significance is the fact that an appeal before the Appeal Division would not be heard on a de novo basis and hence, there is no concern about the reliability of witnesses’ recollection. As well, an appeal would not have wide- reaching consequences for others, as the Applicant’s circumstances by which this request for an extension arises are somewhat unique. While the delay in this case is somewhat longer than in LeBlanc and Dawdy, I find that there is no overriding prejudice to the Respondent in preparing for an appeal if an extension of time were to be allowed.
(d) Does the Matter Disclose an Arguable Case?
[60] 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 Hogervorst, 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.
[61] Subsection 58(1) of the DESDA states that the only grounds of appeal are 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.
[62] For our purposes, the decision of the Review Tribunal is considered a decision of the General Division.
[63] 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, before leave can be granted.
i. Alleged Failure to Observe a Principle of Natural Justice
[64] Counsel for the Applicant submits that the Review Tribunal failed to observe a principle of natural justice. While she employs the language set out in subsection 58(1) of the DESDA, she does not go any further by identifying what principle of natural justice the Review Tribunal may have failed to observe, or how it might have failed to observe the principle. If I am to be able to meaningfully assess the leave Application, the Applicant ought to, at the very least, set out the very errors which the Review Tribunal is alleged to have made, and which fall into the permitted grounds of appeal. She has not done so in this regard. The Applicant has not set out a proper ground on the basis that the Review Tribunal failed to observe a principle of natural justice.
ii. Alleged Erroneous Findings of Fact
[65] For the purposes of this leave Application, I do not require that there be an actual demonstrated error on the part of the Review Tribunal, but in assessing this ground of appeal raised by the Applicant, I need to be satisfied that the Review Tribunal made the findings which the Applicant submits it made.
[66] While counsel for the Applicant has set out some facts in paragraphs (1) through (16) in her submissions, she describes them as the allegations of fact to support the appeal. Nowhere does she suggest that there are any erroneous findings of fact in connection with any of these paragraphs. The Applicant has not identified any erroneous findings of fact which the Review Tribunal may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision. Hence, it cannot be said that there is a reasonable chance of success on the grounds that the Review Tribunal made erroneous findings of fact.
iii. Alleged Errors of Law
[67] Counsel for the Applicant submits that the Review Tribunal erred in law in failing to follow Villani v. Canada (Attorney General), 2001 FCA 248, Inclima v. Canada (Attorney General), 2003 FCA 117 and Minister of National Health and Welfare v. Densmore (June 2, 1993), CP2389 (PAB).
[68] Although the Review Tribunal cited each of these decisions, it may have failed to conduct any meaningful analysis of the evidence where the law is concerned. Indeed, there appears to be little to no analysis of the evidence in the section under the heading “Analysis”. After setting out the applicable authorities, the scope of the Review Tribunal’s analysis appears to be restricted to its final paragraph, where it stated:
[35] The Review Tribunal accepts that the Appellant suffers from several health issues that contribute to limitations, however, determined that these ailments were not severe in nature, as defined by the CPP.
[69] Given this, there may be an issue as to whether the Review Tribunal followed Villani and Inclima. I am less persuaded that the Review Tribunal was required to follow a decision of the Pension Appeals Board, but I will leave counsel to make the appropriate submissions, should a hearing of the appeal become necessary. Overall, counsel for the Applicant has satisfied me that there may be a basis upon which there could be a reasonable chance of success on the issue as to whether the Review Tribunal erred in law in failing to follow established jurisprudence. Should a hearing of the appeal become necessary, the parties might wish to consider what evidence the Review Tribunal relied upon in arriving at its decision.
Leave application
[70] For the reasons which I have expressed above, the Applicant has satisfied me that there is a reasonable chance of success.
Summary
[71] The responses to the issues which I have identified are as follows:
- Was the leave Application made on time, within 90 days after the day on which the decision of the Review Tribunal was communicated to the Applicant? Put another way, must the leave Application be in the form set out by the Tribunal on its website and contain the contents required by subsection 57(1) of the DESDA and by subsection 40(1) of the Regulations, in order to be properly made?
The leave Application was on time, but it was not in the prescribed form and manner required under subsection 57(1) of the DESDA, in that it did not contain a copy of the decision in respect of which leave to appeal is being sought. - If the leave Application was made after 90 days after the day on which the decision of the Review Tribunal was communicated to the Applicant, should the Appeal Division extend the time for filing of the leave Application?
An extension of time is unnecessary, as I have determined that, after varying subsection 40(1) of the Regulations, the leave Application was made on time. - If an extension of time for filing of the leave Application is not available to the Applicant, do special circumstances exist such that I may vary the formal filing provisions or relieve the Applicant from complying with them?
Yes, special circumstances exist here by virtue of the parties’ de facto consent to the merits of the application for disability benefits, such that I may vary the provisions of subsection 40(1) of the Regulations. - If I should grant an extension of time for filing of the leave Application, or if I waive the formal filing requirements for the leave Application, has the Applicant identified any grounds of appeal under subsection 58(1) of the DESDA?
Yes, the Applicant has identified grounds of appeal. - If the Applicant has identified any grounds of appeal, is there a reasonable chance of success on any of them?
Yes, there is a reasonable chance of success.
[72] I am mindful that the Respondent consents to leave being granted, and that if leave is granted, that the Respondent is of the position that the Applicant became disabled pursuant to subsection 42(2) of the Canada Pension Plan as of February 2010. It seems that, under these circumstances, the parties should be able to arrive at a settlement agreement.
[73] Nonetheless, if the parties are unable to settle the Applicant’s claim for disability benefits, I invite the parties to make submissions in respect of the preferred mode of hearing and the appropriateness for such. If any of the parties request an in-person hearing, I require an explanation as to why the hearing cannot be conducted by any other mode, and if an in-person hearing is granted and any parties intend to appear via video- conferencing, an explanation as to why that party is unable to attend in person.
Conclusion
[74] Having varied subsection 40(1) of the Regulations, the leave Application was thus filed on time and the Application to extend the time for filing has now been rendered moot.
[75] The Application for leave is granted. This decision granting leave to appeal in no way presumes the result of the appeal on the merits of the case.