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Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated April 27, 2015. The General Division found that the Applicant had been late in filing a notice of appeal from the reconsideration decision of the Respondent. The General Division refused to exercise its discretion in favour of extending the time for the Applicant to file a notice of appeal, as it found that the Applicant had not provided a reasonable explanation for the delay in filing the notice of appeal in a timely manner, and more significantly, the General Division did not find there to be an arguable case. The Applicant filed an application requesting leave to appeal with the Social Security Tribunal on July 22, 2015, along with a letter dated July 16, 2015 from the Respondent. To succeed on this leave application, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.
Issue
[2] Does the appeal have a reasonable chance of success?
History of proceedings
[3] The Applicant applied for a Canada Pension Plan disability pension. The Respondent denied the application initially and subsequently on reconsideration. The reconsideration decision was communicated to the Applicant by letter dated November 15, 2013. The reconsideration decision was mailed to the Applicant at his old address on X Street in Victoria, B.C.
[4] Telephone notes show that the Applicant contacted the Respondent’s office on January 23, 2014, requesting another copy of the reconsideration decision, as he had moved before the reconsideration decision had been sent to him and he did not inform the Respondent of his new address until after the reconsideration decision had been sent (Document GD3-4). The notes suggest that this was his second enquiry to the Respondent’s office, but there are no notes to confirm that there was a first enquiry, and if there had been one, what might have been discussed during that first enquiry.
[5] The Applicant appealed the reconsideration decision by filing a Notice of Appeal on March 7, 2014. He indicated that, due to a move in November 2013, he did not receive the reconsideration decision until February 7, 2014. The Notice of Appeal form shows a new address on X Avenue in Victoria, B.C. The Applicant also advised that he still had “bad knees and back which [aren’t] getting any better if not worse”.
[6] On March 19, 2014, the Social Security Tribunal wrote to the Applicant at his X Avenue address and advised that his Notice of Appeal appeared to have been filed more than 90 days after the date that he received the reconsideration decision. The Social Security Tribunal advised that it had the authority to extend the appeal period under certain circumstances and that a Member of the General Division would review the matter to determine whether an extension of time should be permitted.
[7] The Applicant responded by letter on April 22, 2014, confirming that he had moved on November 1, 2013 and had advised the Respondent of his new change of address on November 14, 2013. He advised that the Respondent nonetheless sent the reconsideration decision dated November 15, 2013 to his old address. The Applicant included the envelope post-marked February 7, 2014 from the Respondent to his new address on X Avenue (Document GD2).
[8] The Applicant did not explicitly state one way or the other in his letter of April 22, 2014 or in his telephone conference with the Respondent on January 23, 2014 (according to the Respondent’s telephone notes) whether he might have received the letter dated November 15, 2013; he did not indicate if he had mail forwarded from his old to new address, or whether he returned to his old address to retrieve any mail that might have been sent there. However, this is implicit in his letter of April 22, 2014, when he described it as his “rebuttal for being late”.
[9] The General Division rendered its decision on April 27, 2015. Notwithstanding the fact that there are no statutory deeming provisions applicable to the receipt of reconsideration decisions, the General Division nonetheless proceeded to determine when the Applicant was likely to have received the reconsideration decision by de facto applying paragraph 19(1)(a) of the Social Security Tribunal Regulations. The General Division assumed a reasonable mailing time of 10 days from the date of the reconsideration decision and deemed the Applicant had to have received it therefore on November 25, 2013. The General Division calculated that the 90-day limit set out in paragraph 52(1)(b) of the Department of Employment and Social Development Act (DESDA) to be February 23, 2015, and that the Applicant was therefore 12 days beyond this 90-day limit.
[10] The General Division considered the four factors set out in Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 883, in assessing whether to extend the time for filing of the Notice of Appeal. The General Division found that the Applicant had not provided a reasonable explanation for the delay and that there was no arguable case. The General Division found that these factors weighed against allowing an extension of time. It placed significant weight on the lack of an arguable case in ultimately refusing an extension of time to appeal.
[11] The General Division did not refer to the Applicant’s explanation as to why the notice of appeal appeared to have been filed late. The General Division did not mention the fact that the Applicant had moved at around the time that the reconsideration decision had been mailed to him, and that the Applicant therefore did not receive the reconsideration decision until early February 2014, after the Respondent sent a copy to the Applicant’s new address.
Submissions
[12] The Applicant submits that the General Division erred in finding that he was late in filing the Notice of Appeal with the Social Security Tribunal, and in requiring that he seek an extension for filing. The Applicant relies in part upon the letter dated July 16, 2015 from the Respondent, which reads:
On January 23, 2014, you requested a copy of the letter we sent to you on November 15, 2013, as you had not received it. This letter was to inform you of our decision regarding your request for a reconsideration of your application for a Canada Pension Plan (CPP) Disability benefit.
We sent you the copy of the letter on February 6, 2014 at which time we should have also informed you of your new appeal period. Since you did not receive the original letter sent to you in November 2013, you now had 90 days from February 6, 2014 to appeal the decision to the Social Security Tribunal - General Division. Your Notice of Appeal was received at the Social Security Tribunal- General Division on March 7, 2014.
(Document GD2-6)
[13] The Respondent did not file any written submissions.
The law
[14] 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). The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether legally an appeal has a reasonable chance of success: Fancy v. Canada (Attorney General), 2010 FCA 63.
[15] Subsection 58(1) of the DESDA sets out 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.
[16] I need to be satisfied that the reasons for appeal fall within any of the grounds of appeal and that the appeal has a reasonable chance of success, before leave can be granted.
Analysis
[17] While the General Division could have rejected any evidence from the Applicant that he had not received the reconsideration decision until early February 2014, it is altogether unclear from the decision whether the General Division considered the Applicant’s evidence on this point at all, as the General Division made no reference or mention of the Applicant’s explanation that he had moved. Indeed, the General Division found that the Applicant had not provided any explanation for the “delay” in filing the notice of appeal, despite the evidence in front of it. Had the General Division accepted the Applicant’s explanation for the “delay”, it may well have concluded that the Applicant had filed the notice of appeal on time and it likely would have proceeded with assessing the merits of the claim, whether on the record or otherwise.
[18] I am satisfied that the appeal has a reasonable chance of success, on the grounds that the General Division may have based its decision on an erroneous finding of fact made that the Applicant was late in filing the notice of appeal, without regard for the material before it, and ultimately, erred in law, in requiring that the Applicant therefore had to seek an extension of time for filing of the notice of appeal.
[19] I am satisfied that the appeal has a reasonable chance of success, on the grounds too that the General Division may have erred when it de facto applied the deeming provisions of paragraph 19(1)(a) of the Regulations that the Applicant received the reconsideration decision within 10 days after it had been issued.
[20] Ordinarily, any new facts, such as the letter dated July 16, 2015 from the Respondent, would not be appropriately considered at the leave stage, given the limitations set out in subsection 58(1) of the DESDA. But, in this particular case, the letter originates from the adverse party. The letter corroborates and adds credence to the evidence that had been before the General Division. The letter supports the allegation that the General Division based its decision on an erroneous finding of fact without regard for the material before it.
[21] Finally, the General Division was satisfied that the Applicant “lacks a reasonable possibility of success”. However, it appears that the General Division may have determined whether there was “no arguable case”, rather than “an arguable case”. It also appears that the General Division may have also determined the merits of the claim for a disability pension. These could qualify as errors of law. Setting aside the issue as to whether the General Division may have improperly required the Applicant to seek an extension of time for filing a notice of appeal, these considerations further favour a finding that the appeal has a reasonable chance of success.
Conclusion
[22] The Application is granted.
[23] This decision granting leave to appeal in no way presumes the result of the appeal on the merits of the case.