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Introduction
[1] The Applicant claimed that he was disabled as a result of injuries suffered in a vehicle accident in 2009. He first applied for a Canada Pension Plan disability pension in February 2009. The Respondent denied this application, and the Applicant did not pursue reconsideration of the decision. He again applied for this pension in April 2011. The Respondent denied this application initially and after reconsideration. The Applicant appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals. The appeal was transferred to the General Division of the Social Security Tribunal of Canada on April 1, 2013 pursuant to the Jobs, Growth and Long-term Prosperity Act. The General Division held a hearing in person and on July 1, 2015 dismissed the appeal.
[2] The Applicant sought leave to appeal this decision to the Appeal Division of the Tribunal. He argued that the General Division erred in law, and made an erroneous finding of fact in a perverse or capricious manner or without regard to the material before it by not considering the application for disability pension that he made in 2009.
[3] The Respondent filed no submissions with respect to the application for leave to appeal.
Analysis
[4] 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 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.
[5] 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 can be considered to grant leave to appeal a decision of the General Division (the section is set out in the Appendix to this decision). Accordingly I must decide if the Applicant has presented a ground of appeal under section 58 of the Act that may have a reasonable chance of success on appeal.
[6] The Applicant’s request for leave to appeal to the Appeal Division is based on the fact that he first applied for a Canada Pension Plan disability pension in 2009, and that this application was not considered by the General Division. The medical evidence that was filed with the 2009 application was before the General Division when it considered the later application as it was relevant to deciding whether the Applicant was disabled. The General Division considered all of the evidence that was before it in making its decision.
[7] The only impact that a consideration of the 2009 application could have would be to change the possible date that a disability pension would start to be paid to the Applicant. The Canada Pension Plan provides that for payment purposes a claimant cannot be deemed to be disabled more than 15 months prior to the application date. Hence, if the 2009 application were considered, the Applicant could begin to receive a disability pension earlier than if only the 2011 application were considered.
[8] I accept that the Applicant made an application in 2009. It is also clear that the Respondent denied this application. The Applicant did not request that the Respondent reconsider this decision, nor did he take any other legal steps to pursue this claim.
[9] Section 60 of the Canada Pension Plan is clear that an application for a disability pension must be made in order for it to be considered. Section 81 of the Canada Pension Plan (as it read when the Applicant made the application in 2009) provided that an applicant who was dissatisfied with the Respondent’s decision on an application could request a reconsideration of this decision within 90 days of the decision being communicated to him. The Respondent was obliged to reconsider the decision and confirm, vary or approve payment of a benefit. Under section 82 of the Canada Pension Plan (at that time) the claimant then had a right to appeal the reconsideration decision to a Review Tribunal within 90 days of being notified of the reconsideration decision.
[10] In this case, the Applicant took none of these steps after his 2009 application was refused by the Respondent. Therefore, the Respondent’s decision was final. The application was not before the General Division in this appeal. It could not be considered by the General Division. The General Division made no error of fact or in law by not considering the 2009 application.
[11] Accordingly, this application requesting leave to appeal is refused.
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.