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Background
[1] The Appellant applied for a Canada Pension Plan disability pension. The Respondent denied the application initially and subsequently on reconsideration on November 15, 2013. The Appellant appealed the reconsideration decision by filing a Notice of Appeal with the Social Security Tribunal on March 7, 2014.
[2] The General Division found that the Appellant had to have received the reconsideration decision of the Respondent on November 25, 2013 and that as a result, the 90-day limit for filing a Notice of Appeal had expired on February 23, 2015. The General Division found that the Appellant was late when he filed a Notice of Appeal from the reconsideration decision of the Respondent on March 7, 2014, as this was beyond the 90-day limit.
[3] The General Division refused to exercise its discretion in favour of extending the time for the Appellant to file a Notice of Appeal, as it found that the Appellant did not provide a reasonable explanation for the delay in filing the Notice of Appeal in a timely manner. More significantly, the General Division did not find the Appellant to have an arguable case.
[4] The Appellant sought leave to appeal to the Appeal Division. He attached a copy of a letter dated July 16, 2015 which he had received from the Respondent. The Appellant explained that he had been late in filing the Notice of Appeal from the reconsideration decision of the Respondent, as he did not receive the reconsideration decision until February 7, 2014.
[5] I indicated in the leave decision that ordinarily I would not consider any new facts such as the letter dated July 16, 2015 on a leave application (unless it addressed any of the grounds of appeal under subsection 58(1) of the Department of Employment and Social Development Act), but not only did the letter originate from the adverse party, but it also supported the Appellant’s allegation that the Appellant had not received the Respondent’s reconsideration decision until February 2014.
[6] Leave to appeal was granted on August 27, 2015, on the basis that the General Division may have erred in basing its decision on an erroneous finding of fact without regard for the material before it, and in requiring that the Appellant request an extension of time to file a Notice of Appeal, when the evidence suggested that he may not have been late in filing his Notice of Appeal.
[7] On October 8, 2015, counsel for the Respondent filed a letter with the Social Security Tribunal, advising as follows:
. . . the Minister of Employment and Social Development will not contest the Leave to Appeal decision of the SST-AD extending the delay to have the application of [the Appellant] reviewed at reconsideration.
[8] In light of this letter dated October 8, 2015, I have determined that a further hearing on the appeal before the Appeal Division is not required, pursuant to subsection 37(a) of the Social Security Tribunal Regulations.
Analysis
[9] The appropriate disposition is to refer this matter back to the General Division for a consideration on the merits of the matter. Any analysis on the standard of review is unnecessary, given the circumstances, but I will however address some of the issues which have been raised.
[10] It seems that the General Division did not consider the Appellant’s evidence that he did not receive the reconsideration decision until early February 2014 (owing to a move to a new residence), and that he therefore may not have been late in filing his Notice of Appeal in early March 2014. Certainly the General Division made no reference to the Appellant’s advice as set out in his Notice of Appeal or to the Appellant’s letter of April 22, 2014 that he had moved and therefore did not receive the reconsideration decision until February 2014.
[11] The General Division did not refer to the Appellant’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 Appellant had moved at around the time that the reconsideration decision had been mailed to him, and that the Appellant therefore did not receive the reconsideration decision until early February 2014, after the Respondent sent a copy of it to the Appellant’s new address.
[12] Notwithstanding the evidence before it, and despite 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 Appellant 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 Appellant 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 to be February 23, 2015, and that the Appellant was therefore 12 days beyond this 90-day limit. I find that the evidence readily displaces any presumption that the Appellant received the reconsideration decision in November 2013.
[13] I find that the General Division erred in de facto applying paragraph 19(1)(a) of the Social Security Tribunal Regulations, and in deeming that the Appellant had to have received the reconsideration decision in November 2013, in light of the evidence before it. I find also that the General Division based its decision on an erroneous finding of fact made without regard for the material before it.
[14] Given the evidence, the decision of the General Division cannot be saved on a reasonableness standard, as the decision falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[15] As the Appellant was not late in filing the Notice of Appeal, he was entitled to but was deprived of a full consideration on the merits of the matter.
Conclusion
[16] The appeal is allowed and the matter referred back to the General Division for a full reconsideration.
[17] The Appellant has indicated in recent submissions that he requires an extension of time to gather additional medical records before proceeding to a hearing. The parties have leave to file any additional records and submissions addressing the merits of the matter, subject to any directions or orders made by the assigned General Division Member.
[18] To avoid any potential for an apprehension of bias, the matter should be assigned to a different Member of the General Division and the decision of the General Division should be removed from the record.