Canada Pension Plan (CPP) disability

Introduction

[1] This is an appeal of the decision of the General Division dated March 15, 2015. 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 he had failed to provide a reasonable explanation for the delay in filing the notice of appeal in a timely manner, and that he did not exhibit a continuing intention to pursue an appeal. Leave to appeal was granted on July 16, 2015, on the ground that the General Division may have erred in law in rendering its decision. Having determined that no further hearing is required, this appeal before me is proceeding pursuant to subsection 43(a) of the Social Security Tribunal Regulations.

Factual overview

[2] The Appellant applied for a Canada Pension Plan disability pension on November 29, 2012. The Questionnaire for Canada Pension Plan Disability Benefits, which is date-stamped received on January 11, 2011, indicates that the Appellant did not complete high school. The Questionnaire also indicates that the Appellant was last employed as a bricklayer in November 2010 (though a Questionnaire date-stamped received suggests he last worked in February 2011). He alleged that he stopped working due to an injury to his left leg, which left him with a severely comminuted proximal tibial fracture plus associated multiple ligament injuries of his knee. He alleged that he had ongoing pain and weakness in his left leg which kept him from working. He listed other health-related conditions or impairments, including asthma, elevated cholesterol and hypertension. According to his family physician, the Appellant also has osteoarthritis in his right knee with pain and tenderness.

[3] The Appellant alleges that he has numerous functional limitations and restrictions. These are listed in the Questionnaire and indicate that the Appellant has limitations with sitting or standing, walking and lifting and carrying.

[4] The Appellant has been seen by different orthopaedic specialists and has had various treatment, but he alleges that has not seen any appreciable improvement in pain or functionality.

History of proceedings

[5] The Appellant applied for a Canada Pension Plan disability pension. The Respondent denied the application initially and subsequently on reconsideration, the latter by letter dated September 16, 2013.

[6] The Appellant appealed the reconsideration decision by filing a Notice of Appeal on January 17, 2014. He did not disclose when he might have received the reconsideration decision, however explained that he had been late in appealing within the 90 days because he “misplaced the forms”.

[7] The Social Security Tribunal contacted the Appellant by telephone on March 4, 2014, advising him that he had yet to provide a copy of the reconsideration decision. The Social Security Tribunal advised the Appellant to request a copy of the reconsideration decision from Service Canada and to provide the Social Security Tribunal with a copy once he received it.

[8] The Appellant provided a copy of the reconsideration decision (along with the hearing file) on or about March 24, 2014. On March 25, 2014, the Appellant contacted the Social Security Tribunal to enquire as to whether it had received the reconsideration decision from him. The Social Security Tribunal contacted the Appellant on March 26, 2014 and confirmed that it had received the reconsideration decision and now considered the appeal complete. The notes on file indicate that the “next steps and appeal process” were verbally explained to the Appellant.

[9] On April 15, 2014, the Social Security Tribunal wrote to the Appellant as follows:

This letter is to confirm that the General Division of the Social Security Tribunal of Canada has received your Notice of Appeal. It appears to have been filed more than 90 days after the date that you received your Employment and Social Development Canada reconsideration decision.

The Tribunal has the authority to extend the appeal period under certain circumstances, but in no case can an extension be granted if more than one year has passed since you received the reconsideration decision. A Member of the General Division of the Tribunal will review the file to determine whether or not an extension of time should be allowed.

[10] The Social Security Tribunal did not indicate in its letter dated April 15, 2014 when it considered the Notice of Appeal to have been communicated to the Appellant. The Social Security Tribunal also did not indicate how it determined that the Notice of Appeal appeared to have been filed more than 90 days after the Appellant had received the reconsideration decision.

[11] The Social Security Tribunal did not document any requests that the Appellant address these four factors, but the Appellant nonetheless wrote to the Social Security Tribunal on April 22, 2014. He acknowledged that his Notice of Appeal was late, and explained that he must have misplaced the papers.

[12] On August 7, 2014, the Respondent filed submissions. The Respondent’s submissions did not address the issue of the lateness of the filing of the Notice of Appeal.

[13] On December 5, 2014, the Member of Parliament for Hamilton Mountain (as she then was) contacted the Social Security Tribunal on behalf of the Appellant, seeking a status update. The enquiry included a letter from the Appellant in which he sought to “challenge the Oath breakers”, although it is unclear what the Appellant meant by this.

[14] The General Division rendered a decision on March 15, 2015. The General Division refused to grant an extension of time to the Appellant to appeal the reconsideration decision. On June 15, 2015, the Appellant filed an application requesting leave to appeal. The Appeal Division granted leave to appeal on July 16, 2015.

General division decision

[15] The General Division rendered its decision on March 15, 2015. The Appellant had acknowledged in his letter of April 23, 2014 that he was late in filing the Notice of Appeal, but at no time indicated when he might have received the reconsideration decision. 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 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 September 26, 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) therefore was December 25, 2013. The Appellant filed the Notice of Appeal on January 17, 2014 – little more than 3 weeks later.

[16] The General Division also found that the Appellant could have only filed an appeal after he had fully perfected the Notice of Appeal on March 24, 2014. This was more than 90 days after December 25, 2013.

[17] 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 wrote:

[17] The Appellant has an arguable case, and there is no evidence that the Respondent would be prejudiced by a late appeal. However, those two tests have relatively low bars that can be reached easily by many applicants who have not filed an appeal in time. The larger consideration here is the failure of the Appellant to display a continuing intention to appeal, and to provide a reasonable explanation for his delay in doing so. The Appellant has not provided the Tribunal with a compelling reason as to why he was unable to meet the time limit that is set out clearly in the CPP and in correspondence received by him.

[18] The General Division denied an extension of time to the Appellant for filing his Notice of Appeal.

Leave to appeal decision

[19] I granted leave to appeal on the basis that the appeal has a reasonable chance of success, on two grounds:

1. (a) whether it was appropriate for the General Division to de facto apply the deeming provisions of paragraph 19(1)(a) of the Social Security Tribunal Regulations and
2. (b) whether it was appropriate to determine that the Appellant had not brought his application until March 24, 2014.

[20] I also alluded to the issue as to whether the General Division properly exercised its discretion, assuming that the Appellant was late in filing the notice of appeal.

Issues

[21] The issues before me are as follows:

1. 1. What is the applicable standard of review when reviewing decisions of the General Division?
2. 2. Did the General Division properly refuse to exercise its discretion?
3. 3. If so, what is /are the appropriate remedy(ies), if any?

Submissions

[22] In the leave application, the Appellant submitted that he was late in filing the application requesting leave to appeal with the Appeal Division as his family did not help him complete the application form. Beyond that, the Appellant’s reasons for appeal and leave to appeal were incomprehensible. He wrote the following:

They say the Parliament of Canada, affirming that the Canadian Nation is founded upon principles that acknowledge the supremacy of God. . .

Because of the way they took care of property and cause damage.

[23] After leave was granted, the Appellant filed additional documents, all of which are incoherent and irrelevant to the appeal:

• On August 4, 2015, the Appellant filed a copy of an oath of allegiance.
• On August 17, 2015, the Appellant filed a copy of his letter addressed to the Chief Justice of the Supreme Court of Canada, “regarding the Oath of Allegiance Act”. He requested that his appeal be assigned to her for a final decision.
• On August 31, 2015, the Appellant filed a copy of a letter from the Supreme Court of Canada Registry, advising that as it did not appear that he had received any final or other judgment of the Federal Court of Appeal or of the highest court of final resort in a province, or a judge thereof, and that he might have recourse in lower courts, his matter might be premature. The Registry Support Officer of the Supreme Court of Canada also suggested that he seek legal representation to advise him on any rights and remedies that might be available to him.
• On September 28, 2015, the Appellant filed a letter with the Social Security Tribunal requesting that any decisions have “prof [sic] of status and also prof [sic] of authority” in a written form to be put in the file.
• On October 23, 2015, the Appellant filed a “no trespassing” notice.

[24] Counsel for the Respondent filed written submissions on August 31, 2015. He submits that the General Division made no reviewable error when it refused to grant an extension of time. He submits that the General Division weighed the evidence before it and:

reasonably ascertained the date that the Appellant received the Department’s decision which was subject to the request for appeal; the date the Appellant submitted an incomplete application to appeal this decision; and the date that the Appellant completed his application to appeal this decision.

[25] Counsel submits that the General Division identified the applicable law governing late appeals and that it reasonably applied the relevant case law when deciding whether to grant the Appellant an extension of time to pursue his appeal. Counsel submits that ultimately the General Division did not err when it determined that the Appellant was late, failed to show a continuing intention to appeal, and failed to provide a reasonable explanation for his delay in filing his appeal.  Counsel submits that the General Division’s decision “on the grounds upon which leave to appeal was granted, is reasonable and contains no reviewable error that would permit the intervention of the SST Appeal Division”. Counsel submits that the appeal should be dismissed.

Issue 1: Standard of review

[26] The Appellant did not address the issue of the standard of review.

[27] Counsel for the Respondent provided submissions on this issue. He submits that the Appeal Division should conduct what he describes as a “modified standard of review analysis”, which would involve reviewing:

1. 1. the respective roles and expertise of the General Division and the Appeal Division;
2. 2. Parliamentary intent;
3. 3. the degree of deference to be accorded to the General Division;
4. 4. the nature of the questions at issue; and
5. 5. the application of the standards of correctness and reasonableness in practice.

[28] This “modified standard of review analysis” addresses a number of issues which are unnecessary in determining the applicable standard of review on appeals before the Appeal Division, as it addresses, in part, another central issue before the Appeal Division. namely, the nature of the proceedings before the Appeal Division – whether it ought to be an appellate review outright, i.e. a de novo hearing, or an appeal in the nature of a judicial review. This issue is not before me currently.

[29] On the issue of the standard of review, counsel submits that the standard of review is reasonableness for questions of fact and for questions of mixed fact and law. Counsel submits that for questions of law, the Appeal Division should not show deference to the General Division’s decision and should apply a correctness standard. And, when applying the correctness standard, it should undertake its own analysis of the question and decide whether it agrees with the decision-maker’s determination. If not, counsel submits that the reviewing body should substitute its own view and provide the correct answer.

[30] I concur with these submissions. In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada determined that there are only two standards of review at common law in Canada: reasonableness and correctness. Questions of law generally are determined on the correctness standard, while questions of fact and of mixed fact and law are determined on a reasonableness standard. And, when applying the correctness standard, a reviewing body will not show deference to the decision-maker’s reasoning process and instead, will conduct its own analysis, which could involve substituting its own view as to the correct outcome.

[31] The applicable standard of review will depend upon the nature of the alleged errors involved. Subsection 58(1) of the DESDA sets out the grounds of appeal as follows:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (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.

[32] The Appellant has not set out any grounds of appeal under subsection 58(1) of the DESDA. He does not dispute any of the factual or legal findings made by the General Division, nor does he allege that the General Division failed to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction. If ultimately I should find that the General Division erred in law in making its decision, whether or not the error appears on the face of the record, a correctness standard would apply.

[33] While the Appellant has not raised appropriate grounds of appeal, subsection 58(1) of the DESDA nonetheless enables the Appeal Division to determine if there is an error of law, whether or not the error appears on the face of the record. Here, I have identified possible errors of law when the General Division applied the deeming provisions of paragraph 19(1)(a) of the Social Security Tribunal Regulations. Determining whether the deeming provisions apply in the Appellant’s circumstances involves an assessment on the correctness standard.

[34] Determining whether the Appellant had only “brought his application”, i.e. the Notice of Appeal, on March 24, 2014, rather than on January 17, 2014, also involves an assessment on the correctness standard. This is so, as it involves the interpretation of section 52 of the DESDA and sections 23 and 24 of the Social Security Tribunal Regulations.

[35] If the General Division did not properly exercise its discretion -- whether it did so arbitrarily or without regard for the prevailing jurisprudence – could amount to an error of law if it refused to extend the time, without applying established legal criteria or principles. Under these circumstances, this would involve a review on a correctness standard. If there were questions of mixed fact and law in determining the appropriateness of extending the time, this would be assessed on a reasonableness standard.

Issue 2:  Did the general division properly refuse to exercise its discretion to extend the time?

[36] The Appellant’s submissions are of no assistance in this appeal.

Communication of reconsideration decision to the Appellant

[37] Counsel for the Respondent submits that the General Division did not err in determining that the reconsideration decision was communicated to the Appellant by September 26, 2013.

[38] Counsel submits that it was reasonable to conclude that the reconsideration decision was communicated to the Appellant within 10 days after it had been issued to him, for the following reasons:

1. (a) The Appellant had to have received the initial decision within two days after it had been issued (as he had filed a request for reconsideration within that time). Counsel submits that it is reasonable to conclude a letter with the reconsideration, sent to the same address would take roughly the same amount of time to arrive as did the initial decision; and
2. (b) There are analogous circumstances where the communication of documents by regular mail has been deemed to be delivered to a party in a similar amount of time, such as:
   1. i) Paragraph 19(1)(a) of the Social Security Tribunal Regulations, which deems decisions made pursuant to the DESDA to be communicated to a party 10 days after they are mailed;
   2. ii) Subsection 172(3) of the Immigration and Refugee Protection Regulations, which deems assessments to be received by a party seven days after the day on which they are sent to the last address that the applicant provided; and
   3. iii) Rule 128(2) of the Federal Court Rules, which states that documents are considered to have been served 10 days after they have been mailed to an individual’s address.

[39] Counsel submits that, based on a reasonable assumption that the Appellant had received the reconsideration decision from the Department within ten days (i.e. by September 26, 2013, at the latest), the 90-day period to request an appeal to the General Division had expired on December 25, 2013.

[40] Counsel submits that, accordingly, the request for appeal to the General Division which was received on January 17, 2014, was clearly late and therefore, the determination by the General Division that the Appellant was late was reasonable. Counsel submits that, furthermore, the completed request for an appeal was only received on March 24, 2014, which was even further past the 90-day time limit to make such a request.

[41] The Appellant did not suggest when the reconsideration decision might have been communicated to him, but he explained that he was late in filing the Notice of Appeal with the General Division as he had “misplaced the forms”. I note that the Appellant also explained why he was late in filing the application requesting leave to appeal with the Appeal Division, when he was not late and was actually well within the time for filing a leave application. I point this out to counter the assumptions made by the Respondent. On at least two occasions, when the Appellant requested a reconsideration of the initial decision and when the Appellant filed the leave application, the Appellant requested or brought his application relatively soon after he had received a decision. If the Appellant, as a matter of practice, makes requests or files applications early, then who is to say that he did not file the Notice of Appeal with the General Division relatively soon after he had received the reconsideration decision or the General Division’s decision? I use this to illustrate that one ought not make assumptions out of past practices; this would seem to be less desirable than trying to determine a reasonable timeframe within which a reconsideration decision might have been communicated to an appellant.

[42] I agree with counsel that some guidance is desirable in determining when a reconsideration decision might reasonably have been received by an appellant from the Respondent, but it seems that there ought not to be a dogged, rigid adherence to a specific number of days, particularly when the DESDA and the Social Security Tribunal Regulations are conspicuously silent as to when reconsideration decisions might be deemed to have been received. Subsection 19(1) of the Social Security Tribunal Regulations is specific as to the decisions to which it applies; decisions made under only subsections 53(1), 54(1), 58(3), 59(1) or 66(1) of the DESDA are deemed to have been communicated to a party. These subsections relate to those decisions rendered by either the General Division or the Appeal Division, and not by the Respondent. Had Parliament intended that the deeming provisions apply to reconsideration decisions made by the Minister of Employment and Social Development, it could have set this out.

[43] What might be determined to be reasonable may vary, according to the circumstances. For instance, if the Minister mailed a reconsideration decision on December 24, 2015, the passage of ten days would include two and possibly three statutory holidays (Christmas and New Year’s Day and possibly Boxing Day, depending upon the province) and at least one weekend, when typically there is no postal delivery on holidays or Sundays. This could delay delivery and the communication of the reconsideration decision to an appellant beyond ten days. Inclement weather or vast distances from a postal distribution centre could also lead to postal delays. These considerations do not appear to be relevant to the Appellant’s circumstances.

[44] I would be more inclined to deem an application to have been made or brought late, if it was several months after the date a reconsideration decision was issued, but if mere days or perhaps upwards of a couple of weeks were involved, then I might be far less inclined to adhere to a strict 10-day timeframe within which one might reasonably or otherwise expect service of a reconsideration decision to have been effected, particularly if there are any extenuating or mitigating circumstances or factors, short of any statutory guidelines.

[45] In short, while I agree that some guidance is desirable, at the same time, it would be an error of law to de facto apply subsection 19(1) of the Social Security Tribunal Regulations when it has no applicability to reconsideration decisions, or to so rigidly adhere a 10-day deeming provision in the absence of a strict statutory provision in that regard. I recognize that this approach may well court some inconsistency, but the flexibility it affords -- absent any statutory timeframes – provides for an equitable result.

[46] Despite my misgivings about a strict adherence to 10-days timeframe within which reconsideration decisions might be deemed to have been received, I do not find that the General Division erred in trying to determine a reasonable period of time for delivery.

Computation of time

[47] Paragraph 52(1)(b) of the DESDA requires that an appeal of a decision be brought to the General Division within 90 days after the day on which the decision was communicated to the Appellant.

[48] The Respondent submits that, assuming that the Appellant had received the Reconsideration decision from the Department within ten days (i.e. by September 26, 2013, at the latest), the 90-day period to request an appeal to the General Division had expired on December 25, 2013.

[49] Nothing significant turns on it in this particular instance, but I note that section 26 Interpretation Act, R.S.C. 1985, c. I-21, stipulates that, where the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday. Here, the Appellant would have been permitted therefore to bring his appeal on December 26, 2013, rather than on December 25, 2013. The Appellant did not bring an appeal to the General Division until January 17, 2014 however.

Gattellaro and Larkman

[50] The General Division determined that the Appellant had been late in filing his Notice of Appeal. The General Division also determined that the Notice of Appeal had to have been perfected (by filing a copy of the reconsideration decision), before it could be considered to have been filed.

[51] Counsel for the Respondent submits that even the earlier of these two dates occurs after the expiration of the statutorily prescribed 90-day period to appeal. I agree. Given that the Appellant was already late by the time he filed the Notice of Appeal on January 17, 2014, it is purely academic here whether the appeal could be considered to have “been made” only after it was perfected.

[52] The focus of this appeal therefore rests on whether the General Division properly exercised its discretion.

[53] The General Division assessed whether there was a basis upon which it could exercise its discretion and extend the time for filing the Notice of Appeal. It considered and weighed the four factors set out in Gattellaro, though stated that the overriding consideration is that the interests of justice be served. It cited Canada (Attorney General) v. Larkman, 2012 FCA 204 in this regard. While the General Division found that there was an arguable case and that an extension would not cause undue prejudice to any of the parties, the General Division held that in this case the “larger consideration” was what it perceived as the Appellant’s failure to display a continuing intention to appeal, and his failure to provide a reasonable explanation for the delay in filing the Notice of Appeal. The General Division found that the Appellant had failed to provide a compelling reason why he was unable to meet the time limit set out in the Canada Pension Plan and in correspondence received by him.

[54] As I noted in the leave decision, although the General Division cited Larkman, it is not altogether apparent whether the General Division followed it. Not only did the Federal Court of Appeal hold that the overriding consideration is that the interests of justice be served, but it also held that not all of the four questions relevant to the exercise of discretion to allow an extension of time need to be resolved in an applicant’s favour. At paragraphs 61 and 62, the Federal Court of Appeal wrote:

[61] The parties agree that the following questions are relevant to this Court’s exercise of discretion to allow an extension of time:

1. (1) Did the moving party have a continuing intention to pursue the application?
2. (2) Is there some potential merit to the application?
3. (3) Has the Crown been prejudiced from the delay?
4. (4) Does the moving party have a reasonable explanation for the delay?

See Grewal v. Canada (Minister of Employment & Immigration), [1985] 2 F.C. 263 (C.A.); Muckenheim v. Canada (Employment Insurance Commission), 2008 FCA 249 (CanLII) at paragraph 8.

[62] These questions guide the Court in determining whether the granting of an extension of time is in the interests of justice: Grewal, supra at pages 277-278. The importance of each question depends upon the circumstances of each case. Further, not all of these four questions need be resolved in the moving party’s favour. For example, “a compelling explanation for the delay may lead to a positive response even if the case against the judgment appears weak, and equally a strong case may counterbalance a less satisfactory justification for the delay”: Grewal, at page 282. In certain cases, particularly in unusual cases, other questions may be relevant. The overriding consideration is that the interests of justice be served. See generally Grewal, at pages 278-279; Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41 (CanLII) at paragraph 33; Huard v. Canada (Attorney General), 2007 FC 195 (CanLII), 89 Admin LR (4th) 1.

(My emphasis)

[55] Larkman has been recently followed in Rosenburg v. Canada (National Revenue), 2015 FC 549 and Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156, though the applicant in each of these cases had satisfied four of the Larkman considerations.

[56] Counsel for the Respondent submits that the General Division noted that the Gattellaro test involved considering four factors, but that the overriding consideration is that justice be done between the parties.

[57] Counsel for the Respondent submits that, taken as a whole, the General Division did not err in determining that an extension of time to appeal the reconsideration decision was warranted when assessed in light of the Gattellaro factors. While the General Division decided that there was an arguable case and that there was no prejudice to the Respondent, counsel submits that the General Division reasonably referred to the Larkman and Pentney decisions, which instruct that the underlying consideration is that the interests of justice be served. Counsel submits that since the test is non-conjunctive, the General Division was well within its authority, and acted reasonably, when it refused to grant an extension of time to the Appellant when it perceived that there was no reasonable explanation for the delay and no apparent continuing intention to pursue the appeal.

[58] There is no question that the General Division considered the Gattellaro factors, but is that alone sufficient to satisfy the Larkman test, that the overriding consideration is that justice be done between the parties?

[59] Ultimately the Federal Court of Appeal in Larkman determined whether it was in the interests of justice that the extension of time be granted to Ms. Larkman. It found that although the applicant there could not satisfactorily explain several months of delay, she should be permitted to continue her quest, which was seen to have some potential merit that, if successful, would affect only her and any descendants she might have, would undo serious misconduct and reverse the effects of a policy condemned by a Royal Commission and our highest Court as oppressive and discriminatory. The Federal Court of Appeal found that it was in the interests of justice, and therefore granted Ms. Larkman’s motion for an extension of time.

[60] It seems that it may be insufficient to restrict oneself to a consideration of the Gattellaro factors, when determining whether justice is done between the parties, as there may be other considerations.

[61] As I stated in my leave decision, it appears that the General Division may have based its decision on an erroneous finding of fact, when it suggested that the Social Security Tribunal had written to the Appellant and clearly stated that he was required to provide compelling reasons why he was unable to meet the time limit. While it seems certain that the Social Security Tribunal provided the Appellant with this advice verbally, as evidenced by the notes of a telephone conference with the Social Security Tribunal on March 4, 2014, and by the fact that the Appellant provided an explanation on April 23, 2014, there is no documentation from the Social Security Tribunal to the Appellant of which I am aware, requiring him to address each of the four factors listed above in paragraph 9, or what the consequences might be if he failed to do so. I do not know what impact written confirmation might have had on the Appellant, if anything.

[62] Also, the General Division inferred -- probably correctly -- that the “misplaced papers” which the Appellant referred to in his explanation was necessarily the Notice to Appeal form. From this, the General Division concluded that there was no continuing intention or any reasonable explanation, as the Appellant could have readily obtained these forms on the website of the Social Security Tribunal and then filed the Notice of Application on time. From what I can determine, there was no evidence before the General Division as to when the Appellant might have misplaced the forms and when he might have taken steps to replace them, if any, or if he simply relocated them. There is no evidence also as the Appellant’s ability to have readily replaced the forms. There is some suggestion from him that he might have been reliant on others to assist him in completing the forms (e.g. AD1A), but it is unknown whether this might have been a consideration at all. These were legitimate considerations which could have been addressed by the Appellant and which could have strongly impacted the issues as to whether there was a reasonable explanation for the delay and a continuing intention.

[63] It does not appear that the General Division undertook any analysis outside of the Gattellaro considerations, or that it considered the overall interests of justice. Making reference to Larkman does not necessarily mean that it applied the principles set out therein. This constitutes an error.

Remedies

[64] I find that, given the circumstances of this matter and taking these factors into account, the granting of an extension of time serves the interests of justice.

Conclusion

[65] The Appeal is granted and an extension of time is granted to the Appellant to file the Notice of Appeal.

[66] This matter is referred to the General Division for a full reconsideration as to whether the Appellant can be found disabled for the purposes of the Canada Pension Plan by his minimum qualifying period, and continuously disabled since then. This by no means of course determines the outcome of any hearing which the General Division may conduct.

[67] 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.