Canada Pension Plan (CPP) disability

Decision

[1] Leave to appeal to the Appeal Division of the Social Security Tribunal of Canada, (the Tribunal), is refused.

Introduction

[2] The Applicant applied for a Canada Pension Plan (CPP) disability pension.  The Respondent denied her application both initially and upon reconsideration. The reconsideration decision was dated January 23, 2014. (GD2-13-14) On April 28, 2015, Counsel for the Applicant wrote to the Tribunal asking the Tribunal to “start an appeal process in this matter.”

[3] It must be noted that at no time did the Applicant file a notice of appeal that conformed to the Social Security Tribunal Regulations. However, this failure was not determinative of the General Division decision nor is it determinative of the current Application.

[4] On September 22, 2015, a Member of the General Division of the Tribunal issued a decision in which he held that,

1. No appeal had been filed with the Tribunal after the 90-day limit,
2. In accordance with paragraph 52(1)(b) of the DESD Act [Department of Employment and Social Development Act], the Appellant had until April  27, 2014 to file an appeal;
3. In accordance with paragraph 52(1)(b) of the DESD Act in no case can the Tribunal permit an appeal be brought more than one year after the day on which the decision is communicated to the Appellant.

Grounds of the application

[5] On October 7, 2015, Counsel for the Applicant filed a document asking the Tribunal to grant the Applicant an extension of time to file a notice of appeal in this matter.  (AD1-1-2) Counsel for the Applicant argues the factors set out in Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 883.  In Counsel’s submission there is ample reason for the Appeal Division to allow the extension of time.

[6] The Appeal Division infers that Counsel is really asking for leave to appeal the General Division decision.

Issue

[7] The Appeal Division must decide if the appeal has a reasonable chance of success.

Applicable law

[8] Leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division.^{Footnote 1}   To grant leave, the Appeal Division must be satisfied that the appeal would have a reasonable chance of success^{Footnote 2}.  In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41 as well as in Fancy v. Canada (Attorney General), 2010 FCA 63, the Federal Court of Appeal equated a reasonable chance of success to an arguable case. In Canada (Attorney General) v. Carroll^{Footnote 3}the Federal Court opined that, “an Applicant will raise an arguable case if she [or he] ... raises an issue not considered ... or can point to an error" in the decision.

[9] There are only three grounds on which an appellant may bring an appeal.  These grounds are set out in section 58 of the Department of Employment and Social Development Act, namely, breaches of natural justice; error of law; or error of fact.^{Footnote 4} However, to grant leave, the Appeal Division must be satisfied that the appeal would have a reasonable chance of success. This means that the Appeal Division must first find that, were the matter to proceed to a hearing, at least one of the grounds of the Application relates to a ground of appeal and that there is a reasonable chance that the appeal would succeed on this ground.

[10] For the reasons set out below the Appeal Division finds that the Applicant has not raised an arguable case.

Analysis

[11] The DESD Act sets out time limits within which an appeal may be brought to the Tribunal.  In the case of appeals to the General Division, those time limits are set out at section 52 of the DESD Act.

1. 52. Appeal - time limit – (1) An appeal of a decision (of the Minister) must be brought to the General Division in the prescribed form and manner and within,
2. (a) in the case of a decision made under the Employment Insurance Act, 30days after the day on which it is communicated to the appellant; and
3. (b) in any other the case, 90days after the day on which it is communicated to the appellant

[12] Subsection 52(2) provides that the General Division may allow further time within which an appeal may be brought, but in no case may an appeal be brought more than one year after the day on which the decision is communicated to the appellant.

[13] The trouble with the present Application is that, as the General Division Member found, the Applicant did not file a complete appeal with the Tribunal within the time frame for filing an appeal of an Income Security decision. Furthermore, the Tribunal received the letter of April 28, 2015 more than one year after the reconsideration decision was communicated to the Applicant.

[14] The General Division correctly found that paragraph 52(1)(b) of the DESD Act was engaged.  The mandatory language of the subsection leaves no doubt that the General Division had no jurisdiction to proceed on this matter.  Quite simply, the Applicant was too far out of time by the time the Tribunal received the letter of April 28, 2015.

[15] Consequently, the Appeal Division finds that no error of any kind is disclosed by the decision of the General Division.  Thus, the Appeal Division is not satisfied that the appeal would have a reasonable chance of success.  Leave to appeal cannot be granted in this case.

Conclusion

[16] The Application is refused.