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 October 16, 2013. (GD2-45)  On May 1, 2015, the Tribunal received a copy of a notice of appeal that had been filed by the Applicant. (GD2-1) On September 24, 2015, a Member of the General Division of the Tribunal issued a decision dismissing the appeal as having been filed more than one year after the date the decision was communicated to the Applicant.

Grounds of the application

[3] Counsel for the Applicant cites all of the grounds under section 58 of Department of Employment and Social Development Act, (the DESD Act).  He cited the Applicant’s mental state as the reason the notice of appeal was filed late.

Issue

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

Applicable law

[5] 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.

[6] 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, (DESD 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.

Analysis

[7] 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.

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,

1. (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
2. (b) in any other the case, 90 days after the day on which it is communicated to the appellant

[8] 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.  It is this latter subsection that gave rise to the General Division decision.

[9] The date on which the Review Tribunal decision was communicated to the Applicant and the date on which she filed the notice of appeal are not in dispute. Neither is it in dispute that the notice to appeal was filed late.  In fact, when the Applicant filed the notice of appeal it was filed more than 18 months after the date on which the Review Tribunal decision had been communicated to her.  This meant that the filing was caught by the operation of subsection 52(2) of the DESD Act. This section is written in mandatory language.  There is no room for the exercise of discretion.  Thus, the General Division was obliged to invoke subsection 52(2) of the DESD Act and to find that the appeal could not proceed. Put simply, by virtue of the statutory provision, the General Division lacked the requisite jurisdiction to hear the appeal.

[10] 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

[11] The Application is refused.