Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal of Canada is refused.
Introduction
[2] On June 14, 2015 the General Division of the Social Security Tribunal of Canada, (the Tribunal), issued its decision in respect of the Applicant’s appeal of a reconsideration decision. The General Division found that the Applicant was not a person described in s. 42 of the Canada Pension Plan, (CPP). Accordingly, he was not entitled to a CPP disability pension. The Applicant seeks leave to appeal the decision, (the Application).
Grounds of the application
[3] The Applicant asked the Tribunal to reconsider the General Division decision. He stated that he has been unable to work since the 2009 accident and he set out the ways in which his life has changed.
Issues
[4] The Appeal Division of the Tribunal must decide whether the appeal has a reasonable chance of success.
The 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 successFootnote 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.
[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, (DESD), Act. They are,
- (1) a breach of natural justice;
- (2) the General Division erred in law; and
- (3) the General Division based its decision on an error of fact made in a perverse or capricious manner or without regard for the material before it.Footnote 3
Analysis
[7] In order to grant leave to appeal 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 relate to a ground of appeal; and
- there is a reasonable chance that the appeal would succeed on this ground.
For the reasons set out below the Appeal Division is not satisfied that this appeal would have a reasonable chance of success.
[8] In his Application, the Applicant did not refer to any of the stated grounds of appeal. Instead, he set out the ways in which the accident has affected his life. His dissatisfaction with the General Division decision is clear. He specifically asked that the Tribunal reconsider the decision. Not only should the Tribunal reconsider his appeal, it should also find in his favour.
[9] The Appeal Division considered the Application with a view to determining whether it disclosed any error on the part of the General Division.
[10] In the view of the Appeal Division, the General Division decision does not reveal that the Member committed a breach of natural justice or otherwise exceeded his jurisdiction or refused to act. The Applicant was given an opportunity to put forward his appeal, to file supporting documentation and to give oral testimony at the hearing. In addition, he was represented by counsel of his choice, providing him an opportunity to respond to questions and to make his case.
[11] With respect to the question of a possible error of law, the Appeal Division finds that the General Division properly identified the correct minimum qualifying period date, (MQP), namely December 31, 2011. The General Division Member also properly identified the legal test for a finding of severe and prolonged disability, and made the appropriate legal analysis. The General Division found that the Applicant had failed to displace the presumption of retained work capacity in that he had successfully completed a ten-month retraining or upgrading programme but had not looked for work since that programme ended in April 2010. The Appeal Division finds that in its application of the law, including case law, to the facts of the Applicant’s case the General Division did not commit an error of law regardless of whether the error appears on the face of the record.
[12] The Appeal Division also finds that the General Division assessed the totality of the medical and other evidence with a view to determining whether or not the Applicant had been suffering a severe and prolonged disability on or before the MQP. That the General Division Member had regard to all of the material before him when he did so, is demonstrated by fact that he recorded and summarised the Applicant’s testimony, the medical evidence and the submissions of the parties. Also, in reaching his conclusion that the Applicant’s conditions were not severe and prolonged, the General Division Member considered the Applicant’s age, education, work experience, the efforts he made to finds alternative employment as well as the documentary evidence.
[13] The Appeal Division finds that the General Division Member provided cogent reasons for his conclusions. Consequently, the Appeal Division finds that the General Division did not commit any errors of fact with regard to how it analysed the evidence that arose in the case.
[14] Furthermore, the points that the Applicant raised were all made at the hearing or arose from the evidence. The General Division has already made a determination regarding these points. The Appeal Division is not persuaded that the Member has erred in any respect such as to give rise to a ground of appeal as set out in subsection 58(1) of the DESD Act.
[15] The Appeal Division understands that the Applicant remains convinced that he is entitled to a CPP disability pension. However, a finding of “severe and prolonged” disability must conform to the strict requirements of the statute; it cannot be based on an applicant’s self- assessment. In the circumstances, the Appeal Division is not satisfied that the Applicant has raised an arguable case such that it would permit the Appeal Division to grant leave.
Conclusion
[16] The Application is refused.