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Decision
[1] Leave to Appeal to the Appeal Division of the Social Security Tribunal, (the Tribunal), is refused.
Introduction
[2] On March 12, 2014, the Tribunal received the Applicant’s Notice of Appeal from a reconsideration decision dated December 2, 2013. On August 25, 2015 a Member of the Tribunal’s General Division adjudicated the appeal and issued his decision. The Member found that the Applicant did not have a severe and prolonged disability on or before the end of his minimum qualifying period, (MQP) of December 31, 2008; thus, he did not qualify for a Canada Pension Plan, (CPP), disability pension.
[3] The Appeal before the General Division was in respect of the Applicant’s fourth application for a CPP disability pension that he made on March 15, 2013. In regard to this Application the Applicant’s MQP, which had been determined by reference to the CPP late application provisions, was determined to be December 31, 2007. The General Division established the Applicant’s MQP as starting from the end of this prior MQP.
[4] On July 28, 2008 a Review Tribunal had denied his appeal. On March 29, 2009, the Pension Appeals Board refused the Applicant Leave to Appeal the decision of the Review Tribunal.
[5] Accordingly, under the then applicable statutory provision, namely, subsection 84(1) of the CPP, the decision of the Review Tribunal was binding upon the Applicant. The General Division could examine the Applicant’s physical and mental condition only for the period January 1, 2008 to December 31, 2008.
Grounds of the application
[6] The Applicant’s reasons for seeking leave to appeal are contained in two submissions to the Tribunal, AD-1 and AD1-A. This second submission, AD1-A, was made in response to communication from the Tribunal that asked the Applicant to set out the reasons for the Application. Counsel for the Applicant provided the following reasons:
“The reason for appealing the decision is that it is our position that the worker has a condition that is severe and prolonged under the provisions of the Act. Some statements of fact which were presenter to the General Division were that the worker has chronic pain in his lower back right hip right shoulder and neck. He suffers from PTSD and is learning disabled. He cannot sit or stand for any long periods of time and requires assistance with his personal needs and household chores.
The worker has disc herniations at the L3-L4 and L4-LS levels. He scored 66% in the Oswestry index which is categorized as a cripple status. He was prescribed OxyContin for his back pain. It should be noted that the worker stopped working as a Carpenter is 2006 but he had been on light duties since 2000.
The worker was diagnosed with an adjustment disorder with depressed mood, depression secondary to alcohol abuse and mood disorder due to a generalized medical condition. An anti-depressant drug was recommended.
The worker was on light duties at his work since 2000. He was forced to stop working in 2006 due to back pain. He is learning disabled which would preclude him from learning any new job skills. It is our position that he should be entitled to Canada Pension Disability benefits.”
Issue
[7] The Appeal Division must decide whether the Appeal would have 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 In Tracey v. Canada (Attorney General) 2015 FC 1300 the Federal Court observed that the current statutory regime sets out at subsection 58(2) the test that the Appeal Division must apply when determining an application for leave to appeal. “Leave to appeal is refused if the SST-AD is satisfied that the appeal has no reasonable chance of success.” The question for the Appeal Division is, in the context of the present statutory regime, what constitutes a reasonable chance of success?
[9] Subsection 58(1) of the DESD Act provides the only grounds on which an appellant may bring an appeal, namely that the General Division has committed a breach of natural justice or has either failed to exercise or has exceeded its jurisdiction; or has committed either an error of law or an error of fact.Footnote 2
[10] In previous decisions, the Appeal Division has held that to grant leave 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. In Tracey, the Federal Court did not address the question of how the Appeal Division is to be satisfied that an appeal has no reasonable chance of success, noting at paragraph 22 of its decision that this determination was within the expertise of the Appeal Division.
[11] In Bossé v. Canada (Attorney General) 2015 FC 1142 the Federal Court appeared to accept “plain and obvious” as the appropriate test for determining whether an appeal has no reasonable chance of success.Footnote 3 For its part, the Appeal Division finds it helpful to enlist the plain and ordinary meaning of the term “reasonable chance” and to adopt the approach taken by the Federal Court of Appeal in Villani v. Canada (Attorney General) 2001 FCA 248.
[12] In VillaniFootnote 4 Isaacs, J. A. specifically approved the approach taken by the Pension Appeals Board, (PAB), in Barlow, wherein the PAB applied the dictionary definition of the words “regularly; pursuing; substantial; gainful; and occupation” to assist its determination of Ms. Barlow’s eligibility for a CPP disability pension. The Appeal Division takes a similar approach to determining whether or not the appeal would have a reasonable chance of success. The Oxford DictionaryFootnote 5 defines “reasonable’ variously as fair, sensible or fairly good or average. Ironically, the on-line version of the dictionary gives the following example of usage: “I am not satisfied that the appellant has any reasonable chance of success if allowed to proceed with the appeal.”
[13] 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. Thus, the Appeal Division finds that, in order to grant the Application, it must be satisfied that the appeal has a fairly good or average chance of being successful or that the Applicant has raised an arguable case. The Appeal Division does not have to be satisfied that success is certain.
Analysis
[14] For the following reasons the Appeal Division refuses to grant the Application.
[15] The Appeal Division finds that the submissions made in the Application do not relate to a ground of appeal set out in the Department of Employment and Social Development, (DESD), Act. that would have a reasonable chance of success. They are no more than a statement of the Applicant’s disagreement with the decision of the General Division and a reiteration of the Applicant’s belief that he suffers from a disability that is severe and prolonged within the meaning of the CPP and that he is entitled to a disability pension.
[16] While the Applicant has expressed his disagreement with the decision and his continuing belief that he qualifies for a CPP disability pension, the Applicant has not shown in what way the General Division either breached a principle of natural justice or exceeded or refused to exercise its jurisdiction. Neither has the Applicant shown how the General Division may have erred in law or based its decision on an error of fact that it made in a perverse or capricious manner or without regard for the material before it.
[17] The Appeal Division comes to this finding noting that on September 24, 2015 the Tribunal wrote to the Applicant and to his Counsel to advise them of deficiencies in the Application. Among the deficiencies that the Tribunal asked be rectified is that the grounds of appeal should be set out. The response of Counsel for the Applicant does no more than list the Applicant’s current medical status.
[18] Notwithstanding this lacuna in the Application, the Appeal Division examined the General Division decision with a view to determining whether any of the statutory grounds of appeal had been breached. The Appeal Division finds that there has been no breach of subsection 58(1) of the DESD Act. Specifically, the Appeal Division finds that there has been no breach of natural justice in regards to the hearing, which was conducted on the basis of material that was presented to the General Division. The Applicant was advised well in advance of the hearing date that the General Division Member intended to make a decision on the basis of the documents and submissions that had been filed. (GD0) He did not indicate that this was a form of hearing in which he would not participate. Furthermore, the Applicant had sufficient time to make written submissions and to file materials he wished to be considered with the General Division. The Applicant was also allowed ample time to voice his objection to the form of hearing if, indeed, he had any. The Appeal Division finds that no breach of natural justice is revealed.
[19] With respect to any possible error of law, the Appeal Division finds that the General Division identified and applied the correct law with respect to the Applicant’s MQP and the binding nature of the previous Review Tribunal decision; as well as the applicable law respecting a determination of severe and prolonged disability taking into consideration the peculiar circumstances of the Applicant.
[20] With respect to error of fact, the Appeal Division notes that the medical and psychological conditions complained of in the Applicant’s Notice of Appeal were the conditions that the General Division considered. The General Division found that on the basis of the medical evidence that was before it, the Applicant had not met his onus to establish that, on or before his MQP of December 31, 2008, the Applicant had not met his onus to show that he suffered from a physical or mental condition that was severe and prolonged. The Appeal Division finds no error of fact in regard to the General Division examination of and assessment of the medical evidence.
Conclusion
[1] Counsel for the Applicant has indicated disagreement with the decision of the General Division. Counsel has submitted that the medical evidence establishes that the Applicant has a severe and prolonged disability as defined by the CPP. For the reasons set out above the Appeal Division finds that the Applicant has not met his onus to satisfy it that the appeal would have a reasonable chance of success. Accordingly, leave to appeal cannot be granted.
[2] The Application is refused.