Canada Pension Plan (CPP) disability

Reasons and decision

Introduction

[1] This is an application to rescind or amend the decision of the Appeal Division rendered on April 23, 2014. One of my colleagues conducted an in-person hearing on April 17, 2014 and, after receiving evidence and hearing submissions, determined that the Applicant did not have a severe disability as defined by the Canada Pension Plan, by her minimum qualifying period of December 31, 2009. The Applicant indicates that she received the decision of my colleague on April 23, 2014. Her new counsel filed an application to rescind or amend with the Social Security Tribunal on December 29, 2015. To succeed on an application to rescind or amend, the Applicant must meet the provisions set out in section 66 of the Department of Employment and Social Development Act (DESDA).

Issue

[2] Has the Applicant met the provisions set out in section 66 of the DESDA?

Submissions

[3] Counsel for the Applicant submits that, as the decision of the Appeal Division rendered on April 23, 2014 made no mention of six assessments, the Applicant’s previous counsel must have neglected to file them with the Social Security Tribunal. The reports included the following:

1. discharge summary of Drake Medox Active Rehabilitation, dated June 29, 2007 (4 pages);
2. consultation report of Royal Inland Hospital, dated July 28, 2008 (2 pages);
3. pain management assessment of Salmon Arm Medical, dated July 6, 2011 (2 pages);
4. orthopaedic assessment of Dr. Kenneth C. Hill, dated July 25, 2011 (8 pages);
5. pain management assessment of Salmon Arm Medical, dated September 28, 2011 (1 page); and
6. medical assessment of Dr. P.T. Raghavan, dated May 2, 2013 (2 pages).

[4] The Respondent has not filed any written submissions in respect of the application to rescind or amend.

The law

[5] Section 66 of the DESDA states:

Amendment of decision

1. 66. (1) The Tribunal may rescind or amend a decision given by it in respect of any particular application if
2. (a) in the case of a decision relating to the Employment Insurance Act, new facts are presented to the Tribunal or the Tribunal is satisfied that the decision was made without knowledge of, or was based on a mistake as to, some material fact; or
3. (b) in any other case, a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.
4. (2) An application to rescind or amend a decision must be made within one year after the day on which a decision is communicated to the appellant.
5. (3) Each person who is the subject of a decision may make only one application to rescind or amend that decision.
6. (4) A decision is rescinded or amended by the same Division that made it. (My emphasis)

Analysis

[6] The Applicant indicates that she received the decision of the Appeal Division on April 23, 2014. She did not file an application to rescind or amend however until December 29, 2015, approximately 20 months after she had received the decision of the Appeal Division.

[7] Under subsection 66(2) of the DESDA, an application to rescind or amend a decision must be made within one year after the day on which a decision is communicated to an appellant. The Applicant in this case was fully more than eight months late in filing an application to rescind or amend.

[8] Section 66 of the DESDA does not confer any jurisdiction or authority upon the Appeal Division to extend the time for filing an application to rescind or amend. The DESDA is definitive that any applications to rescind or amend be made within one year. I am left with no option but to dismiss the application to rescind or amend on this basis alone.

[9] Even if the Applicant had not been late in filing an application to rescind or amend, I would have had to be satisfied that the new material facts that are presented could not have been discovered at the time of the hearing with the exercise of reasonable diligence. This would have involved determining whether:

1. There was a new material fact, i.e. the evidence must reasonably be expected to affect the result of the prior hearing (the “materiality” test); and
2. The new fact could not have been discovered at the time of the original hearing with the exercise of due diligence (the “discoverability” test).

[10] The Applicant did not explain how any of the “new” facts or any of the opinions set out in the medical records listed in paragraph [3] above meets either the materiality or discoverability tests.

[11] Clearly, however, the Applicant would not have been able to meet the “discoverability” test set out under paragraph 66(1)(b) of the DESDA, as the “new” facts were not only in existence, but were in the Applicant’s possession. The Applicant’s counsel indicates that the medical assessments had been provided to the Social Security Tribunal and then subsequently returned to the Applicant, following the hearing in April 2014.

Conclusion

[12] As the Application to Rescind or Amend the decision of the Appeal Decision rendered on April 23, 2014 fails to meet the requirements under paragraph 66(1)(b) and subsection 66(2) of the DESDA, it is dismissed.