Canada Pension Plan (CPP) disability

Decision

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

Introduction

[2]  In a decision dated October 16, 2015, the General Division of the Tribunal found that the Applicant did not have a disability that met the definition of “severe and prolonged” contained in section 42 of the Canada Pension Plan, (CPP). Thus, the Applicant was not entitled to a CPP disability pension.  The Applicant seeks leave to appeal the decision, (the Application).

Grounds of the application

[3] The Appellant based the Application on the fact that he had additional, medical evidence to support his position that he had a severe and prolonged disability prior to the end of his minimum qualifying period, (MQP). He also stated that he had made contributions to the CPP for 34 years. His submissions consisted of the following:

“Because the medical evidence previously submitted was not clear to the Minimum Qualifying Period (MQP) and I have new evidence to support that my disability occurred in the qualifying year.

I have also paid into CPP for 34 years.”

The law

[4] The Department of Employment and Social Development, (DESD), Act provides for three grounds of appeal. These grounds are an error of law; error of fact; or a breach of natural justice or errors respecting the jurisdiction of the General Division.^{Footnote 1}  Leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division.^{Footnote 2} To grant leave, the Appeal Division must be satisfied that the appeal would have a reasonable chance of success.^{Footnote 3}  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.

[5] 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. The Appeal Division must then determine whether 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.

[6] The Applicant’s challenge to the General Division decision in framed in terms of supplying additional medical evidence that was missing from the General Division that he considers material to a finding that he suffers from a severe and prolonged disability. He has not pointed to any possible breach of natural justice or error of law or fact that the General Division may have committed. What the Applicant is contending is that if the General Division had had this evidence it would not have made the decision it did. Given the circumstances of the Applicant’s case, the Appeal Division determined that it was more expedient to decide the matter.

[7] The Appeal Division finds that this is not a true application for leave to appeal; rather it is properly a “new facts” application (application to rescind or amend a decision) a process that is provided for under section 66 of the DESD Act. In this regard, it must be noted that the Appeal Division is not the correct forum to which the Applicant should bring this application as an application to rescind or amend a decision is to be made to the Division that made the decision. In this case, the General Division.

[8] Paragraph 66 (1)(b) of the DESD Act would apply in this case.  The paragraph states,

66. Amendment of decision – (1) the Tribunal may rescind or amend a decision given by it in respect of any particular application if

(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.

[9] If the Applicant desires to make an application under this section, he must bear in mind that there is time limit in which to make the application. The time limit is set out in the following paragraph of section 66 of the DESD Act:

(2) Time limit – 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. (in this case within one year of October 19, 2015).

[10] The Applicant must also be aware that he must make the application to the General Division of the Tribunal; not the Appeal Division.

[11] In the circumstances, the Tribunal is not satisfied that the Appeal would have a reasonable chance of success.

Conclusion

[12]  The Application for Leave to Appeal is refused.