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Reasons and decision
Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated August 28, 2015. After conducting an in-person hearing, the General Division determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan, as it found that his disability was not “severe” at his minimum qualifying period of December 31, 2005. After receiving a copy of the General Division decision in late November 2015, the Applicant filed an application requesting leave to appeal on February 22, 2016. To succeed on this application, I must be satisfied that the appeal has a reasonable chance of success.
Issue
[2] Does the appeal have a reasonable chance of success?
Submissions
[3] The Applicant submits that the General Division based its decision on erroneous findings of fact or incomplete findings. He submits that he had not been provided with an opportunity to present his case as he did not have sufficient time to properly prepare for the hearing, owing to difficulties in retaining legal counsel in a timely manner. He explains that the first lawyer he retained was not only disbarred, but had also lost the Applicant’s files. The Applicant submits that he was unable to rebuild his file in time for the hearing before the General Division. The Applicant also submits that while he was eventually able to retain other counsel, his new counsel did not adequately represent him. The Applicant explains that, indeed, he ended up presenting most of his case on his own.
[4] The Applicant submits that it should have become obvious to the General Division that the Applicant required more time to properly prepare for the hearing, to obtain documents and secure adequate legal assistance, and that it therefore should have adjourned the hearing altogether. The Applicant submits that an appeal would enable him to fully document his case and “allow for the just decision to be delivered, based on all and complete input”.
[5] The Social Security Tribunal provided a copy of the leave materials to the Respondent, but the Respondent did not file any written submissions.
Analysis
[6] Subsection 58(1) of the Department of Employment and Social Development Act (DESDA) sets out the grounds of appeal as being limited to the following:
- (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) The General Division based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[7] I need to be satisfied that the reasons for appeal fall within any of the grounds of appeal and that the appeal has a reasonable chance of success, before leave can be granted. The Federal Court of Canada recently approved this approach in Tracey v.
Canada (Attorney General), 2015 FC 1300.
(a) Natural justice
[8] The Applicant alleges that the General Division should have recognized that he was not adequately prepared for the hearing, and therefore adjourned the proceedings.
This is the first instance of which I am aware in which this allegation has arisen, and there is no indication that the General Division should have been alerted to the fact that the Applicant felt he might have required more time to prepare for the hearing, so that he could obtain more records and secure more adequate legal representation. The Applicant was represented at the proceedings by counsel. The Applicant could have communicated to his counsel that the documentary record was incomplete (assuming that to be the case), and his counsel in turn could have made submissions in that regard. Had the Applicant sought an adjournment of the proceedings and had the General Division been made aware of the Applicant’s concerns that he had inadequate preparation time and an incomplete documentary record, this might have been an appropriate ground of appeal, but this issue that more preparation time was required comes late and was not made at the earliest opportunity, either prior to or during the hearing. The courts have consistently held that the failure to raise any objections at the earliest opportunity amounts to an implied waiver of any perceived breach of procedural fairness or natural justice that may have occurred.
[9] The Applicant indicates that he had inadequate legal representation. Even if that were so, this does not fall within any of the grounds of appeal set out in subsection 58(1) of the DESDA.
[10] I am not satisfied that the appeal has a reasonable chance of success on this ground.
(b) Erroneous findings
[11] The Applicant submits that the General Division based its decision on erroneous findings of fact, as it did not have a complete medical record before it.
[12] The burden of proof rests with an applicant to prove his or her case and to adduce sufficient evidence to this end. Thus, the Applicant ought to have adduced records of any probative value and ensured that they were before the General Division. Otherwise, his option was to seek an adjournment of the proceedings at the earliest time. The burden of proof is one that belongs to the Applicant and not the General Division, and the fact that there may have been an incomplete record is not an error that can be visited upon the General Division. This does not fall within any of the grounds of appeal set out in subsection 58(1) of the DESDA.
[13] The Applicant suggests that if he were to be provided with a second opportunity, he would more fully present his case. However, neither the leave nor the appeal provides an applicant with a second opportunity to reassess his or her claim.
[14] I am not satisfied that the appeal has a reasonable chance of success on this ground.
(c) New facts
[15] The Applicant suggests that if there were a second opportunity, he would more fully present his case. In other words, he would obtain additional medical records to prove that his disability is severe.
[16] While there is no obligation at the Appeal Division to consider any new evidence: Tracey, section 66 of the DESDA permits a party to make an application to rescind or amend a decision, provided that certain requirements are met.
[17] If the Applicant proposes to file additional records in an effort to rescind or amend the decision of the General Division, he must comply with the requirements set out in sections 45 and 46 of the Social Security Tribunal Regulations, and must also file an application for rescission or amendment with the same Division that made the decision. There are strict deadlines and requirements under section 66 of the DESDA for rescinding or amending decisions. Subsection 66(2) of the DESDA requires an application to rescind or amend a decision to have been made within one year after the day on which a decision is communicated to a party, while paragraph 66(1)(b) of the DESDA requires an applicant to demonstrate that the new facts are material and could not have been discovered at the time of the hearing with the exercise of reasonable diligence. Under subsection 66(4) of the DESDA, the Appeal Division in this case has no jurisdiction to rescind or amend a decision based on new facts, as it is only the Division which made the decision which is empowered to do so, which in this case is the General Division.
[18] The General Division based its decision in part on the fact that there was apparently very little medical evidence predating December 31, 2005, but this was not the only basis upon which the General Division based its decision. The General Division also seems to have determined that the Applicant was non-compliant with treatment recommendations, and that his explanations in this regard were unreasonable. Thus, even if the Applicant were to pursue an application to rescind or amend, he would still need to overcome this issue.
Conclusion
[19] The application for leave to appeal is dismissed. .