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Reasons and decision
Introduction
[1] On March 5, 2014 the Social Security Tribunal (Tribunal) received the Applicant’s application to reopen a decision made by a Review Tribunal of the Office of the Commissioner of Review Tribunals (OCRT) issued on May 28, 2003; the hearing had been held on April 2, 2003. The Applicant purported to bring the application under s. 84(2) of the CPP which was no longer in effect as of April 1, 2013. The application has been treated as an application pursuant to subsection 66(1)(b) of the Department of Employment and Social Development Act (DESD Act)
[2] The hearing of this appeal was by On the Record for the following reasons:
- a) The member has decided that a further hearing is not required.
- b) This method of proceeding respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
[3] The Applicant has filed applications for Canada Pension Plan (CPP) disability pension as follows:
a) The Applicant’s initial CPP disability application was dated stamped by the Respondent on January 2, 2002. The Respondent denied the application initially and upon reconsideration. The Applicant’s appeal to the OCRT was heard by a Review Tribunal on April 2, 2003 and dismissed on May 28, 2003 on the basis that his disability was not severe and prolonged in accordance with the CPP criteria as of his December 31, 2002 minimum qualifying period (MQP). This is the decision that the Applicant is now applying to reopen.
b) The Applicant’s application for leave to appeal to the Pensions Appeal Board was refused on January 8, 2004.
c) The Applicant’s initial new facts application was made on December 1, 2004. The Applicant’s appeal of the Respondent’s initial and reconsideration denial of this application was dismissed by a Review Tribunal on June 30, 2005 on the basis “that no new facts were established such as to support a conclusion that there is a reasonable possibility that it could lead the Review Tribunal to change its original decision”. The Applicant did not appeal this decision.
d) The Applicant made a second new facts application on July 21, 2008. The Applicant’s appeal of the Respondent’s initial and reconsideration denial of that application was dismissed by a Review Tribunal on May 5, 2009. The Review Tribunal determined that “ Where the six documents have produced no new facts that pass the discoverability rule, then, in accordance with Mazzotta v. Canada (Attorney General), 2007 FCA 297, there are no new facts for this Tribunal to consider as being able reasonably to affect the outcome already decided in this case.” The Applicant did not appeal this decision.
e) The Applicant’s second disability application was date stamped by the Respondent on July 7, 2009. The Respondent denied this application initially and upon reconsideration on the basis of res judicata. The Applicant’s appeal to the OCRT was closed on October 13, 2010.
f) This new facts application is dated February 24, 2014 and was received by the Tribunal on March 5, 2014.
The law
[4] Subsection 66(1)(b) of the DESD Act provides that in cases other than a decision relating to the Employment Insurance Act the Tribunal may rescind or amend a decision given by it if a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.
[5] Subsection 66(2) of the DESD Act provides that 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.
[6] Subsection 66(3) of the DESD Act provides that each person who is the subject of a decision may make only one application to amend or rescind that decision.
Issue
[7] Is this application statute barred pursuant to subsections 66(2) and 66(3) of the DESD Act?
Submissions
[8] The Applicant submits that the 2003 OCRT decision should be reopened because he now has proof that his back was in “bad shape” before the Review Tribunal decision; that he was born with the problem; and that over the years it has worsened. He did not make any submissions in response to the Respondent’s position that the application is statute barred.
[9] The Respondent submits that the new facts application is statute barred since it was made more than one year after the original decision was communicated to the Applicant and this is his third new facts application.
Analysis
[10] The Tribunal must determine whether this application is statute barred.
[11] Section 66 of the DESDA replaces the now repealed subsection 84(2) of the CPP. Unlike subsection 84(2) of the CPP, subsection 66(2) provides that a new facts application must be made within one year after a decision is communicated. Also, unlike subsection 84(2) of the CPP, subsection 66(3) imposes a limit of one application per person in relation to a decision.
[12] The 2003 Review Tribunal decision was issued on May 28, 2003 and communicated to the Applicant at that time. This application was received by the Tribunal close to eleven years after the decision. It is being brought far beyond the one year time limit in subsection 66(2) of the DESD Act. Further, this is the Applicant’s third new facts application while subsection 66(3) permits only one application.
[13] The Tribunal finds that this application is statute barred because it was not made within one year of the decision being communicated and because it is the Applicant’s third new facts application.
[14] Having found that the application is statute barred, it is not necessary to make a determination whether the evidence establishes “new facts” within the meaning of subsection 66(1)(b) of the DESD Act.
Conclusion
[15] The application is dismissed.