Canada Pension Plan (CPP) disability

Reasons and decision

Decision

The application for leave to appeal is granted and the appeal is allowed.

Introduction

[1] The Applicant seeks leave to appeal a decision of the General Division of the Social Security Tribunal (Tribunal) refusing an extension of time to appeal.

Background

[2] The Applicant submitted an application for CPP disability benefits on February 1, 2013. He indicated that he was 52 years old, had a college education and was last employed as a construction worker, a job he left in September 1994, following a workplace injury.

[3] The Respondent denied the application initially and, in a decision letter dated October 15, 2013, denied the application upon reconsideration on the grounds that his disability was not severe and prolonged as of his minimum qualifying period (MQP), which ended on December 31, 1995.

[4] On January 13, 2014, the Applicant filed an incomplete appeal with the General Division. On March 3, 2014, the Tribunal asked the Applicant and his authorized representative to provide a copy of the reconsideration letter that was the subject of the appeal, allowing that, if the missing document was received by June 11, 2014, the appeal would be considered to be on time. The Appellant’s representative did not submit the missing document until September 15, 2014, outside the 90-day time limit.

[5] In a decision dated May 11, 2015, the General Division determined that the Applicant had been late in filing his appeal and refused an extension of time. In doing so, the General Division found that he lacked a reasonable explanation for the delay or a continuing intention to pursue his appeal. Above all, it found that the Applicant did not have an arguable case.

[6] The Applicant filed an application requesting leave to appeal with the Appeal Division of the Tribunal. In a decision dated December 2, 2015, the Appeal Division refused leave after finding that none of the allegations of error directed against the General Division had a reasonable chance of success on appeal.

[7] The Applicant then applied for judicial review at the Federal Court. On December 6, 2016, the Honourable Justice James Russell granted the application and ordered on consent that the matter be referred back to a different member of the Appeal Division for redetermination.

[8] In the interests of justice and efficiency, I will combine consideration of leave and assessment of this matter on its merits. I have decided that an oral hearing is unnecessary and that the appeal can proceed on the basis of the documentary record for the following reasons:

1. There are no gaps in the file or need for clarification;
2. The form of hearing respected the requirements under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Issues

[9] The issues before me are as follows:

1. Does the appeal have a reasonable chance of success?
2. If so, did the General Division err in denying the Applicant an extension of time to appeal?
3. If the answer to (b) is “yes,” what remedy is appropriate?

The law

Department of Employment and Social Development act

Under paragraph 52(1)(b) of the Department of Employment and Social Development Act (DESDA), an appellant has 90 days to bring his or her appeal to the General Division. TheGeneral Division can decide to allow further time for an appellant to appeal pursuant to subsection 52(2), but in no case may an appeal be brought to the General Division more than one year after the day on which the Respondent’s reconsideration decision was communicated to the appellant.

[10] According to subsections 56(1) and 58(3) of the DESDA, an appeal to the Appeal Division may be brought only if leave to appeal is granted. The Appeal Division must either grant or refuse leave to appeal. Subsection 58(2) of the DESDA provides that leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.

[11] According to subsection 58(1) of the DESDA the only grounds of appeal are the following:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (c) The General Division based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

[12] A leave to appeal proceeding is a preliminary step to a hearing on the merits. It is an initial hurdle for the Applicant to meet, but it is lower than the one that must be met on the hearing of the appeal on the merits. At the leave stage, the Applicant does not have to prove the case.

[13] The Federal Court of Appeal has concluded that the question of whether a party has an arguable case at law is akin to determining whether that party, legally, has a reasonable chance of success – Canada (MHRD) v. Hogervorst; Fancy v. Canada (AG).^{Footnote 1}

Gattellaro

[14] In deciding whether to allow further time to appeal, an administrative tribunal must weigh the four factors set out in Canada (MHRD) v. Gattellaro^{Footnote 2}:

1. (a) A continuing intention to pursue the application or appeal;
2. (b) The matter discloses an arguable case;
3. (c) There is a reasonable explanation for the delay; and
4. (d) There is no prejudice to the other party in allowing the extension.

[15] The weight to be given to each of the Gattellaro factors may differ in each case, and in some cases, different factors will be relevant. The overriding consideration is that the interests of justice be served – Canada (AG) v. Larkman.^{Footnote 3}

Canada pension plan

[16] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension:

1. (b) a disability pension shall be paid to a contributor who has not reached sixty-five years of age, to whom no retirement pension is payable, who is disabled and who
   1. (i) has made base contributions for not less than the minimum qualifying period,
   2. (ii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if an application for a disability pension had been received before the contributor’s application for a disability pension was actually received, or
   3. (iii) is a contributor to whom a disability pension would have been payable at the time the contributor is deemed to have become disabled if a division of unadjusted pensionable earnings that was made under section 55 or 55.1 had not been made.

[17] The calculation of the MQP is important because a person must establish a severe and prolonged disability on or before the end of the MQP.

[18] Paragraph 42(2)(a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he or she is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration, or is likely to result in death.

Submissions

[19] In his application for leave to appeal dated August 10, 2015, the Applicant submitted as follows:

The appeal was submitted within the 90 day time frame after the reconsideration decision was communicated. My counsel and I submit that we have demonstrated a continuing intention to pursue the appeal. My matter discloses an arguable case. I have a reasonable explanation for the delay of not providing the copy of the reconsideration decision. I never received the March 3, 2014 correspondence which was allegedly sent. My counsel did not receive it either. My counsel and I would have surely responded to remedy the procedural matter with respect to the reconsideration decision not having been provided if we would have known that something was missing from the appeal notice. It does not make sense for the General Division to suggest or imply that we abandoned our appeal.

[20] The Applicant further alleged that the General Division failed to observe a principle of natural justice, erred in law and based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

[21] In a letter dated November 9, 2015, the Respondent stated that it was taking no position on whether leave to appeal should be granted or refused.

Analysis

[22] Having reviewed the record, I must agree with the Applicant that the General Division erred in law in rendering its decision.

[23] According to paragraph 24(1)(a) of the Social Security Tribunal Regulations, an appeal of a reconsideration decision to the General Division must be accompanied by, among other information, a copy of that reconsideration decision. Although the Applicant maintains that neither he nor his representative ever received the Tribunal’s March 2, 2015 letter advising them that the reconsideration decision was required, the fact remains that, on a strict basis, their appeal was not completed until more than five months after the expiry of the 90-day application deadline and more than three months after the end of the administrative extension that Tribunal staff had granted them.

[24] Having considered the Applicant’s submissions, the General Division found that his explanation for the delay was unreasonable and his intent to appeal non-continuous. I see no reason to challenge this finding. It is open to the General Division as the trier of fact to assess and assign weight to the available evidence, with a view to establishing facts that it can use to make inferences and draw conclusions. I see no reason to interfere with its conclusions unless they have been made in a “perverse” or “capricious” manner, and there is no indication of that here.

[25] However, I think the General Division misapplied Gattellaro in finding that the Applicant failed to disclose an arguable case. As noted, this phrase is also seen in the jurisprudence surrounding the Appeal Division’s right to refuse leave, as well as the General Division’s powers of summary dismissal. In both cases, an appeal may be halted if there is no reasonable chance of success. This has been consistently held to be a fairly low threshold to meet, permitting dismissal only if there is so little merit to the appeal that it is plain and obvious that it is certain to fail. On this issue, I will defer to my colleague on the Appeal Division, Janet Lew, who undertook a survey^{Footnote 4} of the relevant case law on this subject and concluded:

It is apparent from this line of authorities that when determining the appropriateness of the summary dismissal procedure and deciding whether an appeal has a reasonable chance of success, a decision-maker must determine whether there is a “triable issue” and whether there is any merit to the claim. This requires one to distinguish an “utterly hopeless” from a “weak” case. In the latter case, the evidence in support of a position might be flimsy, but there is at least some factual or evidentiary support for it, whereas in an “utterly hopeless” case, there is no or an inadequate factual foundation to support that position, and the outcome is “manifestly clear.” The weak case would not be appropriate for a summary disposition, as it necessarily involves assessing the merits of the case and examining, i.e. analyzing and assigning weight, to that evidence…

If the standard for an arguable case is “weak,” as opposed to “utterly hopeless,” then it seems to me that the Applicant’s appeal to the General Division falls into the former category, rather than the latter. It is true that the Applicant’s eligibility period ended more than 20 years ago, but, contrary to the suggestion of the General Division, there was at least some documentation on file, albeit very little, to support his position.

[26] The Applicant claimed that his disability—predominantly low back pain—originated with a 1994 workplace accident, and while much of his medical evidence was prepared well after the MQP, there was at least one report on file that predated December 31, 1995 (Ontario Workers’ Compensation Board Summary Report prepared by D.A. Forrester, general practitioner, dated October 24, 1995—GD2-50), and there was another that attributed ongoing vocational impairment directly to his workplace injury of February 1994 (Insurer Examination Report by Geoffrey French, orthopedic specialist, dated April 12, 2004—GD2-95).

[27] In my view, this evidence, to say nothing of the Applicant’s testimony, had he been given an opportunity to make submissions at an oral hearing, suggests that, while Mr. Z. R. might not have had a strong case, he had at least an arguable one. Although the General Division based its finding on the Applicant’s declared intention to “supplement his position” with further information, there was nothing about this statement that necessarily implied his claim was without merit, and it disregarded the evidence that he had already submitted in support of his position. In doing so, the General Division muddied the distinction between a meritless “utterly hopeless” case and a very weak one, thereby improperly discounting a critical Gattellaro factor.

[28] There is no question that the General Division considered the Gattellaro factors, but that consideration alone is insufficient to satisfy the Larkman mandate to serve the interests of justice. It would be unfortunate if the Applicant were denied a hearing on his arguable case simply because he was a few months late in fulfilling what, in the end, is a mere technical requirement in the appeal process.

Conclusion

[29] Based my review, I am satisfied that the Applicant’s appeal not only has a reasonable chance of success, but that it must also ultimately succeed. For that reason, I will dispense with further submissions on the merits and refer this matter back to the General Division for fresh consideration. To avoid any apprehension of bias, it is appropriate in this case that the appeal be assigned to a different member of the General Division.

[30] The application for leave to appeal is granted and the appeal itself allowed.