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Reasons and decision
Decision
The extension of time is granted, but leave to appeal the General Division decision is refused.
Overview
[1] The Applicant seeks to appeal a General Division decision of the Social Security Tribunal of Canada (Tribunal), which determined that the Applicant was entitled to a disability pension under the Canada Pension Plan (CPP). The General Division found that the Applicant had suffered from a severe and prolonged disability on or before his minimum qualifying period (MQP), which in this case was December 31, 1997. The MQP is determined based on contributions that an applicant has paid to the CPP.
[2] The Applicant applied for a disability pension in October 2014, which is nearly seventeen years after his MQP date. The General Division determined that he could not be deemed disabled more than 15 months prior to the date on which he had filed his disability pension application, so in this case the Applicant was deemed disabled in July 2013. Payments for a disability pension begin four months following the deemed date of disability, so payments to the Applicant could begin in November 2013 and continue thereafter.
[3] The Applicant wishes to appeal the start date for payments because, according to the evidence in the record and the General Division’s findings, he was disabled as of his MQP in December 1997.
[4] Applicants have 90 days from the date on which the decision is communicated to file, with the Appeal Division, an application requesting leave to appeal (Application) a General Division decision. In this case, the Applicant had until July 17, 2017, to file his Application. He filed an incomplete Application on July 24, 2017, and perfected his Application on October 13, 2107. In order to pursue his appeal, he must first be granted an extension of time, as his Application was filed beyond the time limit for doing so.
Issues
[5] Should an extension of time to file his application requesting leave to appeal be granted to the Applicant?
[6] Does the Applicant’s appeal of the date for the commencement of payments of his disability pension have a reasonable chance of success?
Legal test
[7] An appeal of a reconsideration decision must be filed with the Tribunal’s General Division within 90 days from the date on which the decision is communicated. Extensions of time may be granted, but in no case may an appeal be brought beyond one year after the date on which the decision is communicated.Footnote 1
[8] In deciding whether to allow an extension of time, Tribunal members must consider and weigh certain criteria as set out in case law. The relevant criteria were set out in Gattellaro,Footnote 2 and they include: whether there is evidence of a continuing intention to pursue the application or appeal; whether the matter discloses an arguable case; whether there is a reasonable explanation for the delay; and, whether prejudice to the other party would result in allowing the extension. The weight to be given to each of the criteria 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.Footnote 3
[9] According to subsection 58(1) of the DESD Act the only grounds of appeal are that:
- 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.
Submissions
[10] The Applicant’s representative submits that the Applicant has been slow in the appeal process, as he has a limited understanding of English and must obtain his representative’s assistance in communicating, as well as understanding, all the correspondence that he has received and that he has sent.
[11] The Applicant’s representative also submits that the Applicant would have applied for a disability pension many years earlier but, because of his limited comprehension of Canadian culture and the English language, as well as the fact that he did not know about the availability of the CPP disability pension, his application was delayed until 2014, despite the fact that he had been disabled in 1997.
Analysis
Should an extension of time to file his application requesting leave to appeal be granted to the Applicant?
[12] In Gattellaro,Footnote 4 the Federal Court set out four questions that should be considered and weighed in determining whether to grant an extension of time. The four Gattellaro questions for me to consider are set out above in paragraph 8, and I note that not all four questions need to be resolved in favour of the party seeking an extension. Based on the information that the Applicant’s representative provided, I am granting the extension of time to file the Application for the following reasons:
i. Did the Applicant demonstrate a continuing intention to pursue the appeal?
[13] I find that he did demonstrate a continuing intention to pursue the appeal. The time limit for filing the Application was July 17, 2017, and the Applicant filed an incomplete Application three days late. This is a notably short period of time. The Tribunal notified the Applicant of information missing from his Application only by letter dated July 27, 2017. The Applicant submitted some of the missing information, but his representative has indicated that the Applicant’s ability to respond to requests for information is made difficult by his limited understanding of English. I accept this to be the case.
[14] A second incomplete notice letter was sent on September 19, 2017, and this letter was sent to the Applicant and his representative. A telephone conversation occurred on October 11, 2017, and the Applicant was informed of the remaining missing information. The Application was completed on October 13, 2017.
[15] I find that the Applicant has demonstrated a continuing intention to pursue the appeal.
ii. Is there is a reasonable explanation for the delay?
[16] I have already accepted that the Applicant struggles to communicate in English, and this appears particularly challenging with written communication. The Applicant’s representative assisted the Applicant in completing the Application and filing it with the Tribunal. His representative also provided all submissions on the Applicant’s behalf. It is clear that the Applicant requires his representative’s assistance. The Applicant’s representative is his family doctor. In correspondence to the Tribunal dated November 15, 2017, the representative indicates that he sees the Applicant only every three to seven weeks for injection therapy. During his appointments with the Applicant, his representative reads correspondence sent to the Applicant and interprets what the correspondence says. He then explains to the Applicant what next steps he needs to take in pursuing his appeal.
[17] As a result, where all the Application information is required to be submitted in writing, and because the Applicant relies heavily on his representative for assistance, I find that the ordinary three-to-seven-week delay in receiving assistance from his representative is a reasonable explanation for why the Application was completed beyond the time limits.
iii. Would prejudice result if an extension were granted?
[18] I have already found that the brief delay of three days in filing the initial incomplete Application was very short. The Application was completed within a relatively short period time thereafter. I cannot find any reason that the Respondent would suffer any prejudice should an extension be granted.
iv. Does the appeal disclose an arguable case?
[19] I have left this question to the end, as this question presents the greatest hurdle for the Applicant to overcome in pursuing his appeal. The Applicant’s representative has argued that the Applicant’s limited understanding of the English language and of our culture delayed his pursing a disability pension. The Applicant alleges that he first applied for a pension in May 2007, but that application was refused. The Applicant did not appeal this decision. His second application, filed in October 2014, is the subject of this appeal. His representative asserts that the Applicant was unjustly deprived of pension benefits between 1997, when he became disabled, and 2014, when he filed his successful application. The Applicant’s representative asserts that, in fairness to the Applicant, he should be entitled to disability pension payments commencing in 2007, when he first filed an application. His representative alleges that the Applicant received a phone call following his first application and he was told that his application had been approved. Following that phone call, the Applicant was notified that his application had, in fact, been refused. The General Division found that the Applicant had become disabled in 1997. As a result, his first application should not have been refused, and payments should have commenced then.
[20] In deciding whether to grant leave to appeal in this case, I must determine whether the Applicant’s first application is essentially still a “live” application, which could give rise to payments commencing as early as June 2006. For the following reasons, I am not able to make such a finding.
[21] The first application was filed, according to the Applicant’s representative, in May 2007. This application was refused, and there is no indication that the Applicant requested a reconsideration of the application from the Respondent pursuant to section 81 of the CPP. Section 82 of the CPP refers to appeals to the Social Security Tribunal (Tribunal), and that section allows appeals once a reconsideration decision has been rendered.Footnote 5 I acknowledge that the details regarding the alleged phone call to the Applicant indicating that his application had been accepted are unclear. However, the Applicant’s representative has confirmed that the Applicant was aware, long before he filed his second application in 2014, that his first application had been denied. The General Division notes, at paragraph 2 of the decision, that the first application did not proceed past the Respondent’s initial consideration.
[22] I do not find that the General Division made an erroneous finding of fact with respect to the evidence regarding the first application.
[23] While the Applicant’s representative is requesting that this first application be considered at this point, with respect to determining the commencement of payments, there is no legal foundation to support granting that request. Once the first application had been refused, the Applicant ought to have requested a reconsideration within the time limit allowed for doing so. I can appreciate that having a different cultural background and English as a second language would create some difficulties in navigating the process for appealing decisions to the Tribunal. However, once the time limit for appealing the decision regarding the first application had passed, the application itself became statute-barred from proceeding any further. Hence, there was a necessity for the Applicant to file a second application in 2014.
[24] There is case law that supports my findings. In Sarrazin v. CanadaFootnote 6, the former Pension Appeals Board held that paragraph 42(2)(b) of the CPP “limits the retroactive time to 15 months before the later of (i) the time when a successful application for disability benefits was made […]”
[25] The General Division determined that payments should begin four months after the date on which the Applicant is deemed to have become disabled, and the Applicant could not be deemed disabled any earlier than 15 months before he filed his October 27, 2014, application. I do not find that the General Division erred in determining the earliest date on which the Applicant could begin receiving disability pension payments.
[26] Unfortunately, the Applicant has not identified any ground on which this appeal could proceed with a reasonable chance of success. I appreciate that his representative has asked that this appeal proceed on a compassionate basis. However, granting leave to appeal on sympathetic grounds or in recognition of an Applicant’s perseverance is not within the scope of my authority to grant leave to appeal under subsection 58(1) of the DESD Act.
Conclusion
[27] The request for an extension of time is granted as, despite my finding that the Applicant’s case does not disclose an arguable case, he has demonstrated a continued intention to pursue the appeal; he has provided a reasonable explanation for the delay, and there is no apparent prejudice that would result should an extension be granted. In assessing the four non-conjunctive factors to be considered in assessing extension of time applications, I find that the Applicant is entitled to an extension of time because I am allocating considerable weight to his plausible explanation for the delay in filing, as well as to his demonstrated continued intention to pursue the appeal.
[28] The Application, however, is refused. In determining whether to grant leave to appeal, I have found that, based on the analysis above, the Applicant’s case does not disclose an arguable case. In Larkman, the Court held that the overriding consideration is that the interests of justice are served. However, I do not find that granting the Application on grounds that have no reasonable chance of success serve the interests of justice.