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Reasons and decision
Introduction
[1] The Applicant applied for a Canada Pension Plan disability pension in 2012 and claimed that he was disabled as a result of injuries and ongoing conditions from a car accident. The Respondent refused the application initially and after reconsideration. The Applicant appealed the reconsideration decision to the Social Security Tribunal of Canada (Tribunal). This appeal was not filed with the Tribunal within the 90 days permitted by the Social Security Tribunal Regulations, and the General Division refused the Applicant’s request for an extension of time to file the appeal. This refusal was upheld by the Appeal Division. The Applicant applied for judicial review of the Appeal Division decision and the Federal Court granted the application, returning the matter to the Appeal Division.
[2] In February 2017, the Appeal Division extended the time to file the appeal and referred the matter back to the General Division for consideration on the merits of the application for a disability pension. On September 28, 2017, the General Division decided, after a videoconference hearing, that the Applicant did not have a severe disability under the Canada Pension Plan. The Applicant filed this application for leave to appeal (Application), which was incomplete, with the Appeal Division on October 31, 2017. The Application was completed on November 24, 2017.
Analysis
[3] The Department of Employment and Social Development Act (DESD Act) governs the operation of this Tribunal. According to subsections 56(1) and 58(3) of the DESD Act, an appeal to the Appeal Division may be brought only if leave to appeal is granted, and the Appeal Division must either grant or refuse leave to appeal.
[4] The only grounds of appeal available under the DESD Act are set out in subsection 58(1), namely, that the General Division failed to observe a principle of natural justice, made an error of law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it. Subsection 58(2) states that leave to appeal is to be refused if the appeal has no reasonable chance of success.
[5] The Applicant presents four grounds of appeal. I must decide whether any of these grounds of appeal have a reasonable chance of success on appeal.
[6] One ground of appeal is that the General Division erred in that it did not consider the entirety of Dr. Wong’s report (found at GD2-310). The General Division decision summarized this report and stated that Dr. Wong’s opinion was that the Applicant could not return to his prior work, that he would require sedentary work, and that he would benefit from a vocational assessment and transferrable skills assessment. However, the report also considered the Applicant’s pain and mental health, and made recommendations in that regard. Since the decision does not refer to this, it may be that this part of the report was not considered. This ground of appeal therefore suggests that the decision may have been based on an erroneous finding of fact made without consideration for all of the material that was before it. This merits further consideration on appeal.
[7] In Mette v. Canada (Attorney General), 2016 FCA 276, the Federal Court of Appeal indicated that it is not necessary for the Appeal Division to address all the grounds of appeal an applicant raises. Because I have found that one ground of appeal merits further consideration on appeal, I have not considered the remaining grounds of appeal that the Applicant has submitted.
[8] The parties are not, however, limited to the ground of appeal considered in this decision.
Conclusion
[9] The Application is granted.
[10] This decision to grant leave to appeal does not presume the result of the appeal on the merits of the case.
[11] The Social Security Tribunal Regulations provide time for parties to file written submissions after leave to appeal is granted. The parties are invited to include submissions on whether the appeal should be decided on the basis of the written record or what form an oral hearing should take, in addition to submissions addressing any relevant legal issues.