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Decision and reasons
Introduction
[1] On April 25, 2016, the General Division of the Social Security Tribunal of Canada determined that a disability pension under the Canada Pension Plan was not payable. The Applicant filed an application for leave to appeal with the Tribunal’s Appeal Division, which was received on June 7, 2016.
[2] The Appeal Division must decide whether the appeal has a reasonable chance of success.
The law
[3] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), “An appeal to the Appeal Division may only be brought if leave to appeal is granted” and “The Appeal Division must either grant or refuse leave to appeal.”
[4] Subsection 58(2) of the DESDA provides that “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”
[5] According to subsection 58(1) of the DESDA, the only grounds of appeal are 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 made in a perverse or capricious manner or without regard for the material before it.
[6] The process of assessing whether to grant leave to appeal is a preliminary one. The review requires an analysis of the information to determine whether there is an argument that would have a reasonable chance of success on appeal. This is a lower threshold to meet than the one that must be met on the hearing of the appeal on the merits. The Applicant does not have to prove the case at the leave to appeal stage: Kerth v. Canada (Minister of Human Resources Development), 1999 CanLII 8630 (FC). The Federal Court of Appeal, in Fancy v. Canada (Attorney General), 2010 FCA 63, determined that an arguable case at law is akin to determining whether, legally, an appeal has a reasonable chance of success.
Submissions
[7] The Applicant raised multiple grounds of appeal; however, this leave decision will focus on the following: The Applicant submits that the General Division erred in law in making its decision by not considering her late filed medical reports.
Analysis
[8] It should be noted that the Respondent (Minister) did not attend the hearing.
[9] The Applicant’s representative filed medical reports on April 18, 2016 (GD22), one day prior to the hearing date.
[10] In the notice of hearing, dated November 3, 2015, the filing periods, response periods and procedure for documents filed late, were outlined:
FILING PERIOD
If parties have additional documents or submissions to file, they must be received by the Tribunal no later than December 9, 2015. A copy of any new documents received by the Tribunal will be provided to the other parties and they will be given an opportunity to respond.
RESPONSE PERIOD
The Filing Period is followed by a Response Period. If a party wishes to respond to any documents filed during the Filing Period, the response must be received by the Tribunal no later than January 8, 2016.
DOCUMENTS FILED LATE
Documents filed after the time periods set out above will be provided to the other parties but, it will be up to the Tribunal Member to decide whether they will be considered. Parties will be informed whether documents filed late will be excluded or considered by the Tribunal Member in making the decision, either in writing or at the hearing.
[11] At the hearing, the General Division member specifically referenced the late filing. I listened to the opening remarks of the recording of the hearing and the General Division member and the Applicant’s representative had a discussion about GD22. The following is a partial transcript of that discussion:
GD Member: “…just as a preliminary those files that you sent me yesterday I’m not sure that I’m going to consider those or not. I’ll have to make a decision on that because of the late submission of those files.”
Applicant’s Rep: “yes, that psych (inaudible) there’s already that ...a different report was done already…it was just reviewing the file and it came to my attention…I intended always intended to send it. I don’t know why it didn’t get sent. But the material doesn’t…”
GD Member: “I don’t want to harm your client by not looking at that material but again the Department hasn’t had a chance to look at it either so. So I may or may not exclude that, just so you know.”
Applicant’s Rep: “OK” GD Member: “OK, Good”.
[12] On April 22, 2016, the Tribunal received post-hearing submissions from the Minister. In those submissions, the Minister specifically addresses the submissions filed on April 18, 2016, by the Applicant in GD22.
[13] On April 25, 2016, the General Division finalized its decision and indicated at paragraph 55 that the reports contained in GD22 were not admitted into evidence:
The Tribunal did not accept nor address the medical reports submitted by the Appellant’s representative on April 18, 2016 as they were submitted beyond the deadline for filing documents. In fact, they were received only one day before the hearing. Similarly, the Tribunal did not accept the post hearing submissions of the Minister submitted on April 22. 2016 as they were in response to the above noted late filings of the representative.
[14] By responding to the late submissions, the Minister did not object to the admission of the reports for consideration by the General Division member. From the audio recording it appears that the General Division member’s only trepidation in consulting those reports was that the Minister would not have had an opportunity to provide submissions with respect to their content. However, in the submissions of April 22, 2016, the Minister provided its arguments with respect to the reports found in GD22.
[15] This raises the question as to whether there are any circumstances that might warrant a consideration of documents that have been filed late.
[16] The Applicant’s submissions raise an arguable case, which may be successful on appeal. The Minister did not object to the consideration of the reports and was able to provide submissions prior to the issuance of the General Division decision. The General Division’s only issue with the late filing was that there was concern that the Minister did not have the opportunity to “look at them.” The Minister did look at them and provided a response. There was no objection from the Minister that they should not be considered. There is an arguable case that the exclusion of this evidence is an error in law. As such, I am satisfied that the appeal has a reasonable chance of success on this ground.
[17] The Applicant’s representative has raised other grounds of appeal as well, but as the Federal Court of Appeal in Mette v. Canada (Attorney General), 2016 FCA 276, indicated, it is unnecessary for the Appeal Division to address all the grounds of appeal that an applicant has raised. The Federal Court of Appeal stated that subsection 58(2) of the DESDA “does not require that individual grounds of appeal be dismissed. Indeed, individual grounds may be so inter- related that it is impracticable to parse the grounds so that an arguable ground of appeal may suffice to justify granting leave.”
[18] I find it unnecessary to address the other grounds raised in the submissions.
Conclusion
[19] The application for leave to appeal is granted.
[20] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.