Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The Application is refused.

Overview

[2] M. S. (Claimant) obtained a degree in social work and worked in this field for many years. She stopped working in July 2015 due to mental illness. The Claimant applied for a Canada Pension Plan disability pension in December 2015 and claimed that she was disabled by a number of conditions, including mental illness, fibromyalgia, and irritable bowel syndrome. The Minister of Employment and Social Development refused the application.

[3] The Claimant appealed the Minister’s decision to the Tribunal. The Tribunal’s General Division heard the appeal and decided that the Claimant was disabled in April 2018. The Claimant filed an application for leave to appeal the decision regarding when she became disabled after the time permitted. The time to file the application is not extended and leave to appeal is refused because the appeal does not have a reasonable chance of success.

Issues

[4] Did the Claimant file the application for leave to appeal late?

[5] If so, should the time to file the application be extended?

[6] Does the appeal have a reasonable chance of success because the General Division made an error under the Department of Employment and Social Development Act (DESD Act)?

Analysis

Issue 1: Is the appeal late?

[7] The DESD Act governs the Tribunal’s operation. It states that an appeal to the Appeal Division must be brought within 90 days of the General Division decision being communicated to the claimant.^{Footnote 1} This time can be extended, but in no case can an appeal be brought more than one year after the decision was communicated to a claimant.^{Footnote 2}

[8] The General Division decision is dated September 18, 2018. The Claimant’s request for leave to appeal is dated December 12, 2018, which is within 90 days of the date of the decision. However, the Claimant sent the request to Service Canada instead of the Tribunal. On February 19, 2019, Service Canada returned the request for leave to appeal documents to the Claimant, telling her that they had to be filed with the Tribunal. The Claimant did so on March 1, 2019.

[9] March 1, 2019, is more than 90 days after the decision was communicated to the Claimant, so the application for leave to appeal is late.

Issue 2: Should time to appeal be extended?

[10] Time to file the application can be extended. The Federal Court teaches that I must consider the following when deciding whether to extend the time to file an application for leave to appeal:

1. did the claimant have a continuing intention to pursue the application?
2. is there is a reasonable explanation for the delay?
3. is there is any prejudice to the other party in allowing the extension? and
4. does the matter disclose an arguable case?^{Footnote 3}

The weight to be given to each of these 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.^{Footnote 4}

[11] I am satisfied that the Claimant had a continuing intention to pursue the application and a reasonable explanation for her delay in doing so. She prepared and sent the leave to appeal documents where she thought they needed to go within the 90 days. Immediately upon being informed that they had to be filed with the Tribunal and not Service Canada she did so.

[12] It is hard to imagine that the Minister would be prejudiced by the short delay in this matter.

[13] Whether the Claimant has presented an arguable case on appeal is the same, legally, as whether the appeal has a reasonable chance of success on appeal. This is the test to be met to be granted leave to appeal, so is considered below in that context.

Issue 3: Does the appeal have a reasonable chance of success?

[14] The DESD Act sets out only three grounds of appeal that the Appeal Division can consider. They are that the General Division failed to observe a principle of natural justice or made a jurisdictional error, made an error in 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.^{Footnote 5} In addition, leave to appeal is to be refused if the appeal has no reasonable chance of success.^{Footnote 6} Therefore, to be granted leave to appeal the Claimant must present a ground of appeal that falls under the DESD Act and upon which the appeal has a reasonable chance of success.

[15] In the application to appeal to the Appeal Division the Claimant wrote that she would like payment of the disability pension to begin in 2014 when she was first disabled. The Tribunal wrote to the Claimant and asked her to provide grounds of appeal under the DESD Act. The Claimant responded with an explanation of her struggles with mental illness. This explanation does not point to any error made by the General Division. Leave to appeal cannot be granted on the basis of her clarification of the evidence.

[16] I have read the General Division decision and the written record. The General Division did not overlook or misconstrue any important information. There is no indication that it made an error in law or failed to observe a principle of natural justice.

[17] Therefore, leave to appeal cannot be granted because the Claimant has not presented a ground of appeal that falls under the DESD Act and upon which the appeal has a reasonable chance of success.

Conclusion

[18] The Application is refused. While the Claimant had a continuing intention to appeal and a reasonable explanation for the delay, I place greater weight on the fact that the appeal does not have a reasonable chance of success. No point is served by extending time for an appeal when there is no reasonable chance of success on the merits of the appeal.