Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The application to rescind or amend the Leave to Appeal Decision is refused.

Overview

[2] In 2015, A. J. (Claimant) broke her ankle and underwent surgery to correct this. She has ongoing pain, limitations and arthritis as a result of this injury. In 2017, the Claimant applied for a Canada Pension Plan disability pension and claimed that she was disabled by this injury and its ongoing effects.

[3] The Minister of Employment and Social Development refused the application. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal because it decided that the Claimant did not have a severe disability. The Claimant applied to the Tribunal’s Appeal Division for leave to appeal this decision. The Appeal Division refused leave to appeal because it decided that the appeal did not have a reasonable chance of success under the Department of Employment and Social Development Act (DESD Act).

[4] The Claimant now applies to have the leave to appeal decision rescinded or amended.^{Footnote 1} This application is refused because the Claimant has not presented any new material facts.

Preliminary matter

[5] This application was decided on the basis of the documents filed with the Tribunal for the following reasons:

1. There are no facts in dispute;
2. The credibility of either party is not an issue;
3. The issue to be decided is straightforward;
4. The parties have addressed this issue, and have had time to file written submissions in response to the other’s submissions;
5. The Social Security Tribunal Regulations require that applications be concluded as quickly and informally as the circumstances and considerations of fairness and natural justice permit.^{Footnote 2}

Analysis

[6] The Tribunal’s decisions are meant to be final. A narrow exception to this is permitted by an application to rescind or amend a decision based on new material facts.^{Footnote 3} This allows the Tribunal to rescind or amend a decision given by it if a new material fact is presented that could not have been discovered at the time of the hearing with the exercise of reasonable diligence.^{Footnote 4}

[7] There is a two-part test for evidence to be a new material fact:

1. It must establish a fact (usually a medical condition in the context of the Canada Pension Plan) that existed at the time of the original hearing but was not discoverable before the original hearing by the exercise of due diligence (the “discoverability test”).
2. The evidence must also reasonably be expected to affect the result of the prior hearing (the “materiality test”).^{Footnote 5}

[8] In this case, a new material fact would be a fact that existed at the time of the leave to appeal decision but that could not have been discovered at that time by the claimant with the exercise of reasonable diligence. It must also be a fact that could reasonably be expected to demonstrate that the appeal has a reasonable chance of success under the DESD Act.^{Footnote 6}

[9] The Claimant presents a letter from Dr. Haider dated November 18, 2019, as a new material fact. This letter confirms that Dr. Haider treated the Claimant’s broken ankle after she returned to Canada in 2015, summarizes his consultations with the Claimant, treatment recommendations, states that she is not suitable for any physical job, and is not capable of doing her job at that time.^{Footnote 7}

[10] This document does not meet the legal test for new material facts. First, it does not establish any fact that existed at the time of the leave to appeal decision but was not discoverable. The Claimant’s broken ankle and ongoing condition existed at the time of the decision. It was discovered before this because it was the basis for the Claimant’s disability application.

[11] In addition, the November 2019 letter summarizes the information that was already before the Tribunal. The Leave to Appeal decision specifically refers to some of this information. It states

The General Division considered the information from Dr. Haider (a specialist), who prescribed Naproxen and Tylenol and recommended [the Claimant] elevate her foot. In September 2015, Dr. Haider suggested that the Claimant should work a four-hour day for three more weeks. The General Division also considered the note that Dr. Haider wrote in January 2018 stating that the Claimant could not return to work due to osteoarthritis.^{Footnote 8}

[12] Second, this document would not be expected to change the decision on leave to appeal. The Appeal Division considered the Claimant’s argument that the General Division did not consider all of the evidence, and that a proper consideration of the evidence would lead to the conclusion that she has a severe and prolonged disability. The Appeal Division concluded that the General Division had considered all of the evidence. Since the November 2019 letter summarizes some of this evidence, and this evidence was already considered, it would not affect the outcome of the appeal.

[13] Therefore, this document is not a new material fact.

Conclusion

[14] The application to rescind or amend the leave to appeal decision is refused.