Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The requests for an extension of time and leave to appeal are refused.

Introduction

[2] The Claimant is a former factory worker who was diagnosed with epilepsy in her twenties. She underwent carpal tunnel surgery in 2007 and was laid off from her job later that year. She has not worked since.

[3] In October 2018, the Claimant applied for a Canada Pension Plan (CPP) disability pension. The Minister refused the application because it found that she did not have a severe and prolonged disability as of the minimum qualifying period (MQP), which ended on December 31, 2009.

[4] The Claimant appealed this refusal to the General Division of the Social Security Tribunal. The General Division held a hearing by teleconference and, in a decision dated May 28, 2019, dismissed the appeal. It found that the Claimant was, more likely than not, able to perform substantially gainful work during the MQP.

[5] On November 6, 2020, the Claimant applied for leave to appeal from the Appeal Division. She alleged that the General Division had committed factual errors in coming to its decision. She also said that her application was late because she was under the impression that Alberta’s Assured Income for the Severely Handicapped (AISH) program would be pursuing an appeal on her behalf.

Issues

[6] Under section 58(1) of the Department of Employment and Social Development Act, (DESDA), there are three grounds of appeal to the Appeal Division. A claimant must show that the General Division (i) did not follow procedural fairness or made an error of jurisdiction; (ii) made an error of law; or (iii) made an important error of fact.

[7] An appeal can proceed only if the Appeal Division first grants leave to appeal.^{Footnote 1} At this stage, the Appeal Division must be satisfied that the appeal has a reasonable chance of success.^{Footnote 2} This is a fairly easy test to meet, and it means that a claimant must present at least one arguable case.^{Footnote 3}

[8] I have to decide the following questions:

1. Issue 1: Should the Claimant be granted an extension of time in which to apply for leave to appeal?
2. Issue 2: If so, does the Claimant’s appeal have a reasonable chance of success?

Analysis

Issue 1: Should the Claimant be granted an extension of time in which to apply for leave to appeal?

[9] The Claimant did not specify her objections to the General Division’s decision but it is clear that she believes the General Division decided her case wrongly. However, I have no choice but to find that the Claimant is barred from pursuing her application for leave.

[10] Under section 57(1)(b) of the DESDA, an appeal must be brought to the Appeal Division within 90 days after the day on which the decision was communicated to the applicant. Under section 57(2), the Appeal Division may allow further time to bring an appeal, but in no case may an appeal be brought more than one year after the day on which the decision is communicated to the applicant.

[11] In this case, the General Division’s decision was issued and mailed to the Claimant on May 29, 2020. The Appeal Division did not receive her application for leave to appeal until November 6, 2020—17 months after the General Division’s decision was communicated to her. The Claimant says that her application for leave to appeal was late because she was led to believe that AISH would be appealing the General Division’s refusal on her behalf.

[12] Unfortunately, this explanation does not help the Claimant. The law is strict and unambiguous for appeals that are submitted after a year. While extenuating circumstances may be considered for appeals that come after 90 days but within a year, the wording of section 57(2) of the DESDA all but eliminates scope for a decision‑maker to exercise discretion once 365 days have elapsed. The Claimant’s reasons for filing her appeal late are therefore rendered irrelevant, as are other factors, such as the complexity of the appeal process.

[13] I regret having to deny the Claimant an avenue of appeal, but I am bound to follow the letter of the law. The Claimant’s submissions amount to a plea that I simply waive the filing deadline and examine her submissions on their merits, but I can only exercise such authority as is granted by the Appeal Division’s enabling statute. Support for this position may be found in Canada v. Esler,^{Footnote 4} among other cases, which have held that an administrative tribunal is not a court but a statutory decision-maker and therefore is not empowered to provide any form of equitable relief.

Issue 2: Has the Claimant raised grounds of appeal that would have a reasonable chance of success?

[14] As the Claimant’s application for leave to appeal comes more than one year after the General Division’s decision was communicated to her, I do not need to consider whether her submissions would have a reasonable chance of success on appeal.

Conclusion

[15] The application is refused.