Canada Pension Plan (CPP) disability

Decision

[1] I am refusing the Claimant’s requests for an extension of time and leave to appeal. I see no basis for this appeal to go forward.

Overview

[2] The Claimant is a former forklift driver who lost her job in September 2012. The following year, she worked on an assembly line for four months. She hasn’t been employed since.

[3] On August 22, 2014, the Claimant applied for a Canada Pension Plan (CPP) disability pension. She claimed that she could no longer work because of shortness of breath caused by a blocked artery in her leg, as well as other medical conditions such as irritable bowel syndrome (IBS), high blood pressure, and anxiety and depression.

[4] The Minister refused the application because, in its view, the Claimant had not shown that she had a severe and prolonged disability during her minimum qualifying period (MQP), which ended on December 31, 2015.^{Footnote 1}

[5] The Claimant appealed the Minister’s refusal to the Social Security Tribunal. The Tribunal’s General Division held a hearing by teleconference and, in a decision dated February 7, 2017, dismissed the appeal because it hadn’t found enough medical evidence to show that the Claimant was incapable regularly of substantially gainful employment as of the MQP. The Tribunal’s Appeal Division later refused the Claimant leave (or permission) to appeal the General Division’s decision.

[6] On March 5, 2019, the Claimant applied for CPP disability benefits for a second time. She again cited leg pain and breathlessness as the reasons she could no longer work, as well as IBS and depression. Her MQP continued to be the period ending December 31, 2015.

[7] The General Division held another hearing, this one by videoconference, and dismissed the appeal in a decision dated June 4, 2021. The General Division found that the Claimant’s appeal raised issues that it had already dealt with at the first hearing. It concluded that it could not consider the Claimant’s second appeal because of a legal doctrine called res judicata.

[8] The Claimant has returned to the Appeal Division to request permission to appeal the General Division’s recent decision. She alleges that the General Division made the following errors in coming to its decision:

• The General Division said that it was her personal choice to stop working, but she did so on direct orders from her doctor; and
• The General Division failed to appreciate that her specialist did not forward her medical records as requested.

[9] I have reviewed the General Division’s decision against the underlying record. I have concluded that the Claimant has not advanced any grounds that would have a reasonable chance of success on appeal.

Issues

[10] I had to decide the following related questions:

• Was the Claimant’s application for leave to appeal filed late? If so, should I grant the Claimant an extension of time?
• Does the Claimant’s appeal have a reasonable chance of success?

Analysis

The Claimant’s request for leave to appeal was late

[11] An application for leave to appeal must be made to the Appeal Division within 90 days after the day on which the decision was communicated to the applicant.^{Footnote 2} The Appeal Division may allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the applicant.

[12] In this case, the General Division issued its decision on June 4, 2021. The following day, the Tribunal mailed the decision to the Claimant at the residential address that she had provided to the Tribunal. The Appeal Division did not receive the Claimant’s application for leave to appeal until September 22, 2021—approximately two weeks after the filing deadline. Even allowing for the 10-day delivery period deemed under the Social Security Tribunal Regulations, the Claimant’s application for leave to appeal was submitted several days late.

[13] In a case called Gattellaro,^{Footnote 3} the Federal Court set out four factors to consider when deciding whether to allow further time to appeal:

• whether there is a reasonable explanation for the delay;
• whether the claimant demonstrates a continuing intention to pursue the appeal;
• whether allowing the extension would cause prejudice to other parties; and
• whether the matter discloses an arguable case.

[14] The weight to be given to each of the Gattellaro factors may differ from case to case, and other factors may be relevant. However, the overriding consideration is that the interests of justice be served.^{Footnote 4}

The Claimant had a reasonable explanation for the delay

[15] The Claimant says that she had difficulty in obtaining assistance to complete her application for leave to appeal. She says that her member of Parliament’s constituency staff were distracted by the then-impending federal election. In view of all circumstances, I find this explanation reasonable.

The Claimant had a continuing intention to pursue the appeal

[16] The Claimant submitted her application only a few days after the deadline. Since the delay was minor, I am willing to assume that the Claimant never stopped intending to pursue her appeal.

The other party would not be prejudiced by an extension

[17] I find it unlikely that permitting the Claimant to proceed with his appeal at this late date would prejudice the Minister’s interests, given the relatively short period of time that has elapsed since the expiry of the deadline. In particular, don’t believe that the Minister’s ability to respond, given its resources, would be unduly affected by allowing the extension of time to appeal.

The Claimant does not have an arguable case

[18] Claimants seeking an extension of time must show that they have at least an arguable case on appeal. As it happens, this is also the test for leave to appeal. The Federal Court of Appeal has held that an arguable case is akin to one with a reasonable chance of success.^{Footnote 5}

[19] For the reasons that follow, I find that the Claimant’s appeal would not have a reasonable chance of success.

The Claimant’s submissions do not raise an arguable case on appeal

[20] There are four grounds of appeal to the Appeal Division. A claimant must show that the General Division

• proceeded in a way that was unfair;
• acted beyond its powers or refused to exercise those powers;
• interpreted the law incorrectly; or
• based its decision on an important error of fact.^{Footnote 6}

[21] I don’t see how the Claimant has an arguable case on appeal. I have come to this conclusion for the following reasons:

The Claimant can’t repeat her arguments at the Appeal Division

[22] The Claimant’s reasons for requesting permission to appeal at the Appeal Division are similar to her reasons for appealing to the General Division earlier this year.^{Footnote 7} At both levels, she has claimed that she stopped working on doctor’s orders and that her medical file lacked key reports through no fault of her own.

[23] Unfortunately, I can’t consider arguments and evidence that have already been presented to the General Division. As a member of the Appeal Division, I have limited authority. I am only permitted to consider whether the General Division made certain types of error in coming to its decision. For that reason, an appeal to the Appeal Division is not a place in which to present material that was submitted, or could have been submitted, at the General Division. In short, an Appeal Division hearing is not meant to be a “redo” of the General Division hearing.

The General Division can’t consider matters that it has already decided

[24] As the General Division correctly noted, a legal doctrine called res judicata prevents decision-makers from reconsidering matters that they have already decided. A case called Danyluk^{Footnote 8} requires decision-makers to consider three criteria in determining whether res judicata applies:

• Did the prior proceeding involve the same parties as the current proceeding?
• Did it address the same issues?
• Did it lead to a final decision?

[25] In Danyluk, the Supreme Court of Canada held that there are sound public policy reasons for res judicata:

An issue, once decided, should not generally be re-litigated to the benefit of the losing party and the harassment of the winner. A person should only be vexed once in the same cause. Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided.^{Footnote 9}

The Claimant’s second application overlaps with her first

[26] The General Division decided that res judicata barred it from considering the Claimant’s appeal for the following reasons:

• The parties (the Claimant and the Minister) in the appeal decided on February 7, 2017 were the same as the parties in the second appeal;
• Both appeals concerned the Claimant’s claim that she became disabled before December 31, 2015 because of a blocked artery, shortness of breath, IBS, and anxiety and depression; and
• The General Division’s decision of February 7, 2017 was final and the Claimant’s file was closed.

[27] The General Division looked at the Claimant’s medical file and found that it largely contained the same documents that supported her first appeal. The Claimant did provide additional medical reports for her second appeal, but the General Division determined that they either

• referred to period before December 31, 2015 but contained no new information; or
• referred to the period after December 31, 2015 and contained irrelevant information.

[28] The General Division concluded that in neither instance did the Claimant’s new information raise any issues that had not already been adjudicated. I see nothing to suggest that the General Division made an error of law or fact in arriving at this conclusion.

The General Division appropriately exercised its discretion in deciding not to revisit the Claimant’s case

[29] Even if the three criteria referred to above are met, Danyluk permits decision-makers somediscretion in whether to apply res judicata. However, that discretion must be exercised with the following factors in mind:

• the wording of the legislation establishing the administrative power;
• the purpose of that legislation;
• the availability of an appeal;
• the administrative safeguards available to the parties;
• the expertise of the administrative decision-maker;
• the circumstances giving rise to the prior administrative proceeding; and
• the potential for injustice.

[30] The General Division considered these factors but could find no reason to waive res judicata and revisit its prior decision. In particular, the General Division found that the Claimant had been previously given “every opportunity to provide any documentation she felt was relevant up to the date of her MQP and after.”^{Footnote 10} Above all, the General Division saw no potential for injustice if it declined to consider the Claimant’s second appeal.

[31] In my view, the General Division exercised its discretion while making a good-faith attempt to take the Danyluk factors into account. I saw nothing to indicate that, in doing so, it exhibited bias or acted for an improper purpose. Nor did I see any sign that it ignored a relevant factor or considered an irrelevant factor.^{Footnote 11}

Conclusion

[32] I have decided that this is not an appropriate case to allow an extension of time to appeal beyond the 90-day limitation. I found that the Claimant had a reasonable explanation for the delay in filing her request for leave to appeal, and I accepted that she had had a continuing intention to pursue an appeal. I also thought it unlikely that either the Minister’s interests would be prejudiced by extending time. However, I could find no arguable case on appeal, and it was this last factor that was decisive. I see no point in advancing this application to a full appeal that is doomed to fail.

[33] In consideration of the Gattellaro factors and in the interests of justice, I am refusing the Claimant an extension of time to appeal.