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Reasons and decision
Introduction
[1] The Applicant applied for and was granted a partial Old Age Security Act pension with payments starting in 2004. In 2006 the Respondent concluded an investigation and determined that the Applicant had not met the Canadian residency requirements to receive this pension and suspended it. The Applicant appealed the Respondent’s decision to suspend her Old Age Security pension to the Office of the Commissioner of Review Tribunals. The appeal was transferred to the General Division of the Social Security Tribunal on April 1, 2013 pursuant to the Jobs, Growth and Long-term Prosperity Act. The General Division held a hearing in person and on April 14, 2015 dismissed the appeal.
[2] The Social Security Tribunal Regulations set out what is required to be filed with the Tribunal for an appeal. The Applicant filed documents to request leave to appeal this decision to the Appeal Division of the Tribunal on July 16, 2015. Not all of the necessary documents were filed. The Tribunal advised the Applicant by letter dated August 10, 2015 what further documents and information were required for an application for leave to appeal to be filed with the Tribunal. The Applicant filed the remaining documents with the Tribunal on November 6, 2015. This was beyond the time limit to do so as set out in paragraph 57(1)(b) of the Department of Employment and Social Development Act.
[3] Subsection 57(2) of the Act provides that the time to file an appeal may be extended, but in no case may it be extended beyond one year after the day on which the decision was communicated to the Applicant.
[4] I must decide if the time for filing the application for leave to appeal should be extended, and if so, if leave to appeal should be granted in this case.
Analysis
[5] In Canada (Minister of Human Resources Development) v. Gattellaro, 2005 FC 883, the Federal Court stated that the following criteria are to be considered when deciding whether to grant an extension of time to file an appeal:
- a) The Appellant must demonstrate a continuing intention to pursue the appeal;
- b) The matter discloses an arguable case;
- c) There is a reasonable explanation for the delay; and
- d) There is no prejudice to the other party in allowing the extension.
[6] The weight to be given to each of the Gattellaro 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 (Canada (Attorney General) v. Larkman, 2012 FCA 204).
[7] In addition, the Federal Court of Appeal concluded that the question of whether a party has an arguable case at law is akin to determining whether that party, legally, has a reasonable chance of success - Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41; Fancy v. Canada (Attorney General), 2010 FCA 63.
[8] The Department of Employment and Social Development Act governs the operation of the Tribunal. Section 58 of the Act sets out the only grounds of appeal that can be considered by the Appeal Division. It states:
- 58. (1) The only grounds of appeal are that
- (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 that it made in a perverse or capricious manner or without regard for the material before it.
- 58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
[9] Prior to making this decision, the Tribunal requested that the parties file submissions addressing the relevant criteria regarding the granting of an extension of time to file an appeal, the Applicant’s claim that her rights under the Canadian Charter of Rights and Freedoms were breached, and any legal grounds for her claim. Neither party filed any submissions.
[10] The Applicant’s only statement regarding the late filing of the application for leave to appeal was that she filed documents with the Tribunal on July 16, 2015 which was within the time limit to do so. This is correct. However, the application for leave to appeal was incomplete at that time. An application for leave to appeal is not considered to be filed with the Tribunal until all of the documents and information required are filed. Section 40 of the Social Security Tribunal Regulations sets out specifically what an application for leave to appeal must contain. There is no dispute that the Applicant did not file all of this information until November 2015, which was after the time to do so had expired.
[11] Despite the Tribunal’s request for an explanation for the Applicant’s delay in filing this information none was provided. The Applicant also did not provide any basis upon which I could conclude that she had a continuing intention to appeal this matter. Hence, I find that she did not have a continuing intention to appeal nor a reasonable explanation for her delay in so doing.
[12] Neither party addressed the issue of prejudice if this matter should proceed. I therefore make no finding on it.
[13] With respect to whether the Applicant has presented an arguable case, it is appropriate to consider the numerous arguments she presented in the documents she filed. First, the Applicant complained that her Husband was not permitted to be her Representative at the General Division hearing, and was excluded from the hearing room when she testified. A review of the recording of the hearing revealed that the General Division Member explained to the Applicant and her Husband that he could not be both her Representative at the hearing and a witness. He chose to be a witness. The Member excluded all witnesses from the hearing room until such time as they were to testify. The General Division Member made no error in proceeding in this fashion. A person cannot be both a representative at a hearing and give evidence. It is also common to exclude witnesses until they testify at a hearing so that there is no possibility that their testimony could be tailored to accord with the testimony that they heard while waiting to testify. These arguments do not disclose any ground of appeal under section 58 of the Act.
[14] The Applicant also contended that the General Division based its decision on an erroneous finding of fact when it stated that she had not lived in Canada during the relevant time. The General Division decision set out the evidence that was before it on this issue. It weighed this evidence and reached a logical conclusion. It is for the General Division, as the trier of fact, to receive and weigh evidence. It is not for the Appeal Division, when considering an application for leave to appeal to reweigh the evidence to reach a different conclusion (Simpson v. Canada (Attorney General), 2012 FCA 82). This is not a ground of appeal that may have a reasonable chance of success on appeal.
[15] The Applicant further argued that the General Division failed to observe the principles of natural justice because the decision stated that she had not completed and returned a Life Certificate form to the Respondent during its investigation, when she contended that she had not received this form. The principles of natural justice are concerned with ensuring that parties to a claim have the opportunity to present their case, know and meet the case against them and have a decision made by an impartial arbiter based on the law and the facts. This argument by the Applicant does not point to any breach of these principles. The General Division decision set out the evidence before it regarding the Life Certificate, including the Applicant’s evidence that she had not received the form. This ground of appeal does not have a reasonable chance of success on appeal.
[16] In addition, the Applicant submitted that she disagreed with a number of statements made in the General Division decision and stated that some of the Respondent’s statements were contrary to its position when it granted her the partial pension initially. The Applicant’s mere disagreement with a statement made in the General Division decision does not point to any error of fact or in law, or to any breach of the principles of natural justice. Similarly, the fact that the Respondent changed its decision regarding whether to grant the Applicant a pension after conducting an investigation does not point to a ground of appeal set out in section 58 of the Act. These arguments are not grounds of appeal upon which leave to appeal can be granted.
[17] To be clear, no ground of appeal is disclosed by the Applicant pointing to the Respondent requesting proof of Canadian residence when it was conducting its investigation.
[18] Finally, the Applicant argued that the General Division breached her rights under the Canadian Charter of Rights and Freedoms because it” took as base religion for the decision to dismiss [her] position”. Despite being asked to clarify this ground of appeal the Applicant did not do so. There was nothing in the General Division decision regarding the Applicant’s religion. In Pantic v. Canada (Attorney General), 2011 FC 591, the Federal Court concluded that a ground of appeal cannot be said to have a reasonable chance of success if it is not clear. This argument is not clear. It does not disclose a ground of appeal that has a reasonable chance of success on appeal.
Conclusion
[19] An extension of time to apply for leave to appeal is refused. The Applicant did not provide any basis for a conclusion that she had a continuing intention to pursue this appeal or any explanation for why the application was filed late. I make no finding on the issue of prejudice as there was nothing before me upon which I could do so.
[20] In addition, I placed the more weight on the fact that the Applicant did not present any ground of appeal that falls under section 58 of the Act and that may have a reasonable chance of success on appeal. No purpose is served by granting an extension of time to file an application for leave to appeal when the appeal itself does not have a reasonable chance of success.
[21] For these reasons, it is not in the interests of justice for an extension of time to file the application for leave to appeal to be granted.