Old Age Security (OAS) and Guaranteed Income Supplement (GIS)

Decision

[1] The Appeal Division of the Social Security Tribunal of Canada, (the Tribunal), refuses leave to appeal.

Introduction

[2] The Applicant applies for leave to appeal from the decision of the General Division of the Tribunal issued October 30, 2015, (the Application). The decision determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan, (CPP).

Grounds of the appeal

[3] The Applicant did not refer to any of the grounds of appeal set out in subsection 58(1) of the Department of Employment and Social Development, (DESD), Act. He stated he was filing the Application because he was required to do so. His reasons are reproduced below:-

“I am filing to appeal because:-
Ontario Works said not to but Ministry of Community and Social Services said I had to. So I am doing so (within the 90 day period).
I am also submitting copies of old Passport plus whatever else might be needed to add to the file.” (AD1)

[4] In light of the deficiencies in the Application, the Tribunal contacted the Applicant asking him to explain in detail why he was seeking leave to appeal the General Division decision. In its letter, dated May 6, 2016, the Tribunal indicated that the reasons for the Application should relate to the grounds of appeal as set out in the DESD Act, and gave examples of how he could relate his application to the grounds of appeal. The Applicant had until June 6, 2016 to respond. He did not do so, and the Appeal Division decision was made in the absence of a response from the Applicant.

Issue

[5] The Appeal Division must decide if the appeal has a reasonable chance of success.

The governing statutory provisions

[6] Subsections 56(1) and 58(3) of the DESD Act govern the granting of leave to appeal. As provided by subsection 56(1) of the DESD Act, leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division. According to subsection 56(1) “an appeal to the Appeal Division may only be brought if leave to appeal is granted.” Subsection 58(3) provides that “the Appeal Division must either grant or refuse leave to appeal.”

[7] In order to obtain leave to appeal, subsection 58(2) of the DESD Act requires an applicant to satisfy the Appeal Division that their appeal would have a reasonable chance of success; otherwise the Appeal Division must refuse leave to appeal. Subsection 58(2) of the DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[8] An applicant satisfies the Appeal Division that his appeal would have a reasonable chance of success by raising an arguable case in his application for leave.^{Footnote 1} In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41 and in Fancy v. Canada (Attorney General), 2010 FCA 63 an arguable case has been equated to a reasonable chance of success.

[9] Subsection 58(1) of the DESD Act sets out the only three grounds of appeal, namely:-

1. The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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.

[10] Tracey v. Canada (Attorney General), 2015 FC 1300 supports the view that in assessing an application for leave to appeal the Appeal Division must first determine whether any of the Applicant’s reasons for appeal fall within any of the stated grounds of appeal

Analysis

[11] The Applicant’s stated reasons for making the Application is that he was instructed to do so. This is not a ground of appeal under subsection 58(1) of the DESD Act, therefore leave to appeal cannot be granted on this basis.

[12] Notwithstanding that the Application does not demonstrate the existence of a ground of appeal that could have a reasonable chance of success the Appeal Division proceeded to examine the General Division decision for error, in particular, an error of law not apparent on the face of the record. The Appeal Division is satisfied that the General Division did not err or in any way breach the provisions of Subsection 58(1)(c) of the DESD Act.

[13] The General Division decision makes reference to the applicable statutory provisions, noting that the Old Age Security Regulations draw a distinction between residence in Canada and presence in Canada, which was the issue before the General Division.

[14] The General Division set out both the documentary evidence and the oral evidence presented at the hearing of the appeal. It also set out the submissions of the parties before analyzing whether the evidence supported a finding that the Applicant had been resident in Canada after the age of 18 and, if so, for what length of time. The General Division found that the Applicant had failed to meet his onus of establishing such residence. It dismissed his appeal.

[15] The Appeal Division finds no error in the General Division’s application of the law to the facts of the Applicant’s case. When the fact that the Applicant’s stated reasons for seeking leave to appeal discloses no relation to a ground of appeal is considered, the Appeal Division is satisfied that the appeal would have no reasonable chance of success.

Conclusion

[16] The Application is refused.