R. D. v. Minister of Human Resources and Skills Development
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- Social Security Tribunal decision – Appeal Division – Leave to Appeal decision
- Janet Lew
- Hearing date:
- Hearing type:
- R. D. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- June 25, 2014
- Reference number:
- R. D. v. Minister of Human Resources and Skills Development, 2014 SSTAD 163
 The Member of the Appeal Division of the Social Security Tribunal refuses leave to appeal.
 The Applicant seeks leave to appeal the decision of the Review Tribunal issued on March 13, 2013. The Review Tribunal had determined that a Canada Pension Plan disability pension was not payable to the Applicant, as it found that his disability was not “severe” at the time of his minimum qualifying period of December 31, 2012. The Applicant filed an application requesting leave to appeal (the “Application”) with the Pension Appeals Board on May 22, 2013. After April 1, 2013, the Applicant ought to have filed the Application with the Tribunal. Appeals filed with the Pension Appeals Board are considered to have been filed with the Appeal Division of the Social Security Tribunal. The Application is considered to have been filed within the time permitted under the Department of Employment and Social Development (DESD) Act.
 Does this appeal have a reasonable chance of success?
 According to subsections 56(1) and 58(3) of the DESD Act, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” and “the Appeal Division must either grant or 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”.
 The Applicant submits that he experiences irregular bowel movements and numbness. He submits that his symptoms are uncontrollable, irregular and severe, to the point that they interfere with his daily activities. He submits that his symptoms are prolonged, in that he has an “unknown future”. He further submits that he is incapable regularly of pursuing any substantially gainful employment, as no employer will accommodate someone who is as unreliable as he is. He notes also that the demands of his profession are ever-changing, leaving him without any opportunities.
 The Applicant further submits that as he has qualified for long-term disability benefits, that he also ought to qualify for Canada Pension Plan disability benefits.
 The Respondent has not filed any written submissions.
 Although a leave to appeal application is a first, and lower, hurdle to meet than the one that must be met on the hearing of the appeal on the merits, some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada (Minister of Human Resources Development),  FCJ No. 1252 (FC).
 Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:
- (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.
 For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.
 I am required to determine whether any of the Applicant’s reasons for appeal fall within any of the grounds of appeal and whether any of them have a reasonable chance of success, before leave can be granted.
 The Applicant has not identified any failure by the Review Tribunal to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction. He has not identified any errors in law which the Review Tribunal may have committed in making its decision. The Applicant has not identified any erroneous findings of fact which the Review Tribunal may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision. The Applicant has not cited any of the enumerated grounds of appeal.
 While an applicant is not required to prove the grounds of appeal for the purposes of a leave application, at the very least, an applicant ought to set out some bases for his submissions which fall into the enumerated grounds of appeal, without having the Appeal Division speculate as to what they might be. The Application is deficient in this regard and I am not satisfied that the appeal has a reasonable chance of success.
 Finally, while the Applicant’s disability insurer may have determined that the Applicant is disabled and therefore qualifies for long-term disability benefits, this is irrelevant to the determination of whether the Applicant qualifies for a Canada Pension Plan disability pension. The Review Tribunal is not bound by any determinations made by a long-term disability insurer, or for that matter, any other body. The Canada Pension Plan strictly defines disability and the Applicant was still required to satisfy the Review Tribunal that he is disabled as defined by the Canada Pension Plan. The fact that the Applicant may be receiving long-term disability benefits is not a basis for appeal under the Canada Pension Plan.
 The Application is refused.
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