J. S. v. Minister of Human Resources and Skills Development

Institution:
Social Security Tribunal decision – Appeal Division – Leave to Appeal decision
Member:
Janet Lew
Hearing date:
N/A
Hearing type:
N/A
Between:
J. S. and Minister of Human Resources and Skills Development
Decision:
Application for leave to appeal is refused
Decision date:
June 25, 2014
Reference number:
AD-13-784
Citation:
J. S. v. Minister of Human Resources and Skills Development, 2014 SSTAD 165

Decision

[1] The Member of the Appeal Division of the Social Security Tribunal (the “Tribunal”) refuses leave to appeal.

Background

[2] 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, 2008. The Applicant’s representative filed an application requesting leave to appeal (the “Application”) with the Pension Appeals Board on May 25, 2013, although there is no record of this. After April 1, 2013, the Applicant ought to have filed the Application with the Tribunal. The Applicant’s representative submitted an enquiry with the Tribunal on October 10, 2013, regarding the status of the leave application. The Application is considered to have been filed within the time permitted under the Department of Employment and Social Development (DESD) Act.

Issue

[3] Does this appeal have a reasonable chance of success?

The law

[4] 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”.

[5] 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”.

Applicant’s submissions

[6] The Applicant submits that he suffers from a severe and prolonged disability as defined by paragraph 42(2)(a) of the Canada Pension Plan. His representative advises that he continues to compile medical documentation in support of his client’s claim.

Respondent’s submissions

[7] The Respondent has not filed any written submissions.

Analysis

[8] 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), [1999] FCJ No. 1252 (FC).

[9] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:

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

[10] For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.

[11] 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.

[12] 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.

[13] 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 satisfied that the appeal does not have a reasonable chance of success.

[14] If the Applicant is requesting that we consider any forthcoming additional records or factors, or re-assess the claim and re-weigh the evidence in his favour, I am unable to do this, given the very narrow constraints of subsection 58(1) of the DESD Act. The leave application is not an opportunity to re-hear the claim to determine whether the Applicant is disabled as defined by the Canada Pension Plan.

Conclusion

[15] The Application is refused.

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