D. W. 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:
D. W. and Minister of Human Resources and Skills Development
Decision:
Application for leave to appeal is refused
Decision date:
June 25, 2014
Reference number:
AD-14-137
Citation:
D. W. v. Minister of Human Resources and Skills Development, 2014 SSTAD 166

Decision

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

Background

[2] The Applicant seeks leave to appeal the decision of the General Division of the Social Security Tribunal (the “General Division”), issued on September 4, 2013. The General Division had denied his request for an extension of time to appeal the reconsideration decision of the Minister of Human Resources and Skills Development.

[3] The Applicant received the decision of the General Division on October 16, 2013. He filed an Application Requesting Leave to Appeal to the Appeal Division on November 1, 2013, within the time permitted under the Department of Employment and Social Development (DESD) Act.

Issue

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

The law

[5] 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”.

[6] 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

[7] The Applicant disagrees with the decision of the General Division. He explains that he had always intended to pursue Canada Pension Plan disability benefits and mistakenly believed that he had appealed the decision, within the time permitted under the Canada Pension Plan.

[8] The Applicant has been diagnosed with chronic lymphocytic leukemia. He submits that his disability is severe, as he suffers from a major depression for which he is regularly attending psychotherapy and taking various medications. He submits that his disability is severe enough that it prevents him from working. He also submits that his disability is prolonged, as he has a terminal prognosis.

[9] The Applicant attached a copy of the following:

  1. (a) Physician psychotherapist’s Medical Reports dated May 8, 2012, February 26, 2013 and October 23, 2013;
  2. (b) Questionnaire for Disability Benefits Canada Pension Plan, dated October 1, 2013;
  3. (c) Psychiatric assessment report dated November 8, 2012, of Dr. Alexander Luczak, psychiatrist; and
  4. (d) Psychologist’s report dated July 18, 2012 of Pat Warburton.

[10] The Applicant did not provide any additional submissions or any information as to how the General Division might have done any of the following:

  1. (a) failed to observe a principle of natural justice, or otherwise acted beyond or refused to exercise its jurisdiction;
  2. (b) committed any errors in law; or
  3. (c) based its decision on an erroneous finding of fact in a perverse or capricious manner or without regard for the material before it.

Respondent’s submissions

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

Analysis

[12] 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).

[13] Subsection 58(1) of the DESD Act sets out the grounds of appeal as being limited to 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.

[14] 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. Here, the Applicant does not allege that the General Division failed to observe a principle of natural justice in making its decision, or that it committed any errors in law or based its decision on an erroneous finding of fact in a perverse or capricious manner or without regard for the material before it.

[15] While an applicant is not required to prove the grounds of appeal for the purposes of a leave application, he ought to, at the very least, set out some bases for the leave application, without having the Appeal Division speculate as to whether there were any errors or failings committed by the General Division.

[16] Subsection 58(1) of the DESD Act is specific as to what grounds I am required to consider in assessing a leave application. The Act does not afford any discretion to consider other factors, nor does it permit me to re-assess and re-weigh the evidence. As such, I am unable to find that the appeal has a reasonable chance of success.

Conclusion

[17] As the applicant’s reasons for appeal disclose no grounds of appeal for me to consider, I refuse the Application for leave.

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