D. A. 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:
- D. A. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- March 26, 2014
- Reference number:
- D. A. v. Minister of Human Resources and Skills Development, 2014 SSTAD 46
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
 On January 18, 2013, a Review Tribunal determined that a Canada Pension Plan disability pension was not payable to the Applicant. The Applicant filed an Application for Leave to Appeal and Notice of Appeal (the “Application”) with the Pension Appeals Board on April 15, 2013. The Application was received by the Appeal Division of the Social Security Tribunal (the “Tribunal”) on or about April 16, 2013, within the time permitted for filing under the Department of Employment and Social Development (DESD) Act. The Applicant filed additional materials with the Tribunal on or about October 17, 2013.
 Does the 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 disagrees with the finding of the Review Tribunal that his disability is not severe and prolonged. He relies on the medical opinion of his family physician who feels that the Applicant’s vertigo has prevented him from engaging in any form of gainful employment since October 2, 2010. In his note dated April 12, 2013, Dr. MacDonald wrote that the Applicant,
“was seen in my office on October 02/10 with vertigo/dizziness that was severe enough to prevent him being able to work. He was seen in follow up in the fall of 2010 and his vertigo continues to preclude him working.”
 The Applicant had not previously obtained a medical report or any records from his family physician and there were no medical opinions of Dr. MacDonald before the Review Tribunal.
 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 in order for leave to be granted: Kerth v. Canada (Minister of Human Resources Development),  FCJ No. 1252 (FC).
 Subsection 58(1) of the DESD Act sets out the grounds of appeal as being limited to 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.
 The Applicant has not suggested that the Review Tribunal failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction. He has not cited any errors of law which the Review Tribunal might have made, nor does he allege that the Review Tribunal based its decision on an erroneous finding of fact. The Applicant simply disagrees with the decision of the Review Tribunal.
 The Review Tribunal was permitted to consider the evidence before it and attach whatever weight it determined appropriate. It was also open to the Review Tribunal to assess the quality of the evidence and determine what facts, if any, to accept or disregard. If the Applicant is requesting that we re-assess the medical evidence and decide in his favour, I am unable to do this, as I am required to determine whether any of his reasons fall within any of the grounds of appeal and whether any of them have a reasonable chance of success. The Application discloses no grounds of appeal for me to consider.
 Although the Applicant has filed an additional medical opinion in support of his leave application and appeal, I am unable to consider any new materials. I note that the Review Tribunal had already considered a number of medical records, including consultation reports, which addressed the issue of the Applicant’s vertigo and dizziness. The Review Tribunal referred to some of the medical records and discussed the issue of the Applicant’s vertigo and dizziness in its Analysis section.
 Even if I were permitted to review any additional medical records, the Applicant has not indicated why the opinion of a family physician is to be preferred or given more weight over the opinions of specialists he saw for his medical condition. Dr. MacDonald has provided only a very cursory opinion. Dr. MacDonald has not provided any past medical history, has not reviewed any testing results, and has not analyzed any of the specialists’ consultation reports. I do not think that a barebones opinion of a family physician would be more authoritative than detailed opinions of specialists.
 The Applicant has not stated why he has filed the additional opinion of Dr. MacDonald, other than to add to the weight of the evidence before the Review Tribunal. He has not indicated how the additional opinion might fall into one of the grounds of appeal.
 If the Applicant has filed the medical report in an effort to rescind or amend the decision of the Review Tribunal, he must comply with the requirements set out in sections 45 and 46 of the Social Security Tribunal Regulations, and he must also file an application for rescission or amendment with the same Division that made the decision (or in this case, the General Division of the Social Security Tribunal). There are additional requirements that an Applicant must meet to succeed in an application for rescinding or amending a decision. Section 66 of the DESD Act also requires an applicant to demonstrate that the new fact is material and that it could not have been discovered at the time of the hearing with the exercise of reasonable diligence. The Appeal Division in this case has no jurisdiction to rescind or amend a decision based on new facts, as it is only the Division which made the decision which is empowered to do so. This is not a re-hearing of the merits of the claim. In short, there are no grounds upon which I can consider the medical opinion of Dr. MacDonald, notwithstanding how supportive the Applicant feels it might be.
 As the Applicant has not identified any grounds of appeal, I am unable to find that the appeal has a reasonable chance of success.
 For the reasons stated above, the Application is refused.
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