A. M. v. Minister of Human Resources and Skills Development
- Social Security Tribunal Decision - Appeal Division – Leave to Appeal decision
- Valerie Hazlett Parker
- Hearing date:
- Hearing type:
- A.M. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- April 2, 2014
- Reference number:
- A. M. v. Minister of Human Resources and Skills Development, 2014 SSTAD 57
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
 On February 12, 2013 a Review Tribunal dismissed the Applicant’s appeal of the Respondent’s decision to terminate disability pension payments. The Applicant originally filed an application for leave to appeal (the “Application”) with the Appeal Division of the Social Security Tribunal (SST) on May 8, 2013.
 The Tribunal must decide whether the appeal has a reasonable chance of success.
 According to subsections 56(1) and 58(3) of the Department of Employment and Social Development (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”.
 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 Development),  FCJ No. 1252 (FC).
 Furthermore, the Federal Court of Appeal has found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. Canada (Attorney General), 2010 FCA 63.
 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.
 The decision of the Review Tribunal is considered a decision of the General Division.
 The Applicant disputed some of the findings of fact made by the Review Tribunal but did not allege that the Review Tribunal made any erroneous findings of fact. These findings included that the Applicant did not co-operate with the Respondent by not answering letters and telephone calls, that he had numerous absences from work after returning there, and that he did not dispute the quantum of overpayment alleged by the Respondent.
 With this argument, the Applicant essentially asks this tribunal to reevaluate and reweigh the evidence that was put before the Review Tribunal. This is the province of the trier of fact. The tribunal deciding whether to grant leave to appeal ought not to substitute its view of the persuasive value of the evidence for that of the Review Tribunal who made the findings of fact - Simpson v. Canada (Attorney General), 2012 FCA 82. Therefore, I find that this argument does not raise a ground of appeal that has a reasonable chance of success.
 The Applicant also asked the SST to reduce or rescind the overpayment that resulted from the termination of disability pension. In seeking a reduction in the overpayment of CPP disability pension, the Applicant argued that the Tribunal should consider his financial hardship, including his obligations to pay child support, buy new tools, and miscellaneous expenses. The Review Tribunal has no legal authority to grant this relief. Therefore, no error was made by not granting it. This argument is not a ground of appeal that has a reasonable chance of success.
 The Applicant further argued that the Review Tribunal did not consider or rule on his disability in the years 2005 or 2006, and that the overpayment was based on his income in 2007 and thereafter. The Federal Court of Appeal, in the Simpson decision, also decided that the Review Tribunal is presumed to have considered all of the evidence before it, including testimony and written material. Each and every piece of evidence need not be mentioned in the written decision of the review tribunal. I am bound by this decision. The information regarding whether the Applicant was disabled in 2005 or 2006, and the basis for the overpayment calculation was before the Review Tribunal, and was mentioned in the decision. I find that this was considered by the Review Tribunal, and ruled on as the claim was dismissed. Therefore this argument also does not raise a ground of appeal that has a reasonable chance of success.
 Finally, the Applicant argued that he was still partially disabled in 2005 and 2006, so should receive a partial disability pension. The Tribunal has no authority to grant this relief. There is no partial disability, nor any partial disability pension payable. The Review Tribunal made no error in not granting this relief. This argument is not a ground of appeal that has a reasonable chance of success.
 The Application is refused.
- Date modified: