K. B. v. Minister of Human Resources and Skills Development

Institution:
Social Security Tribunal decision – Appeal Division – Leave to Appeal decision
Member:
Valerie Hazlett Parker
Hearing date:
N/A
Hearing type:
N/A
Between:
K. B. and Minister of Human Resources and Skills Development
Decision:
Application for leave to appeal is refused
Decision date:
April 25, 2014
Reference number:
AD-13-689
Citation:
K. B. v. Minister of Human Resources and Skills Development, 2014 SSTAD 76

Decision

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

Introduction

[2] On April 9, 2013, a Review Tribunal determined that a Canada Pension Plan disability pension was not payable. The Applicant filed an application for leave to appeal (the “Application”) with the Appeal Division of the Social Security Tribunal (the Tribunal) on July 10, 2013.

Issue

[3] The Tribunal must decide whether appeal has a reasonable chance of success.

The law

[4] 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”.

[5] 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.

[6] The decision of the Review Tribunal is considered a decision of the General Division

[7] Subsection 58(2) of the DHRSD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.

Submissions

[8] The Applicant submitted in support of the Application that she disagreed with the Review Tribunal decision. She clarified some of her testimony, apologized for losing her temper during the hearing, and offered to provide further evidence of her medical condition by videotape.

[9] The Respondent made no submissions.

Analysis

[10] 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), [1999] FCJ No. 1252 (FC).

[11] 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.

[12] The DESD Act sets out the only grounds of appeal that I can consider in an application for leave to appeal. The Applicant does not allege that the Review Tribunal erred in law, breached natural justice, or made an erroneous finding of fact. The Applicant disagreed with the conclusion reached by the Review Tribunal. This is not a ground of appeal that has a reasonable chance of success.

[13] The offer of further evidence of her medical condition, by providing a videotape, is also not a ground of appeal that has a reasonable chance of success. I cannot consider any new evidence, no matter how helpful, in considering whether to grant leave to appeal. Section 58 of the DESD Act sets out the only grounds of appeal that I can consider, and new evidence is not one of them.

Conclusion

[14] The Application is refused.

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