R. H. 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:
- R. H. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- April 28, 2014
- Reference number:
- R. H. v. Minister of Human Resources and Skills Development, 2014 SSTAD 78
 The Tribunal refuses application for leave to appeal to the Appeal Division of the Social Security Tribunal.
Background & history of proceedings
 The Applicant seeks leave to appeal the decision of the Review Tribunal of March 4, 2013. The Review Tribunal 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, 2003 (the “MQP”). The Applicant filed an undated letter with the Pension Appeals Board on May 24, 2013 and it was accepted as an Application Requesting Leave to Appeal with the Appeal Division of the Social Security Tribunal (the “Tribunal”), within the time permitted for filing under the Department of Employment and Social Development (DESD) Act.
 Does the appeal have a reasonable chance of success?
 According to subsections 56(1) and 58(3) of the 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 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 is seeking leave on the following grounds:
- Since 2001, he has had an ongoing disability which continues to cause various restrictions and limitations. Three specialists were unable to guarantee a successful outcome following surgery for his lower back and have therefore recommended against surgery.
- He has had ongoing issues involving Workers’ Compensation Board of Alberta (“WCB”). He thought that he would have received some support from WCB but instead, WCB never contacted him. He also wrote that WCB obtained “information to fit their needs” and that he has been mistreated from the outset.
- He has contributed to the Canada Pension Plan and expected that he would be able to rely on it for financial support when the need arose.
 The Applicant also filed the following two documents with his Application:
- Letter dated March 16, 2011 from Dr. Owen R.T. Williams, neurosurgeon with the Health Sciences Centre of Winnipeg, to the Applicant’s family physician. Ultimately, Dr. Williams suggested that a referral to a rehabilitation physiatrist might be more appropriate for the Applicant, based on his stated clinical condition.
- CT scan of lumbar spine taken on February 18, 2011.
 It is unclear why the Applicant filed the CT scan with the Application materials, as the Review Tribunal had a copy available for its consideration.
 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 for leave to be granted: Kerth v. Canada (Minister of Human Resources Development),  FCJ No. 1252 (FC).
 Subsection 58(1) of the 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.
 I am required to satisfy myself that 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.
 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.
 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 within any of 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.
Ongoing Disability and “New Facts”
 The letter dated March 16, 2011 from Dr. Owen R.T. Williams is of no relevance to this leave application. Apart from the fact that it does not speak to the Applicant’s medical condition, I would have been unable to consider it or, for that matter, any new records or opinions, given the narrow constraints of subsection 58(1) of the Act. This is not a re-hearing of the Applicant’s claim. The leave application is not an opportunity to re-assess and re-weigh the evidence to determine whether the Applicant is disabled as defined by the Canada Pension Plan.
 If the Applicant is requesting that we re-assess the evidence and decide in his favour based on the facts, medical records and opinions, I am unable to do this, as subsection 58(1) of the Act requires that I determine whether any of the reasons he has cited fall within any of the enumerated grounds of appeal and whether any of them have a reasonable chance of success.
Workers' Compensation Board of Alberta
 The Applicant refers to his relationship with WCB and advises that he has been mistreated. Any mistreatment that he may have received at the hands of WCB is of no relevance to this leave application, as the Applicant had to cite any errors or breaches of natural justice to have been committed by the Review Tribunal. To fall into one of the grounds of appeal and succeed in a leave application, the Applicant would have had to show that there was an arguable ground arising out of any mistreatment he might have received from the Review Tribunal, as that may have qualified as a breach of the principles of natural justice. The error or failing must have been that of the Review Tribunal.
Canada Pension Plan
 The Applicant submits that he is entitled to disability benefits as he has made contributions to the Canada Pension Plan and had expected that he would be able to rely on benefits, in the event any injuries or medical conditions were to arise which render him unable to work.
 The Federal Court of Appeal in Miceli-Riggins v. Attorney General of Canada, 2013 FCA 158 examined the objectives of the Canada Pension Plan. The Court stated:
 . . . The Plan is not supposed to meet everyone’s needs. Instead, it is a contributory plan that provides partial earnings-replacement in certain technically- defined circumstances. It is designed to be supplemented by private pension plans, private savings, or both. See Granovsky v. Canada (Minister of Employment and Immigration, 2000 SCC 28 (CanLII), 2000 SCC 28 at
paragraph 9, 2000 SCC 28 (CanLII),  1 S.C.R. 703.
 Indeed, it cannot even be said that the Plan is intended to bestow benefits upon demographic groups of one sort or another. Instead, it is best regarded as a contributory-based compulsory insurance and pension scheme designed to provide some assistance – far from complete assistance – to those who satisfy the technical qualification criteria.
 Like an insurance scheme, benefits are payable on the basis of highly technical qualification criteria.
 In the words of the Supreme Court,
The Plan was designed to provide social insurance for Canadians who experience a loss of earnings due to retirement, disability, or the death of a wage-earning spouse or parent. It is not a social welfare scheme. It is a contributory plan in which Parliament has defined both the benefits and the terms of entitlement, including the level and duration of an applicant’s financial contribution.
(Granovsky, supra at paragraph 9.) (my emphasis)
 Disability benefits are not available to everyone who suffers from a disability. It is clear that an applicant must meet certain requirements in order to qualify for disability benefits under the Canada Pension Plan. The Review Tribunal did not find that the Applicant had met those requirements.
 As the Applicant has not pointed to any errors on the part of the Review Tribunal, I am unable to find that the appeal has a reasonable chance of success. The Application is refused.
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