K. Q. 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:
- K. Q. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- April 28, 2014
- Reference number:
- K. Q. v. Minister of Human Resources and Skills Development, 2014 SSTAD 80
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
Background & history of proceedings
 The Review Tribunal found that the Applicant has a minimum qualifying period of December 31, 2013, the date by which he is required to be found disabled. That date had yet to pass by the time of the hearing before the Review Tribunal on December 6, 2012.
 The Applicant seeks leave to appeal the decision of the Review Tribunal of June 14, 2013. The Review Tribunal had 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 hearing.
 The Applicant filed an application requesting leave to appeal (the “Application”) with the Appeal Division of the Social Security Tribunal (the “Tribunal”) on July 11, 2013, within the time permitted 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 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 submits the following, in support of his Application:
- He has additional medical evidence confirming that he will not be able to return to work, that his medical situation is severe and prolonged and renders him incapable regularly of pursuing any substantially gainful occupation due to his physical limitations, language barrier and education.
- He has had additional surgeries, tests and opinions which continue to support his application.
 The Applicant attached a functional capacity evaluation dated June 28, 2013, a medical report dated March 27, 2013 of Dr. Boorman and a vocational evaluation report dated March 3, 2011.
 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 Canada (Minister of Development),  FCJ No. 1252 (FC).
 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.
 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.
 I am unable to consider any new facts, medical records or opinions including the functional capacity evaluation and vocational evaluation report, or the fact that he has had additional surgeries and investigations, given the very narrow provisions of subsection 58(1) of the DESD Act.
 If the Applicant is requesting that we re-assess the evidence and decide in his favour based on the new facts, medical records and opinions, I am unable to do this, as subsection 58(1) of the DESD Act requires that I determine whether any of the reasons he has cited fall within any of the grounds of appeal and whether any of them have a reasonable chance of success. The leave application is not an opportunity to re-assess the evidence or to re-hear the claim to determine whether the Applicant is disabled as defined by the Canada Pension Plan.
 If the Applicant intends to file these additional medical records or opinions 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 has no jurisdiction in this case 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. In short, there are no grounds upon which I can consider any additional records or opinions which the Applicant might intend to file.
 The Application is refused.
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