L. H. 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:
L. H. and Minister of Human Resources and Skills Development
Application for leave to appeal is refused
Decision date:
April 29, 2014
Reference number:
L. H. v. Minister of Human Resources and Skills Development, 2014 SSTAD 82


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


[2] On February 15, 2013 a Review Tribunal determined that a Canada Pension Plan disability pension not payable.  The Applicant filed an application for leave to appeal (the “Application”) with the Appeal Division of the Social Security Tribunal on May 15, 2013.


[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 DESD Act provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success”.


[8] The Applicant submitted in support of the Application that leave to appeal should be granted because:

  1. a) The Review Tribunal made no finding whether the Applicant’s disability was prolonged;
  2. b) The Appellant suffered injuries in an identifiable event prior to the MQP and was severely disabled at that time, with medical evidence after the MQP that states this;
  3. c) The lack of medical evidence prior to the MQP is not a bar to entitlement to CPP disability pension;
  4. d) The Review Tribunal erred in its interpretation of the medical evidence when it concluded that the Applicant was not severely disabled under the CPP;
  5. e) The Review Tribunal’s overly strict interpretation of the severity criterion was an error in law.

[9] The Respondent made no submissions.


[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 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 Applicant argued, first, that the Review Tribunal made an error in not concluding whether his condition was prolonged.  The legal requirement to be disabled under the CPP is that the applicant have a disability that is both severe and prolonged. The Review Tribunal found that the Applicant’s disability was not severe. Therefore it made no error by not making a finding on the issue of whether the Applicant’s disability was also prolonged.  This is not a ground of appeal that has a reasonable chance of success.

[13] The Applicant correctly stated the law when he wrote that medical documentation that sets out that his condition deteriorated after the MQP was not a bar to being found disabled at or before the MQP.  He also correctly stated the law when he wrote that an applicant for CPP disability pension may have been disabled prior to the MQP even though there was no medical evidence dated prior to the MQP that supports this conclusion. The Review Tribunal decision does not state the law differently.  This statement of the law is not a ground of appeal.

[14] The Applicant also argued that the Review Tribunal came to the wrong conclusion about his disability, and that its stringent application of the legal test for disability under the CPP was an error in law. With this argument, he 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. The Review Tribunal considered all of the written and oral evidence before it in making its decision, and the decision reviewed medical records dated both before and after the MQP. It gave what weight it found appropriate to the evidence before it.  I find that the Review Tribunal made no error in this regard. It is not for me to reweigh this evidence, nor to substitute my conclusion for that of the Review Tribunal.  This argument does not raise grounds of appeal that has a reasonable chance of success.


[15] The Application is refused for the reasons set out herein.

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