U. S. v. Minister of Human Resources and Skills Development

Institution:
Social Security Tribunal decision – Appeal Division – Leave to Appeal decision
Member:
Janet Lew
Hearing date:
N/A
Hearing type:
N/A
Between:
U. S. and Minister of Human Resources and Skills Development
Decision:
Application for leave to appeal is refused
Decision date:
April 29, 2014
Reference number:
AD-13-763
Citation:
U. S. v. Minister of Human Resources and Skills Development, 2014 SSTAD 83

Decision

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

Background & history of proceedings

[2] The Applicant seeks leave to appeal the decision of the Review Tribunal of May 13, 2013.  The Review Tribunal determined that a Canada Pension Plan disability pension was not payable to the Applicant, as it found that her disability was not “severe” at the time of her minimum qualifying period of December 31, 2003 (“MQP”).  The Applicant received the decision of the Review Tribunal on May 13, 2013. The Applicant filed an Application Requesting Leave to Appeal (the “Application”) with the Appeal Division of the Social Security Tribunal (the “Tribunal”) on August 2, 2013, within the time permitted under the Department of Employment and Social Development (DESD) Act.

Issue

[3] Does the appeal have a reasonable chance of success?

The law

[4] 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”.

[5] 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”.

Applicant's submissions

[6] The Applicant seeks leave on the grounds that she is “absolutely not satisfied” with the decision of the Review Tribunal. The Applicant submits that the decision is wrong as there was some evidence before the Review Tribunal that she was not sane.

[7] The Applicant submits that the health care system failed her and that as a consequence, she was late in being diagnosed, despite exhibiting symptoms of mental illness very early on. The Applicant submits that the Review Tribunal failed to take this into consideration and should have recognized that her denial of illness early in the years of onset (which coincide with her MQP) is not only commonplace amongst those with mental health disorders, but also inevitably resulted in delays in being diagnosed and in receiving treatment.

Respondent's submissions

[8] The Respondent has not filed any written submissions.

Analysis

[9] 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), [1999] FCJ No. 1252 (FC).

[10] Subsection 58(1) of the DESD Act sets out the grounds of appeal as being limited to 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.

[11] For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.

[12] 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.

[13] 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. She 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 grounds of appeal.

[14] 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 her submissions which fall into the permitted 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.

[15] The Applicant contends that as a diagnosis had yet to be borne, the Review Tribunal failed to consider that she was already exhibiting symptoms of mental illness by the time of her MQP. While a diagnosis had not yet been made and while there may have been a lack of documentary evidence before the Review Tribunal, it had been prepared to consider the oral testimony of the Applicant and her witnesses, to ascertain what symptoms the Applicant might have been experiencing and to determine if she was disabled. It cannot be said that there was an error or failure on the part of the Review Tribunal in this regard.

Conclusion

[16] The Application is refused.

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