R. I. 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:
- R. I. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- April 30, 2014
- Reference number:
- R. I. v. Minister of Human Resources and Skills Development, 2014 SSTAD 84
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
 On May 13, 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 August 6, 2013.
 The Tribunal must decide whether the appeal has a reasonable chance of success.
 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”.
 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.
 The decision of the Review Tribunal is considered a decision of the General Division
 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”.
 The Applicant submitted in support of the Application three additional medical documents, being a letter from Dr. Sommerville dated January 7, 2008, a Medical History Report showing all medical appointments in the Province of British Columbia, and a letter from Dr. Valnicek dated December 7, 2007.
 The Respondent made no 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 in order for leave to be granted: Kerth v. Canada (Minister of Development),  FCJ No. 1252 (FC).
 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.
 Section 58 of the DESD Act sets out the only grounds of appeal that can be considered in this matter. Although the Applicant filed additional medical records with her Application, I am unable to consider any new materials given the narrow provisions of subsection 58(1) of the DESD Act.
 Even if I were permitted to review any additional medical records, the Applicant has not stated why she has filed these additional records. She has not indicated how the additional medical opinions fall into any of the grounds of appeal listed in the DESD Act.
 If the Applicant has filed the medical reports in an effort to rescind or amend the decision of the Review Tribunal, she must comply with the requirements set out in sections 45 and 46 of the Social Security Tribunal Regulations, and she 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 to rescind or amend 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 in this case has no jurisdiction 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. This is not a re- hearing of the merits of the claim
 The Application is refused.
- Date modified: