J. L. 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:
- J. L. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- April 30, 2014
- Reference number:
- J. L. v. Minister of Human Resources and Skills Development, 2014 SSTAD 85
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
 On March 19, 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 June 11, 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 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 submitted in support of the Application that leave to appeal should be granted because:
- He would be attending with an orthopedic surgeon, and anticipated that the new medical evidence would support his claim;
- He relied on specific medical reports that were before the Review Tribunal;
- He had complied with all recommendations of his health care practitioners, and the Review Tribunal erred in finding that he did not;
- He had attempted to find alternate employment and to rehabilitate himself, and the Review Tribunal erred in finding that he had not.
 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 an exhaustive list of grounds of appeal. This does not include the provision of new medical evidence. Therefore, the Applicant’s promise to provide further medical evidence is not a ground of appeal that has a reasonable chance of success.
 If the Applicant wishes to file new medical reports 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 to rescind or amend the decision with the same Division that made the decision (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 requires an applicant to demonstrate that any new facts are material and that they could not have been discovered at the time of the hearing with the exercise of reasonable diligence.
 The Applicant also argued that he complied with all recommended medical treatment, made all reasonable attempts to rehabilitate himself and find alternate work, and that the Review Tribunal erred in finding that he had not done so. The Review Tribunal decision does not state that the Applicant unreasonably refused any medical treatment or potential job opportunities. The fact that the Applicant had not tried all possible medical treatments, and that he had not attempted possible alternate jobs were factors considered by the Review Tribunal in reaching the conclusion that the Applicant was not disabled.
 If I am wrong on this, I find that any errors made by the Review Tribunal do not constitute grounds of appeal. Section 58 of the DESD Act provides that leave to appeal may be granted where the Review Tribunal made an error of fact in a perverse or capricious manner, or without regard to the material before it. The errors were not unreasonable or perverse. The Review Tribunal had regard for the material before it, as it referenced both the testimony and the written documents that were presented.
 With the arguments regarding the factual errors, the Applicant, essentially, asks me to reweigh the evidence that was before the Review Tribunal to reach a different conclusion. The Simpson v. Canada (Attorney General), 2012 FCA 82 decision stated that assigning weight to evidence, whether oral or written, is the job of the trier of fact, which is the Review Tribunal. A Member hearing an application for leave to appeal may not substitute their view of the evidence for that of the trier of fact. I find an invitation to reweigh the evidence is not a ground of appeal that has a reasonable chance of success.
 The Application is refused for these reasons.
- Date modified: