F. S. v. Minister of Human Resources and Skills Development
- Social Security Tribunal decision – Appeal Division – Extension of time for leave to appeal decision
- Valerie Hazlett Parker
- Hearing date:
- Hearing type:
- F. S. and Minister of Human Resources and Skills Development
- Extension of time to file an application refused
- Decision date:
- May 6, 2014
- Reference number:
- F. S. v. Minister of Human Resources and Skills Development, 2014 SSTAD 90
 The Tribunal refuses to extend time for the leave to appeal application.
On December 28, 2012, a Review Tribunal determined that a Canada Pension Plan disability pension was not payable. The Applicant received this decision on January 15, 2013. The Applicant filed an application for leave to appeal (the “Application”) with the Pension Appeals Board on April 2, 2013. The Appeal Division of the Social Security Tribunal (the Tribunal) received the application on April 18, 2013 after the time to do so had expired.
 The Tribunal must decide whether to grant an extension of time to apply for leave to appeal.
 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”.
 Section 57 of the DESD Act provides that the Appeal Division may extend the time within which an application for leave to appeal may be made, but in no case may it be more than one year after the day on which the decision was communicated to the Applicant.
 The Applicant requested an extension of time to apply for leave to appeal because:
- a) He was attempting to obtain new documents and further medical evidence;
- b) He was attempting to retain counsel;
- c) He was attempting to correct information in the Review Tribunal decision
- d) He was slow in completing the application because of his poor health.
 The Applicant submitted the following in support of his application for leave to appeal:
- a) He clarified what he meant by some of his testimony, including:
- that he might have the ability and availability to work if he had fewer responsibilities in the home,
- that he could see himself working from home doing paperwork at his own pace, but he hadn’t found such work;
- he provided a more detailed description of his pain;
- his attempts to find work as a supply teacher and using a job agency;
- b) He corrected the name of the medical procedure he underwent to treat kidney stones, and what the anesthetist said to him on that occasion;
- c) He repeated his testimony that he is working, and only doing so as he has no other choice to continue to support his family;
- d) He believed that the work he does as a supply teacher could not be described as successful.
 The Respondent made no submissions.
 In assessing the request to extend time for leave to appeal, the Tribunal is guided by decisions of the Federal Court. In Canada (Minister of Human Resources Development) v. Gatellaro, 2005 FC 883 this Court concluded that the following factors must be considered and weighed when deciding this issue:
- a) A continuing intention to pursue the application;
- b) The matter discloses an arguable case;
- c) There is a reasonable explanation for the delay; and
- d) There is no prejudice to the other party in allowing the extension.
 The weight to be given to each of these factors may differ in each case, and in some cases, different factors will be relevant. The overriding consideration is that the interests of justice be served – Canada (Attorney General) v. Larkman, 2012 FCA 204.
 The Federal Court also concluded that the question of whether a party has an arguable case at law is akin to determining whether that party, legally, has a reasonable chance of success.
 The Applicant sent the Notice of Appeal to the Pension Appeals Board, which received it on April 2, 2013. It was forwarded to the Tribunal, which received it on April 18, 2013 just a few days after the deadline to file the application.
 These facts demonstrate that the Applicant clearly intended to apply for leave to appeal, and had a continuing intention to do so during the time of the delay. Also, I find that he had a reasonable explanation for the delay in this matter.
 The Applicant made no submissions regarding any prejudice to the other party due to his delay in pursuing this matter. Given the short period of delay, however, it is hard to imagine that there would be any prejudice to either party. The Respondent made no submissions. Therefore, I find that there would be no prejudice to the Respondent because of the Applicant’s delay in this matter.
 Finally, I must consider whether the appeal that has a reasonable chance of success. Although a leave to appeal application is a first, and lower, hurdle to meet than the one to be met at the hearing on the merits, the Application must still raise some arguable ground upon which the proposed appeal might succeed – Kerth v. Canada (Minister of Human Resources 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.
 The Applicant argued, first, that the Review Tribunal misquoted his testimony during the hearing. He clarified what he meant by this testimony. I find that the Review Tribunal considered all of the testimony as well as the written evidence before it. The decision summarized this evidence. Although it did not quote the Applicant’s testimony exactly, it summarized his evidence. It was not taken out of context. The Review Tribunal weighed all of the evidence and reached a conclusion.
 With this argument, the Applicant 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. Therefore, I find that this argument does not have a reasonable chance of success.
 The Applicant also corrected the name of the procedure performed to treat his kidney stones. He did not allege that the Review Tribunal made an error in the description of the procedure, its outcome or its impact on his health. In order for an error of fact to be considered as a ground of appeal under the DESD Act, it must be made in a perverse or capricious manner, or without regard to the material before the Review Tribunal. The Applicant does not allege any of this. I find that the error was not perverse, nor made capriciously. It was not significant. Clearly, it was made with regard to the evidence before it. Therefore, this is not a ground of appeal that has a reasonable chance of success.
 The Applicant also argued that the only reason he continues to work as a supply teacher on occasion is to support his family. The Review Tribunal made no error in finding that the Applicant continues to work on occasion as a supply teacher. The reason he does so is irrelevant to the decision to be made, so its omission from the Review Tribunal decision is not an argument that has a reasonable chance of success on appeal.
 The Applicant argued, further, that this work could by no means be described as gainful employment as he works infrequently. He offered to try to obtain a work history record from the school board. The Applicant did not provide any evidence to substantiate this argument at the Review Tribunal hearing. The promise of new evidence at this stage of the proceedings is not a ground of appeal that I can consider under the provisions of the DESD Act. Therefore, this is not a ground of appeal that has a reasonable chance of success. The Applicant has not submitted any ground of appeal that has a reasonable chance of success. In determining whether to grant an extension of time to seek leave to appeal, this is one factor that must be considered. I find that in this case, this factor must be given the most weight. Although the Applicant has explained the delay and there is no prejudice caused by the delay, this matter cannot proceed when there is no reasonable chance of success.
 For these reasons, the request for an extension of time to apply for leave to appeal is refused.
- Date modified: