A. M. F. v. Minister of Human Resources and Skills Development

Institution:
Social Security Tribunal decision – Appeal Division – Leave to Appeal decision
Member:
Valerie Hazlett Parker
Hearing date:
N/A
Hearing type:
N/A
Between:
A. M. F. and Minister of Human Resources and Skills Development
Decision:
Application for leave to appeal is refused
Decision date:
May 6, 2014
Reference number:
AD-13-770
Citation:
A. M. F. v. Minister of Human Resources and Skills Development, 2014 SSTAD 91

Decision

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

Introduction

[2] On April 26, 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 13, 2013.

Issue

[3] The Tribunal must decide whether the 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".

Submissions

[8] The Applicant submitted that leave to appeal should be granted because:

  1. a) The Applicant is disabled based on the evidence;
  2. b) The Review Tribunal's decision was incorrect;
  3. c) The Review Tribunal misinterpreted the evidence;
  4. d) The Review Tribunal misapplied the evidence;
  5. e) The Review Tribunal misapplied the definition of disability in not finding the Applicant disabled.

The Respondent made no 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 in order for leave to be granted: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC).

[10] 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.

[11] To support her request for leave to appeal, the Applicant repeated some of the evidence that was before the Review Tribunal. She did not allege that the Review Tribunal made any error of fact. Section 58 of the DESD Act sets out what grounds of appeal are available in this case. The repetition of evidence is not one of these grounds.

[12] The Applicant asks, essentially, that I reweigh the evidence that was before the Review Tribunal to come to a different conclusion than it did. 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, there is no reasonable chance of success based on this argument.

[13] The remaining arguments put forward by the Applicant are bald statements without any factual basis. For example, the Applicant alleged that the Review Tribunal misapplied the evidence or that it misapplied the legal test to be found disabled, without setting out how the misapplication occurred and how this was gave rise to a ground of appeal set out in section 58 of the DESD Act. Without this, I find that these grounds of appeal are not clear. In Pantic v. Canada (Attorney General), 2011 FC 591, the Federal Court concluded that a ground of appeal cannot be said to have a reasonable chance of success if it is not clear. Therefore, these grounds of appeal have no reasonable chance of success.

Conclusion

[14] The Application is refused for these reasons.

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