E. N. 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:
E. N. and Minister of Human Resources and Skills Development
Decision:
Application for leave to appeal is refused
Decision date:
May 6, 2014
Reference number:
AD-13-771
Citation:
E. N. v. Minister of Human Resources and Skills Development, 2014 SSTAD 92

Decision

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

Introduction

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

[2] On June 3, 2013, a Review Tribunal dismissed the Applicant's appeal from the decision confirming the overpayment owed to the CPP. ??? The Applicant filed an application for leave to appeal (the "Application") with the Appeal Division of the Social Security Tribunal on September 9, 2013.

Issue

[3] The Tribunal must decide 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 in support of the Application that the Review Tribunal did not comply with its duty to act fairly or breached natural justice.

[9] She also submitted that the Review Tribunal acted with actual bias, imputed bias or apparent bias, that the CPP denied her due process and the right to make a living.

[10] Finally the Applicant claimed that she was not able to repay the amount owed to the CPP as a result of an overpayment when her CPP disability pension was terminated.

[11] The Respondent made no submissions.

Analysis

[12] 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).

[13] 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.

[14] The Applicant argued that the Review Tribunal breached natural justice, acted unfairly or was biased. She did not, however, provide any factual basis for these claims. Without a factual basis these claims are not clear and cannot be evaluated. 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.

[15] Section 58 of the DESD Act sets out what grounds of appeal can be considered in this case. The Fact that the Applicant is unable to repay an amount to the CPP is not a ground of appeal in the legislation. Similarly, the conduct of the CPP regarding her ability to make a living is not listed as a ground of appeal in the DESD Act. Therefore, no matter how much sympathy I feel for the Applicant, I am unable to conclude that these arguments have any chance of success on appeal.

Conclusion

[16] The Application is refused for these reasons.

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