C. S. v. Minister of Human Resources and Skills Development
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- Social Security Tribunal decision – Appeal Division – Leave to Appeal decision
- Janet Lew
- Hearing date:
- Hearing type:
- C. S. and Minister of Human Resources and Skills Development
- Application for leave to appeal is granted
- Decision date:
- May 7, 2014
- Reference number:
- C. S. v. Minister of Human Resources and Skills Development, 2014 SSTAD 93
 The Social Security Tribunal grants leave to appeal to the Appeal Division.
Background and history of proceedings
 The Applicant seeks leave to appeal the decision of the Review Tribunal issued on May 14, 2012. The Review Tribunal had determined that a Canada Pension Plan disability pension was not payable to the Applicant, as it found that her disability was not "severe" at the time of her minimum qualifying period of December 31, 1998.
 The Applicant wrote to the Office of the Commissioner of Review Tribunals (the "OCRT") on April 9, 2013, advising that she was now ready to proceed with her hearing before the Review Tribunal and was requesting that a hearing now be scheduled.
 The Director - Operations of the Social Security Tribunal responded to the Applicant on June 3, 2013, advising her that the Review Tribunal had rendered a decision on the appeal. The Director - Operations of the Social Security Tribunal advised the Applicant that the decision of the Review Tribunal appeared to have been initially sent to an incorrect address.
 The Applicant received the decision of the Review Tribunal on June 4, 2013. She then filed an application requesting leave to appeal (the "Application") with the Appeal Division of the Social Security Tribunal on July 18, 2013, within 90 days after the day on which the decision had been communicated to her. As such, I consider the Applicant's application for leave to appeal to have been made within the time permitted under subsection 57(1)(b) of the Department of Employment and Social Development (DESD) Act.
 Does an appeal have a reasonable chance of success?
 According to subsections 56(1) and 58(3) of the 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(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 explains that she was surprised to learn in June 2013 that a Review Tribunal had rendered a decision on her appeal, when she had been led to believe that the hearing of March 7, 2012 before the Review Tribunal had been adjourned.
 The Applicant submits that the OCRT had in mid-2012 or thereabouts mistakenly sent a copy of the decision of the Review Tribunal to an incorrect address. This was confirmed in a letter dated June 3, 2013 from the Director - Operations of the Social Security Tribunal. My initial inference from this is that the OCRT had - through an administrative error - failed to notify the applicant of the Review Tribunal hearing of March 7, 2012 in the first instance, and that she was therefore denied an opportunity to fully and fairly present her submissions. However, the decision of the Review Tribunal indicates that the Applicant had to have been aware that a hearing had been scheduled for that date, as apparently she had contacted the OCRT either the day before or the morning of the hearing, advising that she would be unable to attend the proceedings due to a funeral.
 The Applicant further submits that she is disabled as defined by the Canada Pension Plan and that her medical condition is severe and prolonged.
 The Applicant has not made any submissions or suggestions that the Review Tribunal committed any errors in law or in findings of fact in arriving at its decision, or that it failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction. While I assume that the Applicant intended to attend the Review Tribunal hearing, at the same time, she does not explicitly state that she had intended to give additional evidence or make additional submissions, or file any additional documentary evidence with the Review Tribunal. While clearly she disagrees with and is seeking to appeal the decision of the Review Tribunal, nowhere does she state that she disputes the merits of the decision of the Review Tribunal itself.
 The Respondent has not filed any written 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 for leave to be granted: Kerth v. Canada (Minister of Human Resources Development),  FCJ No. 1252 (FC).
 Subsection 58(1) of the DESD Act sets out the grounds of appeal as being limited to 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.
 For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.
 The Applicant's sole reason for seeking leave to appeal is that she was never properly informed of the decision of the Review Tribunal. This falls far short of satisfying me that there is a reasonable chance of success.
 While clearly she disagrees with and is seeking to appeal the decision of the Review Tribunal, nowhere does she state that she disputes the merits of the decision of the Review Tribunal itself, or that she was denied a fair hearing. The Review Tribunal proceeded in her absence and reviewed the documentary evidence before it. There is no indication from the Applicant that she intended to give any additional evidence or make further submissions, or challenge the submissions of the Minister. If I were to consider the reason for appeal as set out before me, I would find that it discloses no grounds of appeal for me to consider.
 A detailed background to the history of proceedings is however necessary to fully address the Applicant's submissions:
- (a) The Applicant filed an Application for Disability Benefits Canada Pension Plan on July 4, 2007. She listed a home address of "400 X, Apart #221". (See page 56 of AD2-OCRT.) The accompanying CPP Medical Report dated May 23, 2007 also shows the same home address for the Applicant. (See page 67 of AD2- OCRT.)
- (b) The Minister of Human Resources Development (the "Minister") denied the Applicant's application for disability benefits on January 4, 2008. Service Canada sent a letter to the Applicant to the address of "221 - 400 X." (See page 41 of AD2-OCRT.)
- (c) The Applicant sought a reconsideration of the Minister's decision on March 17, 2008. Her letter indicated an address of "400 - 221 X". The Minister acknowledged her letter on April 17, 2008, by writing to her at "400 - 221 X". (See pages 43 and 44 of AD2-OCRT.)
- (d) The Minister denied the reconsideration request on July 30, 2008, and sent its reconsideration decision to the Applicant to the address of "400 - 221 X.". (See page 35 or 50 of AD2-OCRT.)
- (e) On August 3, 2008, the Applicant sought an appeal of the reconsideration decision to a Review Tribunal. She stated her address as being "400 - 221 X.". (See page 22 or 93 of AD2-OCRT.)
- (f) The OCRT acknowledged the Applicant's letter on September 29, 2008 by writing to her at "400 - 221 X". (See page 112 of AD2-OCRT.)
- (g) On May 5, 2009, the OCRT provided the Applicant with a copy of information received from the Department of Human Resources and Skills Development Canada. The OCRT sent this information to the address of "400 - 221 X". (See page 59 of AD2-OCRT.)
- (h) On June 24, 2010, the OCRT scheduled a hearing before the Review Tribunal for October 13, 2010. (See page 143 of AD2-OCRT.) The OCRT sent a reminder letter to the Applicant on September 14, 2010, to the address of "400 - 221 X". (See page 146 of AD2-OCRT.)
- (i) Shortly before the hearing of October 13, 2010, the Applicant sought an adjournment, on the basis that she was experiencing a flare-up of her Crohn's disease. She provided a note dated October 13, 2010 from her family physician. An adjournment of the October 2010 hearing was granted. On October 28, 2010, the OCRT wrote to the Applicant confirming the adjournment. The OCRT sent this letter to the address of "400 - 221 X". (See page 140 of AD2-OCRT.)
- (j) On January 31, 2011, the OCRT scheduled a second Review Tribunal hearing for May 5, 2011. It advised the Applicant of this hearing date by sending her a letter to the address of "400 - 221 X". (See page 137 of AD2-OCRT.)
- (k) On March 30, 2011, the OCRT sent a letter to the Applicant, reminding her of the Review Tribunal hearing scheduled for May 5, 2011. The letter was sent to "400 - 221 X. (See page 135 of AD2-OCRT.)
- (l) On April 11, 2011, the Minister's representative prepared submissions, in response to the Applicant's request of October 2010 for an adjournment. The OCRT subsequently sent a copy of the Minister's submissions to the Applicant on April 13, 2011, to the address of "400 - 221 X". (See page 157 of AD2-OCRT.)
- (m) The Applicant did not attend this second Review Tribunal hearing scheduled for May 5, 2011, as she had requested an adjournment through the OCRT. She sought an adjournment on the grounds that she intended to submit additional medical evidence and was also endeavouring to retain a representative. She also provided a note dated May 4, 2011 from her family physician. The note indicates that the Applicant was on antibiotics and that, due to medical reasons, she was unable to attend the hearing. The Review Tribunal wrote that it "very reluctantly" was granting an adjournment, and that it expected that the matter would proceed at the next scheduled hearing date, "whether or not the Appellant has more relevant medical information and/or a representative". (See pages 127 and 128 of AD2-OCRT.) There is no indication in the OCRT file that the Applicant ever retained a representative or that she ever filed any additional records or reports.
- (n) On May 5, 2011, the OCRT sent additional documentation to the parties. The OCRT wrote to the Applicant at the address "400 -221 X". (See page 150 of AD2-OCRT.)
- (o) On May 6, 2011, the OCRT confirmed the adjournment of this second Review Tribunal hearing by writing to the Applicant at her address of "400 - 221 X". The letter was sent by registered mail but was unclaimed. (See page 125 of AD2-OCRT.)
- (p) The Review Tribunal hearing was scheduled a third time, for March 7, 2012. The OCRT notified the Applicant of the date of the third Review Tribunal hearing on January 11, 2012 and again on January 24, 2012. Notification of the hearing was sent by registered mail to the Applicant to the address "221 X, Apt. 400", but the letters went unclaimed. (See pages 17 and 123 of AD2-OCRT.)
- (q) The OCRT also provided the Applicant with additional information on January 24, 2012. It forwarded this information to the Applicant to the address "221 X, Apt. 400. (See page 153 of AD2-OCRT.)
- (r) The Review Tribunal proceeded with the hearing on March 7, 2012, in the Applicant's absence. It rendered a decision and it was issued on May 14, 2012.
- (s) The OCRT sent a copy of the Review Tribunal decision to the Applicant by registered mail on May 14, 2012 and again by regular mail on June 8, 2012, both to the address "221 X, Apt. 400". The registered letter went unclaimed. (See pages 7 and 8 of AD2-OCRT.)
- (t) At paragraph 2 of its decision, the Review Tribunal wrote,
The Appellant was not present at the hearing. The Review Tribunal contacted the Office of the Commissioner of Review Tribunals (OCRT) where the client services officer reported that the Appellant had contacted the general telephone number for the OCRT and advised the day before, or the morning of the hearing (after hours), that she would not be able to attend the hearing as she had to attend a funeral. The Appellant also called the OCRT during business hours to confirm that her voicemail had been received, however, did not speak with the client services officer.
- (u) The Applicant does not appear to have notified the OCRT as to whose funeral she was attending, when she learned of the funeral or why she did not notify the OCRT sooner that she would not be attending the Review Tribunal hearing.
- (v) The Applicant wrote to the OCRT on April 9, 2013, requesting that a hearing before the Review Tribunal could now be scheduled, unaware that the Review Tribunal had not only conducted a hearing, but had also rendered a decision following that hearing. In her letter of April 9, 2013, the Applicant noted her address as being "400 X Apt #221". (See page 2 of AD2-OCRT.)
- (w) As noted above, the Director - Operations of the Social Security Tribunal wrote to the Applicant on June 3, 2013, at her address at "Apt. 221, 400 X". (See page 4 of AD2-OCRT.)
- (x) I note that various documents contained in the OCRT hearing file provide addresses for the Applicant, as follows:
- Prescription Authorization Request printed on June 27, 2007 - shows the Applicant's address as "400 X #221". (See pages 94 to 97 of AD2- OCRT.)
- Patient Medical History Report printed on July 16, 2004 - shows the Applicant's address as "400 X #221". (See pages 98 and 99 of AD2-OCRT.)
 The Applicant could well be the author of her own misfortune. It seems to me that the address of Apartment 400 - 221 X (which the Applicant now purports is inaccurate) originated with the Applicant herself, when she wrote to the Minister on March 17, 2008 and provided an address of Apartment 400 - 221 X. This address continued to be used continuously after March 17, 2008 until June 8, 2012, after which the Applicant wrote to the Social Security Tribunal and advised that her address is Apartment 221 - 400 X.
 If the Applicant never resided at nor had a mailing address of Apartment 400 - 221 X, it is curious as to how the Applicant ever learned of the first, second and third scheduled Review Tribunal hearing dates of October 13, 2010, May 5, 2011 and March 7, 2012.
 Had the Applicant not contacted OCRT the day before or the morning of the hearing on March 7, 2012, I might have been prepared to find that the Applicant had raised a ground upon which the appeal might have a reasonable chance of success. I might have been prepared to do so, as there would have then been justifiable doubts as to whether the Applicant might have been aware of the proceedings at all, and secondly, doubts as to whether she might have received a complete hearing file in order to prepare for the hearing, as some of the materials were sent to the purported incorrect address. These doubts could have raised questions as to whether the Applicant might have been given a fair hearing.
 That said, I do not doubt that the Applicant was genuinely surprised to learn that the Review Tribunal had indeed proceeded and that it had rendered a decision. Otherwise, she would not have written to the OCRT on April 9, 2013, requesting that it schedule a hearing before a Review Tribunal. She may well have reasonably expected that the hearing in March 2012 might have been adjourned, as she was unable to attend due to a funeral, and in light of the fact that she had twice previously requested and received adjournments. However, the decision of the Review Tribunal does not indicate that the Applicant actually sought an adjournment of the proceedings of March 7, 2012. There may well have been communication errors between the Applicant and the OCRT in this regard.
 There is no indication that the Applicant might have challenged the Minister's submissions, or that she might have filed additional medical information at the hearing. Nonetheless, had she been aware that an adjournment had not already been granted by the OCRT or that the Review Tribunal would not grant an adjournment on March 7, 2012, she may have attended the Review Tribunal hearing after all, instead of attending the funeral. She may have then realized that the documentary evidence on file was rather Spartan and may then as a consequence have given oral evidence as to how her medical condition impacted her, particularly at the time of her minimum qualifying period. She may have also been able to address her employer's evidence that she was able to work on a part-time basis after her minimum qualifying period, notwithstanding her medical condition. She may have been able to impress the Review Tribunal that she is a compelling witness, or she may have given persuasive oral submissions. Overall, she may have satisfied the Review Tribunal that while the file materials were seemingly somewhat lacking, on balance, the evidence could have showed that she was disabled as defined by the Canada Pension Plan.
 I am prepared to grant leave to appeal in this limited instance, as I am satisfied that the appeal has a reasonable chance of success on the grounds that, due to possible errors in communication, the Applicant may not have been afforded a fair hearing.
 The appeal will not involve any review or assessment of any evidence, as it is not a re- hearing and no determination will be made as to whether or not the Applicant is disabled as defined by the Canada Pension Plan. While I am prepared to grant leave to appeal, the Applicant should be prepared to provide or address the following issues, prior to or at the hearing of any appeal, to enable me to fully consider the issues on appeal:
- a) An explanation as to why she has not provided the materials she indicated that she would following the second Review Tribunal hearing,
- b) What efforts the Applicant has undertaken to obtain and provide any additional medical or other documentation not already contained in the OCRT file, particularly any early medical records produced at or around the time of her minimum qualifying period, and when she took steps to acquire this information,
- c) A list of any additional medical records or other documentation which the Applicant has obtained in support of her claim for disability benefits, and when she obtained this documentation, and
- d) Copies of any notes she might have prepared in advance of the hearing of March 7, 2012.
 For the reasons stated above, the Application is granted.
 This decision granting leave to appeal in no way presumes the result of the appeal on the merits of the case.
- Date modified: