D. S. B. v. Minister of Human Resources and Skills Development
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- Social Security Tribunal decision – Appeal Division - Extension of time and leave to appeal decision
- Janet Lew
- Hearing date:
- Hearing type:
- D. S. B. and Minister of Human Resources and Skills Development
- Extension of time to file an application refused
- Decision date:
- May 7, 2014
- Reference number:
- D. S. B. v. Minister of Human Resources and Skills Development, 2014 SSTAD 95
 The Tribunal refuses the application to extend the time for filing and application for leave to appeal to the Appeal Division of the Social Security Tribunal.
Background & history of proceedings
 The Applicant seeks an extension of time for filing an application for leave to appeal, and also seeks leave to appeal the decision of the Review Tribunal of August 8, 2012. The Review Tribunal had determined that a Canada Pension Plan disability pension was not payable to the Applicant, as it found that his disability was not “severe” at the time of his minimum qualifying period of December 31, 1996 (the “MQP”). The Applicant filed an application requesting leave to appeal (the “Application”) with the Appeal Division of the Social Security Tribunal (the “Tribunal”) on August 6, 2013, well beyond the 90-day deadline permitted under the Department of Employment and Social Development (DESD) Act.
 Should the Appeal Division extend the time for filing of the Application?
 Does the appeal have a reasonable chance of success?
 According to subsection 57(2) of the DESD Act, “the Appeal Division may allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant”.
 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”.
Late filing of application
 After receiving the decision of the Review Tribunal, the Applicant began to appreciate that the decision was based in part on his MQP. He subsequently located income tax documentation which he ultimately learned would allow him to amend his 2006 return and could extend his MQP. He only learned of this possibility in April 2013, but by then, the time for filing a leave application had elapsed.
Application for leave
 The Applicant set out a number of grounds of appeal in support of his application requesting leave to appeal the decision of the Review Tribunal. They include the following, that:
- (a) He is unable to file a new application with the General Division, based on this new information, and as such, is seeking an appeal;
- (b) An extension of the MQP merits a determination or hearing as to whether he can now be found disabled by this later MQP; and
- (c) The Review Tribunal miscalculated his MQP, in that it “failed to properly exercise its jurisdiction to find the right date, erred in law in assessing the wrong MQP and failed to properly consider the evidence in front of it”.
 The Respondent has not filed any written submissions.
Late filing of application
 In Canada (Minister of Human Resources Development) v. Gattelaro, 2005 FC 833, the Court set out the four criteria which the Appeal Division should consider and weigh in determining whether to extend the time period beyond 90 days within which an applicant is required to file his application for leave to appeal, as follows:
- 1. A continuing intention to pursue the application or appeal
- 2. The matter discloses an arguable case
- 3. There is a reasonable explanation for the delay, and4. There is no prejudice to the other party in allowing the extension.
 I will deal with the issue of prejudice firstly. The Respondent was notified that the Applicant had filed his Application on or about November 26, 2013. The Respondent has not filed any submissions in response to the leave application or in respect of the issue as to whether it would be appropriate to allow an extension of time for filing of the leave application. The Respondent has not filed any submissions regarding any prejudice it might suffer if an extension were to be allowed.
 In Leblanc v. Minister of Human Resources Development, 2010 FC 641, the Court found that there was no prejudice with a delay of approximately 9 months and, that to find otherwise on the facts, fell “outside the range of possible acceptable outcomes and was unreasonable”. The Court said,
“The Board found that the Minister would be prejudiced in preparing her response to the appeal due to the passage of nine months. The Board stated that witnesses’ memory would be diminished and that their power of recollection would decrease. The Board was also concerned that there be finality to proceedings under the Canada Pension Plan. I would note that the witnesses in this case will likely be the applicant and her medical witnesses. In my opinion, a nine month delay would not effect (sic) the applicant’s memory with respect to her medical condition as I believe a person is quite capable of remembering her medical condition. As to the medical witnesses, they would have notes and reports on which they could rely. In my view, the Board’s determination that there was prejudice to the Minister falls outside the range of possible acceptable outcomes and was unreasonable.
As a result of my finding, the application for judicial review is allowed and the matter is referred back to a differently constituted panel or member of the Pension Appeals Board for redetermination.”
 Here, we are dealing with a delay of approximately seven months, after the time limit for doing so had expired. For the reasons expressed in Leblanc, I find that there is no prejudice to the Respondent if an extension of time were to be allowed. While this aspect of the test for allowing an extension of time is met, I turn to consider the other three criteria.
 The evidence does not satisfy me that there was a continuing intention to pursue an appeal between September 25, 2012 and approximately August 2013. While the Applicant may have learned of new information in April 2013, there is no evidence that he had turned his mind to appealing the decision of the Review Tribunal prior to April 2013. That is fully more than three months after the date he was required to file an application requesting leave. And, even after learning of the new information, the Applicant does not appear to have taken any steps to file an application, until the passage of another three months. It may be that by then, the Applicant turned his mind and intended to pursue an appeal, but there are no submissions from him in that regard.
 This feeds into the issue of whether there is a reasonable explanation for the delay. While I might be prepared to find that the Applicant was unaware that his 2006 tax return could be amended to explain the delay in filing the Application, there is a further delay of three months after April 2013. It may be that there is a reasonable explanation for this further delay of three months, but none has been offered.
 If I were to find that the Applicant was unaware that his 2006 tax return could be amended to account for the initial delay in filing the leave application, this would undermine any submission from the Applicant that he had a continuing intention throughout to pursue an appeal in this matter, as any intention would have arisen in April 2013, and not sooner.
 Lastly, the Applicant is also required to show that the matter discloses an arguable case. I will discuss this in the section below.
Application for leave
 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 set 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.
 I am required to determine whether any of the Applicant’s reasons fall within any of the grounds of appeal and whether any of them have a reasonable chance of success.
 The Applicant submits that as the legislation does not permit him to file a new application for disability benefits based on new information, he should necessarily be granted leave to appeal. He also submits that having a newly extended MQP date merits a determination or hearing as to whether he can now be found disabled. Neither of these two reasons falls within any of the grounds of appeal. If an applicant is to succeed in obtaining leave, he must point to an error or failing committed by the Review Tribunal.
 I can consider the Applicant’s third reason, as it falls into one of the grounds of appeal. Notwithstanding the fact that the Applicant appears to have agreed at the time of the hearing that his MQP is December 31, 1996, he submits that, in calculating his MQP to be 1996 rather than 2008, the Review Tribunal (1) failed to properly exercise its jurisdiction to find the right date, (2) erred in law in assessing the wrong MQP and (3) failed to properly consider the evidence in front of it.
 Subsection 42(2)(b) of the Canada Pension Plan sets out how the MQP is to be calculated. The calculation is based in part on when an applicant made valid contributions to the Canada Pension Plan. The Canada Pension Plan does not confer any discretion on the Review Tribunal or any other body for that matter to decide on any alternate dates. The Review Tribunal is bound by the Canada Pension Plan and was required to calculate the Applicant’s MQP based on the valid contributions he made to the Canada Pension Plan.
 The Applicant has not identified how the Review Tribunal might have erred in law in calculating his MQP. While the Review Tribunal did not set out how it calculated the Applicant’s MQP, it noted that the parties agreed and that it found his MQP to be December 31, 1996. It would have been of some assistance had the Applicant identified the error in law which the Review Tribunal might have made. For instance, if the Applicant contends that the Review Tribunal applied the incorrect section of the Canada Pension Plan, then he should have expressed this.
 It seems to me that the Applicant is of the position that the Review Tribunal miscalculated the MQP as it did not consider the Applicant’s earnings and contributions in 2006, which might then have extended his MQP. I would have considered this to be an erroneous finding of fact based on the evidence before it, rather than an error in law.
 However, for there to be some validity to this submission that the Review Tribunal failed to consider his earnings and contributions in 2006, the Applicant would have had to demonstrate that any contributions which might have been made in 2006 qualified as valid contributions to the Canada Pension Plan. (The Review Tribunal would have been required to verify this information against an updated Earnings History, which would necessarily have required an adjournment of the proceedings.) There was no or insufficient evidence before the Review Tribunal for it to determine whether any contributions the Applicant might have made in 2006 qualified as being valid.
 I recognize that the Applicant’s 2006 tax information has been amended since the hearing before the Review Tribunal, but this fact alone does not prove that there have been contributions to the Canada Pension Plan and that they qualify as being valid. In order for the contributions to qualify as being valid, his earnings must have exceeded the disability basic exemption (“DBE”) set for that year. The DBE for 2006 was set at $4,200. In other words, the Applicant was required to have had earnings exceeding this amount.
 From what I can determine, the documentary evidence before the Review Tribunal was that the Applicant resumed working in late July and continued working until roughly mid- or late August 2006, before ceasing work altogether in early September 5, 2006. (The Applicant advised in his Questionnaire for Disability Benefits that he had stopped working on September 1, 2006.) He had been working as an apprentice. In my view, this limited information alone would be insufficient to show that the Applicant made valid contributions to the Canada Pension Plan, or that his earnings for 2006 exceeded the DBE.
 While I assume that the earnings in 2006 were in the nature of employment earnings, if they were in fact self-employment earnings, subsection 30(5) of the Canada Pension Plan stipulates that there is a four year limitation period in which those contributions in respect of any earnings must be filed, otherwise the contributions are deemed to be zero. I raise this point in the narrow event that the Applicant’s earnings in 2006 were considered self-employment earnings.
 The Applicant also contends that the Review Tribunal failed to properly consider the evidence before it. The Federal Courts have previously addressed this submission, in other cases, that Review Tribunals or Pension Appeals Boards have failed to consider all of the evidence, and either gave too much or insufficient weight to some of the evidence. In Simpson v. Canada (Attorney General), 2012 FCA 82, the Applicant’s counsel identified a number of medical reports which she said that the Pension Appeals Board ignored, attached too much weight to, misunderstood, or misinterpreted. In dismissing the Applicant’s application for judicial review, the Court of Appeal held that,
“First, a tribunal need not refer in its reasons to each and every piece of evidence before it, but is presumed to have considered all the evidence. Second, assigning weight to evidence, whether oral or written, is the province of the trier of fact. Accordingly, a court hearing an appeal or an application for judicial review may not normally substitute its view of the probative value of evidence for that of the tribunal that made the impugned finding of fact. . .” (my emphasis)
 In following Simpson, it is open to a Review Tribunal to sift through the relevant facts, assess the quality of the evidence, determine what evidence, if any, it might choose to accept or disregard, and to decide on its weight. A Review Tribunal is permitted to consider the evidence before it and attach whatever weight, if any, it determines appropriate and to then come to a decision based on its interpretation and analysis of the evidence before it. Without an updated Earnings History showing valid earnings and contributions for 2006, the Review Tribunal simply could not find evidence of valid earnings and contributions for that year, such as to possibly extend the Applicant’s MQP.
 Based on the evidence before the Review Tribunal, I find no arguable ground that the Review Tribunal failed to exercise its jurisdiction or that it committed any errors in law.
 Despite the able submissions of the Applicant, the application to extend the time for filing and application for leave to appeal are refused.
- Date modified: