B. 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:
- B. S. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- May 8, 2014
- Reference number:
- B. S. v. Minister of Human Resources and Skills Development, 2014 SSTAD 97
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
 The Applicant seeks leave to appeal the decision of the Review Tribunal issued on June 25, 2013. 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, 2011 ("MQP"). The Applicant filed an Application Requesting Leave to Appeal (the "Application") with the Appeal Division of the Social Security Tribunal (the "Tribunal") on September 17, 2013, within the time permitted under the Department of Employment and Social Development (DESD) Act.
 Does the 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 seeks leave to appeal on the grounds that he "suffers from a severe and prolonged physical disability". The Applicant also submits that the Review Tribunal erred in law in making its decision and that it based its decision on erroneous findings. He submits that while a formal diagnosis may not have emerged by December 2011, he certainly exhibited functional limitations by then. He also submits that the evidence before the Review Tribunal clearly established the onset of a severe and prolonged disability well before December 2011.
 The Applicant re-filed the documentary evidence that was before the Review Tribunal. The Applicant also made submissions regarding his disability. He provided a chronology of his medical and employment history.
 The Respondent has not filed any written submissions.
 The Applicant agrees that the test on whether to grant leave to appeal is whether there is an arguable case. The Applicant submits that as his Review Tribunal hearing was held prior to April 2013, "the hearing at the Social Security Tribunal is a hearing de novo and is based on the merit of the case and not on whether the Review Tribunal made an error of fact or of law".
 At paragraph 47 of his submissions, the Applicant cites Kerth v. Canada (Minister of Human Resources Development),  FCJ No. 1252 (FC) for the proposition that the proper test on an application for leave is,
…whether there is sufficient evidence wherein the Social Security Tribunal on a hearing de novo could find that the Applicant is disabled within the definition of the Canada Pension Plan. The test is not whether the Review Tribunal made an error, because that is not the function of an appeal which is run as a trial de novo. The test is whether there is sufficient evidence which if believed could result in a successful outcome.
 With respect, I do not take Kerth as entirely standing for the proposition submitted by the Applicant, other than that indeed, the leave to appeal proceeding does not entail a hearing of the merits of the matter (i.e. an assessment as to whether the applicant is disabled as defined by the CPP). Rather, it is a preliminary step to a hearing on the merits of the decision of the Review Tribunal. The Court said that the leave proceeding is "a first, and lower hurdle for the applicant to meet than that must be met on the hearing of the appeal on the merits".
 The Court did not extend itself to suggest that the test for a leave application is whether there is sufficient evidence of a medical disability which, if believed, could result in a successful outcome in a hearing de novo. Had that been part of the test, in my view, that would necessarily involve reviewing the medical evidence, as opposed to reviewing strictly the decision of the Review Tribunal.
 The jurisprudence indicates that in a leave application, I am not to decide the merits of the matter, but instead, am to determine whether a party can make a reasonable argument challenging the merits of the decision of the Review Tribunal. There is a fine distinction between the merits of the matter and the merits of the decision.
 In Attorney General of Canada v. Kermenides, 2009 FC 429, the Court held that,
 Notwithstanding that the Plan itself establishes no criteria for granting, or in this case, refusing leave, the jurisprudence establishes that the basis for consideration must be whether there is some arguable ground upon which the appeal "might" succeed; the member should not decide whether the application "could" succeed. The law was recently reviewed by O'Reilly J. of this Court in Canada (Attorney General) v. Pelland, October 16, 2008, 2008 FC 1164
(CanLII), 2008 FC 1164 where he summarized at paragraphs 8 and 9:
8 On a leave application, the PAB must determine whether there is some arguable ground on which the appeal might succeed. It should not decide whether the applicant could actually succeed.
9 These propositions are set out in a series of cases: Kurniewicz v. Canada (Minister of Manpower and Immigration), (1974) 6 N.R. 225 (F.C.A.); Kerth v. Canada (Minister of Human Resources Development  F.C.J. No. 1252; Martin v. Canada (Minister of Human Resources Development),  F.C.J. No. 1972; Callihoo v. Canada (Attorney General),  F.C.J. No. 612.
 The words set out in the reasons given for refusal to grant leave should not be reduced to a mantra. The member refusing leave should not be required to follow a strict formula or be tied strictly to words such as "some arguable ground" and not use words such as "no reasonable chance on appeal". The reasons provided should make it clear to the reader that the member, in arriving at the decision whether to refuse leave, was not deciding the merits of the matter itself but was determining whether a party could make some reasonable argument challenging the merits of the decision of the Review Tribunal.
 This addresses what I consider to be the central issue that arises from the Applicant's submissions, namely, what are the criteria to consider in determining whether there is an arguable case in a leave to appeal application, if not the merits of the matter? Or, put another way, how might a party challenge the merits of a decision of a Review Tribunal (or General Division), for the purposes of a leave application?
 Subsection 58(1) of the DESD Act sets out the criteria and the grounds of appeal upon which a party might challenge the merits of a decision of a Review Tribunal (or General Division):
- (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.
 Before I can grant leave to appeal, the DESD Act requires me to be satisfied that the Applicant's reasons for appeal fall within any of these grounds of appeal and whether they have a reasonable chance of success.
 What is critical to the Applicant's submission is the supposition that he is entitled to a hearing de novo on appeal. Subsection 58(1) of the DESD Act governs how the hearing before the Appeal Division is to proceed when leave has been granted. There is no entitlement to a hearing de novo as the grounds of appeal are limited to those considerations set out in subsection 58(1) of the DESD Act.
 In the Application form, the Applicant submits that the Review Tribunal committed an error in law and made erroneous findings of fact. While he employs the language set out in subsection 58(1) of the DESD Act, he does not go any further by identifying any specific errors in law or erroneous findings of fact which the Review Tribunal may have made. If I am to be able to meaningfully assess the leave application, an Applicant ought to, at the very least, set out the very errors which the Review Tribunal is alleged to have made, and which fall into the permitted grounds of appeal. He has not done so in this regard.
 The Applicant provided a detailed chronology and referred me to the medical evidence that was before the Review Tribunal. He submits that the evidence is compelling that he experienced functional limitations years prior to any formal diagnosis. These are not relevant considerations to a leave application, as they do not fall within any of the enumerated grounds of appeal. While a diagnosis may not have been made by the time of his MQP, there is no allegation that the Review Tribunal failed to turn its mind to and assess the Applicant's condition for the material time.
 For the reasons expressed above, I am not satisfied that the appeal has a reasonable chance of success and the Application is refused.
- Date modified: