A. D. 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:
- A. D. and Minister of Human Resources and Skills Development
- Extension of time to file an application refused
- Decision date:
- May 9, 2014
- Reference number:
- A. D. v. Minister of Human Resources and Skills Development, 2014 SSTAD 98
 The Tribunal refuses the application to extend the time for filing and the application for leave to appeal to the Appeal Division of the Social Security Tribunal.
Background & history of proceedings
 The Applicant seeks leave to appeal the decision of the Review Tribunal issued on June 17, 2013. 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, 2009 (the “MQP”). The Applicant submitted a letter dated September 20, 2013 to the Appeal Division of the Social Security Tribunal (the “Tribunal”). Her letter, which was accepted as an application requesting leave to appeal (the “Application”), was received on October 3, 2013, 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?
 If so, does the appeal have a reasonable chance of success?
 According to subsection 57(2) of the Department of Employment and Social Development (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 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
 The Applicant explains that her Application was late as she mistakenly thought - due to “ill health and confusion” - that she had slightly more time to file an appeal. She states that she had a continued intention to pursue an appeal throughout. She explains that she has an arguable case as the Review Tribunal did not provide her with an opportunity to complete her testimony and she was “battered and badgered, humiliated, continually interrupted and reminded of the time constraints”. The Applicant is of the view that there is no prejudice, other than to one of the Review Tribunal members. For reasons that I explain below, possible prejudice to a Review Tribunal member is not a relevant consideration to a leave application. The Applicant indicated that she had proof to support her submissions, but did not provide any evidence of this.
 The Applicant submits that the Review Tribunal did not provide her with an opportunity to fully and freely give evidence or make submissions. In particular, she submits the following:
- 1. The Review Tribunal did not permit her to submit information.
- 2. The Chair of the Review Tribunal badgered, repeatedly interrupted her, twisted her words and summarized her evidence into something completely different. She felt unable to complete a sentence without being interrupted by the Chair, who would then proceed to change the subject. The Chair did not heed her requests to continue speaking.
- 3. The Review Tribunal continually reminded her of the time.
- 4. She was confused, unable to think straight, was emotional and in tears for the duration of the hearing.
- 5. She was asked questions by the representative for Human Resources and Skills Development Canada (“HRSDC”) in the lobby, prior to the hearing before the Review Tribunal.
- 6. The time she felt she should have been allowed was used up by the constant interruptions.
 The Applicant further submits that as she was subjected to meandering questions from the Review Tribunal, that she became muddled in her responses. In essence, while she does not state this outright, I understand her submission to be that the Review Tribunal failed to observe a principle of natural justice in providing her with a fair hearing.
 The Respondent has not filed any written submissions.
Late filing of application
 In Canada (Minister of Human Resources Development) v. Gattellaro, 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, and
- 4. There is no prejudice to the other party in allowing the extension.
 I am prepared to accept the Applicant’s assertions that she had a continuing intention to pursue the application, and that there is no prejudice to the Respondent in allowing the extension, as the delay involved is relatively brief.
Was there a reasonable explanation for the delay?
 I am not persuaded that there is a reasonable explanation for the delay. The Applicant has not provided any corroborating evidence of her “ill health and confusion” to substantiate that she was disoriented or confused as to the date by which she was required to file an appeal. I would need to see some evidence of cognitive impairment or deterioration of her medical status, particularly after seeing that immediately following the hearing on March 26, 2013, she wrote to the Office of the Commissioner of Review Tribunals (“OCRT”). In her letter spanning over 8 pages (of a 21-page facsimile), the Applicant set out numerous concerns about the hearing and also provided a comprehensive summary of her medical history (pages AD2-19 to AD2-37 of the hearing file). She also attached documentation regarding some of her medical conditions. She stated that it had taken her several hours to compile the materials. The materials were date-stamped received by the OCRT on March 28, 2013. Notwithstanding the fact that it may have taken the Applicant several hours to prepare and compile these submissions, she was clearly quite lucid and well-organized in her presentation. (The two-page letter of March 26, 2013, without the numerous enclosures, was also reproduced in the Application materials.)
 If the Applicant was able to prepare such comprehensive submissions sometime after the hearing on March 26, 2013, did her health and cognition decline sometime after she received the decision of the Review Tribunal? There simply is no supporting documentary evidence that this might have occurred, such as to account for any confusion or mistake on her part as to when she was required to file the appeal materials.
 Although I find that there is no reasonable explanation for the delay to warrant an extension of time for filing the Application, I will also address the issue of whether the matter discloses an arguable case. I will deal with this in the context of the leave application.
Leave application - is there an arguable case?
 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.
 I am required to satisfy myself that the Applicant’s reasons for appeal fall within any of the grounds of appeal and whether any of them have a reasonable chance of success, before leave can be granted.
 The Applicant submits that the Review Tribunal did not afford her a fair hearing, as the Review Tribunal did not provide her with an opportunity to fully and freely give evidence or make submissions. She further submits that she became muddled after being subjected to meandering questioning from one of the Review Tribunal members.
 Evidence before a Review Tribunal (or the General Division) can be presented in a number of ways. Evidence is not restricted to the oral testimony of an applicant and his witnesses. Evidence can also be documentary. The Applicant in this case certainly availed herself of that opportunity to make written submissions to the Review Tribunal.
 The record indicates that there was extensive medical documentation covering the period from September 2007 to June 2011.
 The record also shows that the Applicant had prepared a short, four-page letter dated December 2010 in which she documented her numerous restrictions and limitations, described some of the treatment and investigations she had undergone, and listed the names of some of her treating health caregivers, as well as the medications she was taking, including their frequency and dosages. (See pages AD2-136 to AD-139 of the hearing file).
 The Applicant also wrote to the OCRT days prior to the hearing. She submitted a 38-page facsimile on March 21, 2013. This facsimile consisted primarily of various medical articles on degenerative disease of the spine and lumbar spinal stenosis, diabetes and celiac disease. The Applicant also included notes she prepared documenting comments she made to her doctor, which he reportedly failed to record in his clinical records. (See pages AD2-189 to AD2-226).
 In a separate three-page undated facsimile, the Applicant again described some of the symptoms she was experiencing. She again listed the medications she was taking. (See pages AD2-227 to AD2-229).
 The hearing before the Review Tribunal took place on March 26, 2013. The OCRT had sent a letter on or about March 4, 2013 to each of the parties, reminding them of the hearing. The letter also specified that the hearing was scheduled for 1.5 hours.
 The Applicant submitted a detailed 17-page chronology of symptoms covering the period from 2008 to 2012 (pages AD2-308 to AD2-326). (The facsimile transmission page commences at page 19 and continues to page 38, but does not correspond with the 38-page facsimile sent on March 21, 2013). The Applicant also provided a detailed account of how each medical condition afflicted her. The document is date-stamped received by the OCRT on March 27, 2013.
 As noted above, the Applicant also submitted an 18-page letter dated March 26, 2013, date-stamped received by the OCRT on March 27, 2013. The Applicant set out her concerns about the hearing before the Review Tribunal and also provided a comprehensive summary of her medical history. She advises that she would have given evidence about her medical history at the hearing before the Review Tribunal, had she been provided with an opportunity to do so.
 The Applicant re-sent the same letter dated March 26, 2013 the following day, albeit some of the pages were ordered differently or were altogether missing. The Applicant included some additional information, including a short chronology, a description of how some of her medical conditions affected her, and an article on ataxia. This second letter was date-stamped received by the OCRT on March 28, 2013. (The Applicant may have submitted these documents prior to the OCRT date stamp, but it is difficult to determine when they may have been submitted by her, given that her facsimiles do not disclose the date or time of transmission.)
 It is unclear whether the Review Tribunal invited the parties to make additional written submissions following the hearing on March 26, 2013, or whether it took this additional information into account. Ordinarily, once a hearing concludes, the Review Tribunal does not consider additional, unsolicited evidence, as it would leave the other party without any opportunity to test or respond to that evidence.
 It is unclear also whether the Review Tribunal considered the documentation provided by the Applicant following the hearing, but I conclude that it did not, as there was no reference to these particular materials in its decision.
 There are no set rules of policy or procedure as to how a Review Tribunal is to conduct a hearing. I would not hamper how a Review Tribunal chooses to manage its hearings, nor intrude upon its discretion as to how it ought to conduct itself, provided that it ensures that each of the parties have a fair opportunity to present his or her case. The Courts have determined that where an applicant has been provided with a “reasonable opportunity to submit her case” that will suffice: Miller v. Attorney General of Canada, 2007 FCA 237. By this, I take that to mean that a Review Tribunal is under no obligation to give unlimited time and opportunity to a party to present his case. A party is not guaranteed an indefinite amount of time within which he can give evidence or make submissions. There must be some limits and time constraints, for instance, when there might be an overly loquacious witness, or to prevent against needless repetition, or to focus a party on the more germane and material issues. Provided that a party has been given some notice of the time available to him, he would be well counselled to expend any allocated time judiciously. While I am by no means suggesting that the Review Tribunal considered these factors in this particular case, I raise them, as there may well be another perspective, or the “flip side of the coin” to the Applicant’s assertions.
 The Application consists of the Applicant’s letters dated September 20, 2013, January 18, 2012, May 17, 2011 and two pages of her letter dated March 26, 2013. The Applicant’s letter dated May 17, 2011 was addressed to HRSDC and sought a reconsideration of the Minister’s initial decision denying her disability benefits. The Applicant’s letter dated January 18, 2012, sought an appeal to the Review Tribunal. In her letter dated March 26, 2013, the Applicant wrote that she was faxing the typed pages of what she had intended to say at the hearing.
 The Applicant has failed to indicate in her letter of March 26, 2013 what specific evidence, if any, was excluded by the Review Tribunal during the hearing and whether any such excluded evidence was in fact relevant to the issues. Consequently, this calls for a review of the hearing file before the Review Tribunal, to determine if indeed any of the evidence was excluded and if so, whether that evidence was at all relevant and whether it could have been received in another form by the Review Tribunal, other than by the Applicant’s oral testimony.
 There is some duplication and overlap in the Application materials. The Application duplicates some of the materials which were before the Review Tribunal. There are 10 pages which do not duplicate existing materials before the Review Tribunal. They include the following:
- a) The Applicant’s responses to submissions of the Respondent (pages AD2-23 to AD2-26),
- b) Description of symptoms in August 2011. The Applicant also identified symptoms which were either new or had deteriorated over time (page AD2-27) and,
- c) Frequently Asked Question (“FAQ”) sheet from the National Ataxia Foundation (pages AD2-33 to AD2-37).
 The Minister’s submissions dated March 5, 2013 were provided to the Applicant by letter dated March 8, 2013 from the OCRT. The Applicant submits that she did not have an adequate opportunity to address the Minister’s submissions and therefore prepared a written response following the hearing. However, some of the Minister’s submissions were not new and should not have caught the Applicant by surprise. For instance, the Applicant writes extensively about her experience with Dr. Khan, in response to the Minister’s submissions regarding Dr. Khan’s initial medical report dated October 6, 2010. However, these same submissions on behalf of the Minister appeared as early as March 15, 2011, and again on December 9, 2011, when the Minister denied the Applicant’s application for disability benefits and request for a reconsideration. In short, there had been adequate opportunity for the Applicant to address the Minister’s position and to have provided written submissions in advance of the hearing before the Review Tribunal. She had not been precluded from doing so. Indeed, she had written previously about her medical conditions and how they have affected her. While her responses to the Respondent’s submissions may have been expressed differently and were more detailed, I find that there is nothing substantively different from the materials which the Review Tribunal had before it. There was considerable material before the Review Tribunal, as outlined above.
 Similarly, the Applicant could have also provided written submissions regarding her symptoms in August 2011, though this would have resulted in some overlap and duplication of existing materials before the Review Tribunal.
 As for the FAQ sheet, I do not know how the Applicant intended to use this at the hearing before the Review Tribunal. It would have been unnecessary to read from the FAQ and she could have merely submitted it in advance of the hearing or had it marked as an exhibit, in the interest of time.
 Given that the evidence and submissions which the Applicant intended to make had the Review Tribunal permitted and had not interrupted her, largely overlaps and duplicates materials which the Review Tribunal had before it, or could have been filed in advance of the hearing, I find that there is no basis to the Applicant’s submissions that she had not been provided with a “reasonable opportunity” to present her case. I find that she has not made out an arguable case, for the purposes of determining her request for extending the time for filing her Application.
 While I have already determined that the Applicant has not made out an arguable case, I will address the other issues which she has raised in her Application:
- a) She was constantly interrupted by the Review Tribunal - It would have been helpful had the Applicant provided more information about the nature of these interruptions. For instance, did the Review Tribunal indicate to her that it had already received her evidence or submissions and that she did not need to raise them again, or did the Review Tribunal indicate that it could not hear her because she might have been soft-spoken, or that it found that her evidence and submissions were wholly irrelevant, or other? It may have been entirely justifiable for the Review Tribunal to interrupt the Applicant or other parties. One of the roles of a Review Tribunal is to ensure the smooth and orderly progression of a hearing, and oftentimes this will necessarily involve directing and focusing the parties. A Review Tribunal is also required to ensure that both parties are treated fairly. This involves providing each party with a fair and equal opportunity to be heard. While the Review Tribunal may have interrupted the Applicant, which she submits then impacted upon her ability to fully present her case, this returns us to the considerations above. What is the evidence or submissions which she says were lost as a result?
- b) She was continually reminded of the time by the Review Tribunal - The hearing was scheduled for 1.5 hours. This is not a significant amount of time. The Review Tribunal will often advise a party of the time remaining in the proceedings or in the time allocated to him. This serves as an aid, so that the party can use his remaining time judiciously. There is no right to an indefinite amount of time to present one’s case.
- c) She was confused, unable to think straight, emotional and in tears for the duration of the meeting. - The Applicant does not indicate whether she was left confused and in tears from the interruptions by the Review Tribunal, but I infer this from her letter. I recognize that proceedings before the Review Tribunal can be very stressful, to say the least, for most applicants, particularly as there is much at stake for them. But, there is to some extent an adversarial nature to the proceedings, given that one of the parties to the proceedings has an adverse interest to that of an applicant. Part of the function and role of a Review Tribunal is to collect evidence and assess credibility of witnesses so that ultimately it can make an informed decision. A Review Tribunal would necessarily want to focus on the facts or the evidence which it deems material, and this might result in questions to the parties and even interruptions, from time to time. And, sometimes this can seem to be disruptive and can unfortunately be upsetting. That unto itself is not a breach of the principles of procedural fairness.
- d) She was asked questions by the HRSDC representative - In order for the Applicant to show that there was a breach of the principles of natural justice or an error in law, she must demonstrate that the breach or error was committed by the Review Tribunal. She has not indicated how the Review Tribunal may have committed a breach or how it erred when she was approached by the Respondent’s representative. Likely the Review Tribunal was unaware that there had even been any communications. Even if it was aware that one of the parties had approached the other, there is no requirement that the Review Tribunal intervene and prohibit the parties from communicating with each other. While the Applicant may have felt it was inappropriate for the Respondent to ask questions of her prior to the hearing, the Review Tribunal did not have any jurisdiction over the parties at that time.
- e) The time she felt that she should have been allowed was used up by the constant interruptions from the Review Tribunal - the Applicant does not specify how much time she felt she required to present evidence and any submissions, how much time she actually took and what additional time she might have required. It is not unusual to exhaust one’s time allotment without having fully presented one’s case in the manner he wishes, but the fact that there was insufficient time as a result of numerous interruptions is unto itself not uncommon. There may be some proceedings in which there are no questions or interruptions, and other proceedings in which there are seemingly endless questions or interruptions. One can and should usually anticipate questions from the Review Tribunal, as clarification or further information may be required, and one should take this into account when making submissions and determining how much time is left for one`s own submissions.
- f) The Chair jumped from one date to another in asking her questions. She notes that another Review Tribunal asked the Chair to refrain from asking questions in this manner. Again, I would not interfere with the manner in which the Review Tribunal conducts hearings. There may well have been strategic reasons for the order of questions, or it may simply have been that the Chair had forgotten to ask a question earlier in the proceedings. A breach of procedural fairness does not arise from questions that jump back and forth over time.
 Given these considerations, I cannot conclude that the Applicant has raised a ground upon which the appeal might have a reasonable chance of success.
 In summary, I find that the Applicant has not met two of the four criteria in the test as to whether or not to extend the time for filing an application requesting leave. As such, I am not prepared to exercise my discretion to extend the time for filing. The request to extend the time for filing is refused, as is the Application requesting leave to appeal.
- Date modified: