The Estate of D. M. v. Minister of Employment and Social Development

The Estate of D. M. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2015-11-16 Neutral citation 2015 SSTAD 1330 Reference number AD-15-1192 Member Valerie Hazlett Parker Division Appeal Division Decision Application for leave to appeal refused Decision Content On this page Introduction Analysis Conclusion Appendix Introduction [1] Mr. D. M claimed that he was disabled by chronic pain and other injuries that resulted from a motor vehicle accident when he applied for a Canada Pension Plan disability pension. The Respondent denied his claim. He appealed this decision ultimately to the Federal court, which dismissed this appeal. After his death, his claim was continued by his estate, which became the Applicant. The Applicant applied to have the Respondent’s decision to deny his disability claim re-opened on the basis of new facts. The Respondent denied this request initially and after reconsideration. The Applicant appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals. The appeal was transferred to the General Division of the Social Security Tribunal pursuant to the Jobs, Growth and Long-term Prosperity Act in April 2013. The General Division dismissed the appeal on the basis of the written record on July 21, 2015. [2] The Applicant requested leave to appeal the General Division decision to the Appeal Division. This application was filed with the Tribunal on November 2, 2015 which appeared to be after the time to do so had expired. The Applicant explained why it was filed late. Regarding the merits of the application requesting leave to appeal the Applicant argued that he was disabled, and included a detailed medical chronology. [3] The Respondent filed no submissions. Analysis [4] First, the application was filed less than one week after the time to do so had expired. The Applicant’s Executor explained that she had tried to obtain legal representation for the appeal, then assistance from her Member of Parliament. It was because of miscommunication and misunderstanding that she did not realize that the Member of Parliament could not assist her until just a few days prior to the application being filed with the Tribunal. Under these circumstances I find that it is in the interests of justice to extend the time to permit the filing of the application requesting leave to appeal. [5] In order to be granted leave to appeal, the Applicant must present some arguable ground upon which the proposed appeal might succeed: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC). The Federal Court of Appeal has also found that an arguable case at law is akin to whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, Fancy v. v. Canada (Attorney General), 2010 FCA 63. [6] The Department of Employment and Social Development Act governs the operation of this Tribunal. Section 58 of the Act sets out the only grounds of appeal that may be considered to grant leave to appeal a decision of the General Division (see the Appendix to this decision). Accordingly I must decide if the Applicant has presented a ground of appeal that falls within section 58 of the Act and that may have a reasonable chance of success on appeal. [7] The Applicant included a detailed chronology of medical complaints and treatment with the application. Section 58 of the Act sets out the only grounds of appeal that can be considered. The presentation of new or additional evidence is not a ground of appeal under the Act. Leave to appeal cannot be granted on the basis of this information. [8] The Applicant argued that he had been told by a number of doctors that he was disabled and should not return to work. This may be so. However, the legal test to be found disabled under the Canada Pension Plan is specific, and is a hard legal test to meet and may be different than what doctors referred to as disabled. The General Division correctly set out what this legal test is in its decision. The General Division decision also correctly set out the legal test that must be met to have a decision re-opened on the basis of new facts. It applied this legal test to the evidence presented. The Applicant did not suggest that it made any error in identifying this test, or in applying it to the evidence before it. Therefore, this argument is not a ground of appeal that falls within section 58 of the Act. [9] The Applicant also suggested that the morphine that was taken to control pain may have contributed to his death. While this may have been true, it is not relevant to the issues before the Appeal Division, which is to decide if the General Division erred in law, based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it, or did not observe the principles of natural justice. Leave to appeal cannot be granted on the basis of this argument. [10] Finally, the Applicant asked that the Tribunal not dismiss his pain and suffering. I do not do so. I have great sympathy for the Applicant and the circumstances of this case. Despite this, leave to appeal to the Appeal Division cannot be granted on the basis of hardship or a claimant’s extenuating personal circumstances. Conclusion [11] The time for filing the application requesting leave to appeal is extended for the reasons set out above. [12] The Applicant has not presented any grounds of appeal that fall within section 58 of the Act. Leave to appeal is therefore refused. Appendix Department of Employment and Social Development Act 58. (1) The only grounds of appeal are that (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. 58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.