The Estate of J. R. v. Minister of Employment and Social Development

The Estate of J. R. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2016-11-01 Neutral citation 2016 SSTGDIS 90 Reference number GP-15-4102 Member Jeffrey Steinberg Division General Division Decision Appeal allowed Decision Content On this page Introduction Issue The law Analysis Conclusion Reasons and decision Introduction [1] The Respondent denied the late Appellant’s application for benefits at the initial level and on January 27, 2015, denied the application at the reconsideration level. [2] On November 25, 2015, the Tribunal received an unsigned Notice of Appeal (the Notice) from the late Appellant without a copy of the reconsideration decision. [3] On December 2, 2015, the Tribunal sent the now late Appellant a letter. It stated her Notice (received by the Tribunal on November 30, 2015) was incomplete. The letter specified she needed to provide a copy of the reconsideration decision, the date that decision was communicated to her, the grounds for the appeal and a signed declaration. The letter went on to advise her that if the Tribunal received all of the missing information by January 2, 2016, it would accept her completed Notice as having been received on November 30, 2015. [4] On December 8, 2015, the late Appellant contacted the Tribunal by telephone seeking clarification regarding the Tribunal letter of December 2, 2015. She was provided the requested information and was advised to submit the missing information without delay. [5] On January 21, 2016, the late Appellant contacted the Tribunal to inquire about the status of her appeal. She was advised that her appeal was still incomplete. [6] On February 17, 2016, the Tribunal received a signed Notice from the late Appellant. It was backdated to November 25, 2015. The late Appellant indicated she received the reconsideration decision on January 27, 2015. She explained the appeal was filed later because she was waiting on a bone scan that took place in May 2015. She had to wait on the results, which required her to get further radiation treatment. She stated her appeal should be granted because her bone cancer had spread to various parts of her body, which results in breathing issues when engaging in too much physical exertion. She stated she was unable to walk and stand for long periods of time due to extreme pain in both hips, leg, spine and shoulder. She noted she was taking medication to ease the pain, which resulted in her having to spend 60 percent of her day in bed. [7] On February 19, 2016, the Tribunal sent the late Appellant a letter. It stated her appeal was still incomplete. In order to complete her Notice, the Tribunal still required a copy of the reconsideration decision. [8] On February 25, 2016, the late Appellant contacted the Tribunal and provided verbal authorization for her spouse to communicate with the Tribunal on her behalf. The Tribunal staff explained the appeal process and the reconsideration decision to her spouse. [9] On May 17, 2016 the late Appellant’s spouse sent the Tribunal correspondence by facsimile transmission. He stated the Appellant died on April 18, 2016 and enclosed a copy of the reconsideration decision. [10] On May 25, 2016, the Tribunal sent the Estate of the late Appellant a letter stating the Tribunal received the completed Notice, which appeared to have been filed more than 90 days after the Respondent’s decision was communicated. [11] On June 9, 2016, the Tribunal received the Respondent’s Submission. The Respondent noted that according to the Notice, the date the reconsideration decision was communicated to the late Appellant was January 27, 2015Footnote 1. They stated that even if an extra 10 days were added, the late Appellant would have received the reconsideration decision letter by February 6, 2015. Therefore, she had until May 7, 2015 (90 days later) to file her appeal with the Tribunal. The Respondent noted the Tribunal received the completed appeal from the reconsideration decision on May 25, 2016, 474 days following receipt of the reconsideration decision. They noted this date was beyond the legislative 90 days and more than one year as provided for in the Department of Employment And Social Development Act (DESD Act). The Respondent went on to refer to Section 25 of the Social Security Tribunal Regulations, which states that a person who does not file an appeal within the time limits set out in subsection 52(1) of the DESD Act, may request an extension of time by filing their appeal with a statement that sets out the reasons why the General Division should allow further time for bringing the appeal. The Respondent proceeded to determine whether an extension of time should be granted by applying the Gattellaro criteria as set out in the Federal Court case of Canada (Minister of Human Resources Development) v. Gattellaro, 2005, FC 833. Upon applying these criteria, the Respondent took the position that the extension of time should be allowed. It did not address the issue of the absolute one year bar to file an appeal under subsection 52(2) of the DESD Act. Issue [12] The Tribunal must decide whether to allow an extension of time for the Appellant to appeal pursuant to subsection 52(2) of the DESD Act. The law [13] Under subsection 52(1)(a) of the DESD Act, an appeal of a decision must be brought to the General Division in the prescribed form and manner and within (a) in the case of a decision made under the Employment Insurance Act, 30 days after the day on which it is communicated to the appellant; and (b) in any other case, 90 days after the day on which the decision is communicated to the appellant. [14] As noted above, according to subsection 52(2) of the DESD Act, in no case may an appeal be brought to the General Division of the Tribunal more than one year after the day on which the Respondent’s reconsideration decision was communicated to the late Appellant. [15] Section 23 of the Social Security Tribunal Regulations (the Regulations) states an appeal of a decision to the General Division is brought by filing the appeal at the address, facsimile number or email address – or in accordance with the electronic filing procedure – provided on its website. [16] Under subparagraph 24(1)(a) of the Regulations, an appeal must be in the form set out by the Tribunal on its website and contain a copy of the decision that was made under subsection 81(2) or (3) of the Canada Pension Plan. Analysis [17] The Tribunal finds that the Respondent’s reconsideration decision was communicated to the late Appellant on February 6, 2015, which is 10 mailing days after the January 27, 2015 date specified on the reconsideration decision. [18] The Tribunal finds that the late Appellant brought her completed appeal to the General Division of the Tribunal more than one year after the reconsideration decision was communicated to her. Although the Tribunal received an incomplete Notice after the 90 day filing period, the Tribunal only received the completed Notice on May 17, 2016, when the late Appellant’s surviving spouse filed a copy of the reconsideration decision with the Tribunal. [19] Despite the Respondent’s application of the Gattellaro criteria to the late Appellant’s most sympathetic circumstances and her Estates’ position that an extension of time permitting the filing of the late appeal should be allowed, the Tribunal notes that 52(2) of the DESD Act, operates as an absolute bar to allowing an appeal to be brought more than one year after the day on which the decision is communicated to an appellant. On the facts of this case, the completed appeal was brought more than one year after the day on which the decision was communicated to the late Appellant. [20] This leaves the question whether any other avenue is available to the Estate of the Appellant to pursue the late Appellants’ appeal on the merits by way of a late filed appeal. [21] The Tribunal takes some guidance from the decision of L.N. v. Minister of Employment and Social Development, 2015, SSTAD 538 (CanLII). This is a decision of the Appeal Division of the Tribunal in the context of a leave to appeal decision. Although not binding, it has persuasive value. In that case, the appellant filed her leave to appeal (the “leave Application”) with the Tribunal. Similar to the facts of this case, the Tribunal wrote to counsel for that appellant stating the leave application was incomplete until it had received all the information and documentation required under subsection 40 of the Regulations (setting out that the leave application must contain a copy of the decision in respect of which leave to appeal is being sought). A copy of the requested decision in respect of which leave to appeal was sought, was eventually filed with the Tribunal. However, this was beyond the one year time limitation to file a perfected leave application after the day on which the decision was communicated to the appellant (subsection 57(2) DESD Act). [22] The Appeal Division Member (AD Member) noted the only reason the timeliness of filing the leave Application was at issue was because the Appellant did not perfect her leave Application within 90 days after the day on which the decision of the Tribunal was communicated. She noted the Applicant filed the leave application within 90 days after the day the decision was communicated but did not meet the formal requirements by including a copy of the decision. [23] The AD Member noted that subparagraph 3(1)(b) of the Regulations empowered her only to the extent she might vary provisions of the Regulations or dispense a party from compliance. They did not permit her to vary provisions of the DESD Act or dispense a party from compliance with a provision of the DESD Act. However, she concluded that subparagraph 3(1)(b) of the Regulations effectively enabled her to relieve the Applicant from compliance with subsection 57(1) of the DESD Act (which stipulates that an application for leave to appeal must be made to the Appeal Division in the prescribed form and manner within 90 days after the decision is communicated) if she were to vary the provisions of the Regulations. She took the position she could vary subsection 40(1) of the Regulations by removing the requirement that the leave Application contain a copy of the decision in respect of which leave was being sought (assuming “special circumstances” existed). She noted that “special circumstances” should not be so loosely defined as to include oversight and negligence. However, she also stated: “However it seems that prejudice and a gross injustice could well result from counsel’s oversight, mistake and neglect. I do not think that an application should be so readily defeated by virtue of the fact than an applicants’ counsel failed to attach a copy of the decision in respect of which leave to appeal is being sought, particularly when the Appeal Division might have ready access to copies of those decisions. It would be contrary to the interests of justice that a leave application be so readily defeated, without any consideration of the merits of the matter. While it is desirable that an application preclude a copy of the decision in respect of which leave to appeal is being sought, its absence ought not to be the sole basis upon which a leave application should be rejected or dismissed, when that application has, in all other respects, seemingly complied with the requirements of the DESDA and the Regulations. [24] Although the AD Member noted that a plain reading and application of subsection 57(1) of the DESD Act and the applicable Regulations should lead her to dismiss the leave Application, she stated it would seem to lead to an “absurd and unjust” result that an application be dismissed because it either lacks a copy of the decision in respect of which leave to appeal is sought, or the applicant is late in producing a copy of that decision. She noted that such a decision would be particularly unjust when, on the facts of the case, the Respondent acknowledged that the Applicant was disabled. She also found that the Respondent’s consent to the merits of the Appellant’s application for disability benefits and acknowledgment the Applicant was disabled to be an exceptional circumstance. [25] By determining there were “special circumstances” on the particular facts of the case, and by varying the provisions under subparagraph 40(1)(a) of the Regulations (which states a copy of the decision in respect of which leave to appeal is being sought must be included) the AD Member concluded the Application for an extension of time for filing of a leave application under subsection 57(2) of DESD Act had been rendered moot. [26] Applying the principles set out in the L.N. case by analogy to the circumstances of this case, the Tribunal applies paragraph 3(1)(b) of the Regulations to vary subparagraph 24(1)(a) of the Regulations, i.e. to waive the requirement that the Appellant’s appeal to the Tribunal must contain a copy of the decision that was made under subsection 81(2) of the Canada Pension Plan, i.e. the Respondent’s reconsideration decision. [27] On the facts of this case, the special circumstances reside in the fact this appeal should not so readily be defeated by virtue of the fact the late Appellant (or subsequently her surviving spouse) failed to attach a copy of the decision in respect of which this appeal was filed, without any consideration of the merits of the matter. The Tribunal agrees it would seem to lead to an absurd and unjust result that this appeal is dismissed because the appeal was formally completed outside the one year time limitation, i.e., the Tribunal lacked a copy of the Respondent’s reconsideration decision or the Appellant was late in producing a copy of that decision. The Tribunal further notes the Appellant had very difficult medical circumstances with which to content, which renders the facts of this case unique. [28] However, variance of the Regulations to waive the requirement that the appeal include a copy of the Respondent’s reconsideration decision does not entirely resolve this matter. Even once the Tribunal has waived the requirement that the appeal contain a copy of the said decision in respect of which the appeal is brought, the appeal was still brought late, i.e., outside of the 90 day time limit. As noted above, the Tribunal finds the Respondent’s reconsideration decision was communicated to the late Appellant on February 6, 2015 (10 days after the January 27, 2015 date specified on the reconsideration decision). A completed appeal should have been filed by May 7, 2015. The late Appellant filed her initial incomplete appeal received by the Tribunal on December 2, 2015. Apart from the fact it did not contain the Respondent’s reconsideration decision, it was also unsigned. On February 17, 2016, the Tribunal received a signed Notice from the late Appellant setting out when she received the Respondent’s reconsideration decision and explaining why the appeal was filed late. The Tribunal finds (now that it has exempted the requirement that the appeal contain a copy of the Respondent’s reconsideration decision) that the appeal was completed on this date. It was still filed beyond the 90 day time limitation but within the one year absolute bar. Therefore, the Tribunal still has to consider the Gattellaro criteria to decide whether to grant or not an extension of time for the late filing of this appeal. 1. Continuing Intention to Pursue the Appeal [29] The Tribunal agrees with the Respondent’s submission that a continuing intention to seek to appeal exists if information indicates the applicant had the intent to request an appeal during the 90 day time period. The Respondent notes that on July 13, 2015, the Respondent received a copy of the Appellant’s bone scan performed on May 12, 2015. On November 10, 2015, about six months after her appeal period, the Respondent wrote to the late Appellant regarding a letter they received from her on November 3, 2015 requesting an appeal to the Tribunal. She was instructed to appeal directly to the Tribunal. [30] The Tribunal agrees with the Respondent’s observation that there is no indication the late Appellant demonstrated a continuing intention to pursue her appeal within the 90 day appeal period. 2. Matter discloses an arguable case [31] The Tribunal accepts the Respondent’s concession that the matter discloses an arguable case, noting the late Appellant provided a copy of a bone scan dated May 12, 2015 (received on July 13, 2015) revealing progression of bone metastatic. The Tribunal notes the MQP is December 31, 2015. As such, an arguable case exists. 3. Reasonable Explanation for the Delay [32] The Tribunal is satisfied there exists a reasonable explanation for the delay. Apart from the bone scan revealing progression of bone metastasis, in her November 2015 appeal (received on February 2016) the late Appellant explained her appeal was late because she was waiting on a bone scan which took place in May 2015. In February 2016, Dr. Krieger, oncologist, confirmed the late Appellant had metastatic breast cancer. In May 2016, the late Appellant’s surviving spouse confirmed the Appellant died in April 2016. [33] The Tribunal is satisfied the late Appellant’s medical condition reasonably considered, prevented or impeded her from acting with reasonable diligence in submitting a timely request. 4. No prejudice to the Minister [34] The Tribunal notes the Respondent’s concession it would be able to respond to an appeal and not be prejudiced if an extension were allowed. Conclusion [35] The Tribunal is satisfied that the preponderance of the Gattellaro criteria have been met and that it is in the interest of justice to allow this appeal to be decided on the merits. Therefore, the extension of time for the late filing of this appeal is allowed. Footnotes Footnote 1 The Tribunal notes that the reconsideration decision was dated January 27, 2015; therefore, it would not appear possible that the Appellant could have received the decision on the same date of the decision.