G. K. K. v. Minister of Employment and Social Development

G. K. K. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2014-09-22 Neutral citation 2014 SSTAD 251 Reference number AD-14-482 Member Valerie Hazlett Parker Division Appeal Division Decision Application for leave to appeal refused Decision Content On this page Decision Introduction Issue The law Submissions Analysis Conclusion Decision [1] The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal. Introduction [2] On May 28, 2014, the General Division of the Social Security Tribunal (the “Tribunal”) determined that a Canada Pension Plan disability pension was not payable. The Applicant filed an application for leave to appeal (the “Application”) with the Appeal Division of the Tribunal on August 27, 2014. Issue [3] The Tribunal must decide if the appeal has a reasonable chance of success. The law [4] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development (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”. [5] Subsection 58(1) of the DESD Act states that the only grounds of appeal are 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. [6] 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”. Submissions [7] The Applicant submitted that leave should be granted on the following basis: a) She set out the medical conditions she claimed rendered her disabled; b) She suffers from mental illness, and has no schedule for sleep or eating; and c) The General Division based its decision on an erroneous finding of fact without regard for the material before it. [8] The Respondent made no submissions. Analysis [9] 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 in order for leave to be granted: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC). [10] Furthermore, the Federal Court of Appeal has found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. Canada (Attorney General), 2010 FCA 63. [11] The Appellant argued that she should be granted leave to appeal based on the listing of physical and mental health conditions that she suffers from. All of this information was presented at the General Division hearing in this matter. With this argument she essentially asks this tribunal to reevaluate and reweigh the evidence that was before the General Division. This is the province of the trier of fact. The tribunal deciding whether to grant leave to appeal ought not to substitute its view of the persuasive value of the evidence for that of the tribunal who made the findings of fact - Simpson v. Canada (Attorney General), 2012 FCA 82. Therefore, this argument does not raise grounds of appeal that have a reasonable chance of success on appeal. [12] The Appellant also alleged that the General Division based its decision on an erroneous finding of fact without regard to the material before it. She did not, however, specify what this erroneous finding of fact was. Without this information, I cannot determine that there is a reasonable chance of success on appeal based on this argument. Conclusion [13] The Application is refused for as the Appellant has not satisfied me that he has a reasonable chance of success on appeal.