H. J. v. Minister of Employment and Social Development

H. J. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2017-02-17 Neutral citation 2017 SSTADIS 50 Reference number AD-16-1343 Member Shu-Tai Cheng Division Appeal Division Decision Application for leave to appeal granted Decision reviewed by a court in Euverman v. Canada (Attorney General), 2018 FCA 164 Decision Content On this page Introduction Issues Law and analysis Conclusion Reasons and decision Introduction [1] On May 12, 2015, the General Division of the Social Security Tribunal of Canada (Tribunal) refused to allow an extension of time for the Applicant to appeal a reconsideration decision of the Respondent. In its decision, the General Division found that there was not a continuing intention to pursue the appeal and no reasonable explanation for the delay. [2] The Applicant filed an application for leave to appeal with the Appeal Division of the Tribunal on June 4, 2015. The Appeal Division refused leave to appeal on July 13, 2015. The Applicant sought judicial review of the July 13, 2015 decision. [3] On November 22, 2016, the Federal Court set aside the July 13, 2015 Appeal Division decision and referred the matter back to the Appeal Division for redetermination by a different member. Issues [4] Whether the appeal has a reasonable chance of success. [5] If the appeal is determined to have a reasonable chance of success, should a decision be rendered on the record or does the matter require a hearing? [6] Then the Appeal Division must decide whether to dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate, or confirm, rescind or vary the decision of the General Division in whole or in part. Law and analysis [7] Pursuant to paragraph 57(1)(b) of the Department of Employment and Social Development Act (DESD Act), an application must be made to the Appeal Division within 90 days after the day on which the decision appealed from was communicated to the appellant. [8] 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.” [9] 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.” [10] 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. [11] The Federal Court found, among other things, that: It was not reasonable for the Appeal Division to discount and discredit the letter of July 25, 2013 (from the Applicant’s counsel to the Tribunal); The letter of July 25, 2013 clearly shows that the Applicant intended to appeal the reconsideration decision well within the 90 day appeal period; and The Notice of Appeal to the General Division was filed within the one year maximum time limit to bring the appeal. Leave to Appeal [12] Given the finding of the Federal Court that the letter of July 25, 2013, clearly shows that the Applicant intended to appeal the reconsideration decision, I am satisfied that the appeal has a reasonable chance of success. Error of the General Division [13] This appeal proceeded on the basis of the record for the following reasons: The lack of complexity of the issue(s) under appeal; The decision of the Federal Court; and The requirements under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit. [14] The General Division found that there was not a continuing intention to pursue the appeal on the part of the Applicant. [15] However, the Federal Court found that the Applicant intended to appeal the reconsideration decision well within the 90 day appeal period. [16] Therefore, the General Division based its decision on a reviewable error. [17] Given the Federal Court decision, my review of the General Division decision and the appeal record, I find that the General Division erred as described in subsection 58(1) of the DESD Act. [18] Subsection 59(1) of the DESD Act sets out the powers of the Appeal Division. It states: The Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate, or confirm, rescind or vary the decision of the General Division in whole or in part. [19] Given all of the foregoing, I allow the appeal. The matter should be returned to the General Division for determination on the merits of the appeal. Conclusion [20] The application for leave to appeal is granted. [21] The appeal is allowed. The case will be referred back to the General Division of the Tribunal for reconsideration.