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

H. R. v. Minister of Employment and Social Development Collection Other Canada Pension Plan (CPP) Decision date 2019-06-21 Neutral citation 2019 SST 602 Reference number AD-19-271 Member Valerie Hazlett Parker Division Appeal Division Decision Extension of time to file an application refused Decision Content On this page Decision Overview Preliminary matter Issues Analysis Conclusion Decision and Reasons Decision [1] An extension of time to apply for leave to appeal is refused. Overview [2] H. R. (Applicant) and A. L. (Added Party) married in 1990 and divorced in 2014. They resided in the same home with their children until it was sold in April 2016. The Added Party began to receive Canada Pension Plan disability pension in 2002, and he also received a Disabled Contributor’s Child Benefit (DCCB) for their two children. [3] The Minister of Employment and Social Development decided that the Added Party was not entitled to receive the DCCB because he did not have custody of the children as of August 2015. The Added Party appealed this decision to the Tribunal. The Tribunal’s General Division allowed the appeal and decided that the Added Party was entitled to the DCCB because he and the Applicant lived in the same house with the children at this time. [4] The Applicant made an application to the Appeal Division, asking for leave to appeal this decision late. An extension of time to apply for leave to appeal is refused because the Applicant did not demonstrate that she had a continuing intention to appeal and the appeal does not have a reasonable chance of success. Preliminary matter [5] The Applicant and the Minister of Employment and Social Development attended a pre-hearing conference and discussed procedural matters. The Applicant was then granted additional time to provide written submissions to support her request for an extension of time. She did so. Issues [6] Was the application to the Appeal Division filed on time? [7] If not, should the time to file the application be extended? Analysis [8] The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operation. It states that an application to the Appeal Division must be made within 90 days of the General Division decision being communicated to the applicant.Footnote 1 This time can be extended, but not for more than one year.Footnote 2 Issue 1: Was the application late? [9] The General Division decision is dated December 14, 2018, and the letter enclosing it to the Applicant is dated the same day. The Social Security Tribunal Regulations say that a person is deemed to have received a document from the Tribunal ten days after it was mailed to them.Footnote 3 The Applicant is therefore deemed to have received the decision on December 24, 2018. The application to the Appeal Division was made on April 14, 2019. This is more than 90 days after the Applicant is deemed to have received the General Division decision. In the Application to the Appeal Division the Applicant also acknowledges that it is late. Therefore, I find that the application was made late. Issue 2: Should time be extended? [10] The Federal Court instructs that I must consider the following factors when deciding whether to extend time for an application to be made: [11] Is there a continuing intention to pursue the application; [12] Is there is a reasonable explanation for the delay; [13] Is there any prejudice to the other party in allowing the extension; and [14] Does the matter have a reasonable chance of success on appeal?Footnote 4 [15] The weight to be given to each of these factors may differ in each case, and in some cases, different factors will be relevant. The overriding consideration is that the interests of justice be served.Footnote 5 [16] In this case, the Applicant says that she had no reason for filing the application late except human error.Footnote 6 This is a reasonable explanation for the delay. [17] However, this statement does not explain whether she had a continuing intention to appeal. The Applicant also did not address the issue of prejudice to the other parties if an extension of time were granted. Although it is hard to imagine that the Minister of Employment and Social Development would be prejudiced given its resources and the short delay involved, I do not know whether the Added Party would be prejudiced. [18] I have placed the greatest weight on the fact that the appeal does not have a reasonable chance of success because this is also the legal test that must be met to be granted leave to appeal to the Appeal Division under the DESD Act.Footnote 7 The DESD Act states that there are only three grounds of appeal that I can consider when deciding whether the appeal has a reasonable chance of success. They are that the General Division failed to observe a principle of natural justice, made an error in law, or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.Footnote 8 [19] The Applicant argues that leave to appeal should be granted because she did not have access to the DCCB funds to pay household bills and expenses for the children while she and the Added Party resided in the same house after their separation. Because these bills were registered in her name, she was solely responsible for paying them when the house was sold, and the Added Party squandered money. [20] I am very sympathetic to this argument. However, it does not point to any error made by the General Division. I have reviewed the General Division decision and the written record. The General Division decision summarizes the evidence that was before it. It did not overlook or misconstrue any important information. The General Division applied the law to the facts before it to reach its decision. There is no suggestion that it erred in doing so, or that it failed to observe a principle of natural justice. [21] Therefore, the appeal does not have a reasonable chance of success. [22] It is not in the interests of justice to extend time to file an application that does not have a reasonable chance of success on its merits. Conclusion [23] An extension of time to apply for leave to appeal is therefore refused. Representative: H. R., Self-represented Footnotes Footnote 1 DESD Act s. 57(1)(b) Footnote 2 DESD Act s. 57(2) Footnote 3 Social Security Tribunal Regulations s. 19 Footnote 4 Canada (Minister of Human Resources Development) v Gatellaro, 2005 FC 883 Footnote 5 Canada (Attorney General) v Larkman, 2012 FCA 204 Footnote 6 AD1-1 Footnote 7 DESD Act s. 58(2) Footnote 8 DESD Act s. 58(1)