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

J. P. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2015-10-20 Neutral citation 2015 SSTAD 1233 Reference number AD-15-1080 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] The Applicant claimed that she was disabled by symptoms caused by a pulmonary embolism, including fibromyalgia and other limitations when she applied for a Canada Pension Plan disability pension. The Respondent denied her claim 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. The General Division held an in person hearing and on June 30, 2015 it dismissed the appeal. [2] The Applicant requested leave to appeal to the Appeal Division of the Tribunal. To support her request she set out her symptoms, including pain, nausea, dizziness, weakness, her diagnosed medical conditions and treatment. [3] The Respondent filed no submissions with respect to the application for leave to appeal. Analysis [4] 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. [5] 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 (the section is set out in the Appendix to this decision). Therefore, I must decide if the Applicant has presented a ground of appeal that falls within section 58 of the Act and that has a reasonable chance of success on appeal. [6] In the application for leave to appeal, the Applicant set out her medical conditions, limitations resulting from these conditions and some of the medication she takes as treatment. This evidence was before the General Division at the hearing, and considered by it in reaching the decision in this matter. She contended that the weight of the Tribunal did not focus on the results of her embolism. From this, I gather that the Applicant disagreed with how the General Division weighed the evidence before it to reach its decision. The Federal Court stated clearly in Misek v. Canada (Attorney General), 2012 FC 890, that it is not for the Member deciding whether to grant leave to appeal to reweigh the evidence or explore the merits of the General Division decision. Therefore leave to appeal cannot be granted on the basis of the Applicant’s disagreement with how the General Division weighed the evidence before it. [7] The Applicant did not suggest that the General Division made any erroneous finding of fact, any error in law or that the principles of natural justice were not observed. These are the only grounds of appeal that can be considered. Hence, although I am sympathetic to the Applicant’s circumstances, I am not able to grant her leave to appeal. Conclusion [8] The Application is refused as the Applicant did not present a ground of appeal that falls within section 58 of the Act. 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.