Leave to appeal decision of General Division only granted when proposed appeal had reasonable chance of success

Federal appeal | Pensions | Federal and provincial pension plans | Federal pension plans

Sixty-seven year old applicant retired high school teacher stopped working due to symptoms related to mental health issues, began seeing psychiatrist for depression and anxiety attacks, and was prescribed medications for number of years. New psychiatrist was of opinion that applicant was disabled, and was given Certificate of Incapacity. Applicant’s application for disability benefits under Canada Pension Plan (CPP) in 2011 was denied because he was found not to have severe and prolonged disability as at end of Minimum Qualifying Period and request for reconsideration was denied. In 2012, applicant’s application for disability benefits was denied because he was then in receipt of CPP retirement pension and was out of time to convert pension to disability benefits, and because he did not demonstrate that he was incapable of applying for earlier for benefits – Reconsideration request was denied. Applicant appealed both decisions to General Division of Social Security Tribunal, and both appeals were dismissed. Appeal Division refused both applications for leave to appeal because it was not satisfied that appeals had reasonable chance of success. Applicant then filed two applications for judicial review seeking review of decisions denying him leave to appeal which were both dismissed. Applicant appealed. Appeal dismissed. Leave to appeal decision of General Division may only be granted when applicant satisfied Appeal Division that proposed appeal had reasonable chance of success on one of three grounds set out in s. 58(1) of Department of Employment and Social Development Act. With respect to both 2011 and 2012 decisions, Appeal Division’s conclusions were open to it on record before it and were reasonable. Appeal Division reasonably concluded that proposed appeals had no reasonable chance of success. It followed that Federal Court did not err in dismissing applications for judicial review.

Maloshicky v. Canada (Attorney General) (2019), 2019 CarswellNat 961, 2019 FCA 59, Eleanor R. Dawson J.A., Wyman W. Webb J.A., and D.G. Near J.A. (F.C.A.); affirmed (2018), 2018 CarswellNat 205, 2018 CarswellNat 515, 2018 FC 51, 2018 CF 51, George R. Locke J. (F.C.).


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