Getting New Evidence Admitted at Appeal stage


#1

Hello - I was recently approved to appeal the SST decision. They keep telling me I cannot submit new evidence. It is my understanding from the cases of Law I have read that if the evidence was not Discoverable and is Material it can be admitted… or perhaps I could get a ruling from them on it. It is an MRI that proves that the CT scan they have from within the MQP time (already saying my condition is severe) is pressing on my spinal cord. A Neurologist immediately called me on getting it and made a next day appt. with a Neurosurgeon who wants to operate, soon. I have basically proven with this that I am in SEVERE pain. Yet they say not admissable.even after I sent them this:

1.) As per Belos v. MHRD, 2011:
…the proper legal test to be applied to “new facts” applications under subsection 84(2) of the Plan. Under this legal test, applicants must show two things:

(1) Non-discoverability. The information must not have been discoverable, with reasonable diligence, at the time of the earlier matter.

(2) Materiality. The information must be material in the sense that it could reasonably be expected to have affected the outcomeuou of the earlier matter.

(See Gaudet v. Canada (Attorney General), 2010 FCA 59 at paragraph 3; Kent v. Canada(Attorney General), 2004 FCA 420 at paragraph 34.)

I am stumped. I sent articles from newspapers on the wait times for MRIs in BC, two plus years for awhile… and they directly in the SST decision said that I did not have spinal compression… this proves I do… it is MATERIAL.

Does anyone have any suggestions. I would consider spending some of my last monies on a lawyer and may start calling tomorrow. (my US disability - I worked down there - went right through and I got a nice back pay cheque… almost gone and so will be the house). You have to be a lawyer in Canada and I am an architect… why the terrible neck… over drafting boards for long hours… but God I loved it.

I have until SEPTEMBER 21st now to get in any final arguments.
Thanks for any help.
Marie


#2

This is also to add… from Marie above (me)… I have been arguing this with them for seven years now… I think there would be some back pay involved if I ever get it.

Marie


#3

Retroactive payments go 12 month back from the day they received your initial application. Plus for the months that you were waiting for their decision. If I am not mistaken you may receive 12 month + 7 years = 8 years of payments :astonished:

But did you work during those 7 years? Or were you completely disabled?


#4

You can use the Application to Rescind or Amend form to apply to the General Division and ask that it review its decision only if new facts come to light that were in existence but were not known before the hearing or before the decision was made. This application can be made only once and must be submitted within one year of the decision being made.”

Is your MPQ date up–can you just start over?


#5

My MPQ date was up in 2014… my accident was in 2010 that started this…
long story… many operations… but it was all caused by the way I was
born actually… hip replacement for hip displaysia broke my femur into
pieces as it got an infection… I was in a wheelchair for a very long time
and it wrecked my already twisted at birth spine… just could not keep fit
in the wheelchair… so NO. and I asked this question back in 2014…
should I start over. They said no… I shouldn,t.

I need to review more cases tomorrow, see if I can figure this out and
start to call lawyers… only have two weeks now, just got their reply last
week to not send new evidence. I keep sending it… as to my mind this
was not discoverable… but there… within my MQP… but waiting for the
MRI.

They had a CT scan that says in three places my condition is severe at
three levels, and close to it at the others… they just glossed over it…
never mentioned the severe portion. It has been pressing on my spinal cord
for a long time… just took an MRI to see it.

It makes no sense and it is certainly not just.

Marie

Nola Marie Tanasiuk
We are Collaboration
604-436-1848
BA, BEDS, BArch,

  • Architect AIBC (affiliate)*

#6

This is a good resource for you

Sometimes you discover new evidence that helps your case after the SST (either the General Division or
the Appeal Division) has already made a decision. In these cases, you can apply to rescind or amend the
decision. Often this is referred to as “reopening” the decision. If the General Division made the
decision you want to reopen, you direct your application to the General Division. If the Appeal Division
made the decision you want to reopen, you direct your application to the Appeal Division.
A. The Deadline to Apply
You must apply to reopen a decision within one year of the day the decision was communicated to you.
You may only apply to reopen a particular decision once. Also keep in mind that applying to reopen a
decision does not stop the deadline for filing an appeal. For example, if you apply to reopen a General
Division decision based on new facts and your application is denied, you will be out of time to appeal
that same decision if more than 90 days have passed since it was communicated to you. In some cases,
it may be possible to file an appeal with the Appeal Division and an application to reopen with the
General Division at the same time. These cases get very complicated, so if you are unsure what to do,
you should try to get legal advice.
B. The Application to Reopen
You can apply to reopen a decision by filling out the Application to Rescind or Amend (Reopen on New
Facts) form, which is available on the SST’s website:
http://www.servicecanada.gc.ca/eng/common/sst-tss/forms-formulaires/SST-ATROA.pdf
As with all forms, you must make sure that all the required information is filled out or it will not be
accepted. You must attach a copy of the decision you are trying to reopen. Once you have completed
the form, you can mail or fax it to the SST. Contact information for the SST is listed on the form. As
always it is a good idea to keep a copy of your application.