G. G. v. Minister of Employment and Social Development

G. G. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2014-09-22 Neutral citation 2014 SSTAD 245 Reference number AD-13-741 Member Valerie Hazlett Parker Division Appeal Division Decision Application for leave to appeal granted Decision Content On this page Decision Introduction Issue The law Submissions Analysis Conclusion Decision [1] The Tribunal grants leave to appeal to the Appeal Division of the Social Security Tribunal. Introduction [2] On April 9, 2013, a Review Tribunal determined that a Canada Pension Plan disability pension was not payable. The Applicant filed an application for leave to appeal (the “Application”) with the Appeal Division of the Tribunal on June 19, 2013. Issue [3] The Tribunal must decide whether the appeal has a reasonable chance of success. The law [4] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development (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”. [5] 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. [6] The decision of the Review Tribunal is considered a decision of the General Division. [7] 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”. Submissions [8] The Applicant submitted that he should be granted leave to appeal because: a) The Review Tribunal did not appreciate the complexity of his medical condition; b) The Review Tribunal found that the Appellant exaggerated, which he did not do knowingly; c) The Review Tribunal found that the GAF score was not sufficient to render the Appellant disabled, which is not the purpose of a GAF score; and d) The Review Tribunal did not consider that the Appellant’s circumstances had changed when his disability was combined with his language difficulties, etc.; [9] The Respondent made no submissions. Analysis [10] Although a leave to appeal application is a first, and lower, hurdle to meet than the one that must be met on the hearing of the appeal on the merits, some arguable ground upon which the proposed appeal might succeed is needed in order for leave to be granted: Kerth v. Canada (Minister of Development), [1999] FCJ No. 1252 (FC). [11] Furthermore, the Federal Court of Appeal has found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. Canada (Attorney General), 2010 FCA 63. [12] The Applicant raised a number of arguments as grounds of appeal. First, he argued that the Review Tribunal did not fully appreciate the complexity of his medical situation. He did not set out any specifics of what was not appreciated. The Review Tribunal decision set out clearly the injuries suffered by the Appellant and his mental health diagnosis and treatment. Each of these conditions was considered by the Review Tribunal in reaching its decision. [13] The Applicant also argued that the Review Tribunal did not consider that his circumstances had changed in light of his disability along with his limitations in language and other factors. The Review Tribunal concluded that the Applicant’s limited English skills would not be as great an impediment in the Greater Toronto Area as they would be in a less multicultural community. The decision did not address the impact of the Appellant’s physical limitations, together with his limited English and other personal factors, on his ability to pursue a substantially gainful occupation. This argument has a reasonable chance of success on appeal. [14] The Applicant argued, further, that the Review Tribunal should not have relied on a GAF score to conclude that his mental illness was not severe. While the Review Tribunal decision considered the GAF score, it also considered the prognostic statements of the psychiatrist, and all of the other medical evidence. This argument asks me to retry the evidence to reach a different conclusion. In Gaudet v. Attorney General of Canada 2013 FCA 254 the Federal Court of Appeal held that a reviewing tribunal is not to retry the issues, but to assess whether the outcome was acceptable and defensible on the facts and the law. I find that the conclusion was acceptable in this case, so this argument does not have a reasonable chance of success on appeal. [15] In addition, the Applicant argued that leave to appeal should be granted because the Review Tribunal found him to have exaggerated, which he did unknowingly. This argument does not point to an error of fact made by the Review Tribunal in a capricious or perverse manner, or without regard to the evidence before it. Therefore it does not present an arguable case. Conclusion [16] The Application is granted. [17] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.