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 2018-02-15 Neutral citation 2018 SST 159 Reference number AD-17-720 Member Jude Samson Division Appeal Division Decision Application for leave to appeal granted Decision Content On this page Decision Overview Issues Analysis Conclusion Decision and reasons Decision [1] The application for leave to appeal is granted. Overview [2] The Applicant, Mr. J. P., says that he has been unable to work since April 2014 because of an accident at work that resulted in impairments to his shoulder and cervical spine, along with chronic pain. He applied for a disability pension under the Canada Pension Plan, but the Minister of Employment and Social Development (Minister) denied his application and the Tribunal’s General Division dismissed an appeal of the Minister’s decision. The Applicant now requests leave to appeal the General Division’s decision saying that it was based on two erroneous findings of fact. Issues [3] Could the General Division have erred by ignoring relevant medical evidence on the question of the Applicant’s capacity to work? [4] While the application requesting leave to appeal raises another alleged error of fact, I will deal with it only briefly below.Footnote 1 Analysis Legal framework [5] The Tribunal’s General and Appeal Divisions are quite different. While the General Division considers and weighs all of the evidence to determine a person’s eligibility for benefits, the Appeal Division’s role is more limited. The Appeal Division focuses instead on whether the General Division might have committed one or more of the three possible errors (also known as grounds of appeal) that are set out in subsection 58(1) of the Department of Employment and Social Development Act (DESD Act). Generally speaking, did the General Division fail to observe a principle of natural justice, commit an error in law when making its decision, or base 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 Appeal Division is also different because appeals before it normally follow a two- step process: The first step is known as the leave to appeal stage. This means that an Appeal Division member must first give permission before an appeal can proceed. It is a preliminary step that is intended to filter out cases that have no reasonable chance of success.Footnote 2 The legal test that applicants need to meet at this stage is a low one: Is there any arguable ground upon which the proposed appeal might succeed?Footnote 3 If leave to appeal is granted, the file moves on to the second step, which is known as the merits stage. It is at the merits stage that appellants must show that it is more likely than not that the General Division committed at least one of the three possible errors listed in subsection 58(1) of the DESD Act. The expression “more likely than not” means that appellants have a higher legal test to meet at the second stage as compared to the first. [7] This appeal is now at the leave to appeal stage, meaning that the question I have asked myself is whether there is any arguable ground on which the proposed appeal might succeed. It is the Applicant who has the responsibility of showing that this legal test has been met.Footnote 4 Could the General Division have erred by ignoring relevant evidence? Yes. [8] The General Division need not refer to every piece of evidence that it has in front of it. Rather, it is presumed to have reviewed all of the evidence.Footnote 5 However, the General Division can fall into error if it fails to assess evidence that is sufficiently relevant or ignores important contradictions in the evidence.Footnote 6 [9] The Applicant argues that the General Division erred in fact when it concluded at paragraph 24 of its decision that there was “no evidence that the [Applicant] was unable to obtain and maintain employment due to his medical condition.” [10] In particular, the Applicant highlights two documents prepared by his family physician, Dr. Dufour, that were allegedly overlooked by the General Division: a medical report completed in July 2015 (GD2-65); and a letter dated November 3, 2016 (GD3-3). [11] Although Dr. Dufour was treating the Applicant at the time of his April 2014 accident, the General Division made no mention of these documents. Rather, there is a general statement at paragraph 15 of the decision that suggests that any medical evidence dated after the Applicant’s minimum qualifying period was not considered. [12] In the circumstances, I have concluded that the Applicant’s arguments raise an arguable ground on which the appeal might succeed. More specifically, the General Division might have based its decision on an erroneous finding of fact that it made without regard to the material before it. Leave to appeal is granted accordingly. [13] As mentioned above, the Applicant’s application requesting leave to appeal described two possible errors of fact. However, I can also see the Applicant’s second argument being characterized as an error of law, since it alleges that the Federal Court of Appeal required the General Division to consider the Applicant’s personal characteristics, but that it failed to do so. [14] Therefore, to supplement the alleged errors of fact raised by the Applicant, the parties are also invited to file submissions on the following question: Did the General Division fail to properly apply binding legal authorities, such as Villani v. Canada (Attorney General)Footnote 7 and Inclima v. Canada (Attorney General)Footnote 8? [15] Though I have confirmed that there is an arguable ground on which the appeal might succeed, nothing in this decision ought to be taken as prejudging the result of the appeal on its merits. Conclusion [16] The application for leave to appeal is granted. [17] As part of any additional submissions the parties might file, they could also address whether an oral hearing is required at the merits stage and, if so, the appropriate form of hearing (i.e. teleconference, videoconference, or in-person). Representatives: David Brannen, for the Applicant Footnotes Footnote 1 Mette v. Canada (Attorney General), 2016 FCA 276, at paragraph 15. Footnote 2 DESD Act, at subsection 58(2). Footnote 3 Osaj v. Canada (Attorney General), 2016 FC 115, at paragraph 12; Ingram v. Canada (Attorney General), 2017 FC 259, at paragraph 16. Footnote 4 Tracey v. Canada (Attorney General), 2015 FC 1300, at paragraph 31; Griffin v. Canada (Attorney General), 2016 FC 874, at paragraph 20. Footnote 5 Simpson v. Canada (Attorney General), 2012 FCA 82, at para. 10. Footnote 6 Lee Villeneuve v. Canada (Attorney General), 2013 FC 498, at para. 51; Canada (Minister of Human Resources Development) v. Quesnelle, 2003 FCA 92; Canada (Attorney General) v. Ryall, 2008 FCA 164. Footnote 7 2001 FCA 248 Footnote 8 2003 FCA 47.