Minister of Employment and Social Development v. B. C.

Minister of Employment and Social Development v. B. C. Collection Canada Pension Plan (CPP) disability Decision date 2015-12-02 Neutral citation 2015 SSTAD 1390 Reference number AD-15-1128 Member Valerie Hazlett Parker Division Appeal Division Decision Application for leave to appeal granted Related decisions SST - Minister of Employment and Social Development v. B. C. - 2016 SSTADIS 468 - 2016-12-05 - Appeal Division Decision Content On this page Introduction Analysis Conclusion Appendix Introduction [1] The Respondent claimed that he was disabled as a result of a repetitive strain injury suffered at work. The Applicant denied his claim initially and after reconsideration. The Respondent 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 of Canada pursuant to the Jobs, Growth and Long-term Prosperity Act on April 1, 2013. The General Division held a hearing and on July 22, 2015 allowed the appeal, finding that the Respondent was disabled under the Canada Pension Plan. [2] The Applicant requested leave to appeal the General Division decision to the Appeal Division of the Tribunal. It argued that leave to appeal should be granted because the General Division decision contained an error of law, and the General Division based its decision on two erroneous findings of fact made in a perverse or capricious manner or without regard to the material before it. [3] The Respondent disagreed with the arguments presented by the Applicant. He submitted that the Applicant should not be permitted to complain about the General Division hearing as it chose not to attend, that many of its arguments for leave to appeal were based on facts taken out of context, and that the General Division Member did not err. 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 can be considered to grant leave to appeal a decision of the General Division (reproduced the Appendix to this decision). Accordingly I must decide if the Applicant has presented a ground of appeal that falls under section 58 of the Act and that may have a reasonable chance of success on appeal. [6] The General Division decision correctly stated the law as set out in the Inclima v. Canada (Attorney General), 2003 FCA 117 decision, that where there is evidence of work capacity a Canada Pension Plan disability pension claimant must show that efforts at obtaining and maintaining work were unsuccessful because of that health condition. It set out the evidence that was presented to the General Division that indicated that the Respondent had some capacity to work. The Applicant contended that the General Division did not, however apply this legal principle as it did not consider or analyse any evidence regarding what jobs the Respondent applied for or why he was not hired. It argued that this was an error of law, and leave to appeal should be granted on this basis. [7] The Respondent argued that the Applicant’s arguments in this regard are contradictory; for example the Applicant wrote that the Respondent did well in the functional restoration program, which was contradicted by the statement that he had not followed up on job leads. The Respondent contended that the General Division Member spent a lot of time reviewing and understanding the large volume of evidence that was before it and did not make any errors in doing so. [8] I appreciate that the General Division correctly set out the legal principle in the Inclima decision. The General Division may not have analysed any of the evidence before it, however, to determine if the Respondent was not able to obtain or maintain a job because of his health condition. This argument therefore points to an error in law in the decision. This is a ground of appeal that may have a reasonable chance of success on appeal. [9] I acknowledge that some of the information in the Applicant’s application requesting leave to appeal may seem contradictory. However, it was the evidence set out in the application that was contradictory, not the arguments put forward by the Applicant. Therefore, this would not preclude the granting of leave to appeal in this case. [10] The Applicant also argued that the General Division erred in its finding of fact that no doctor had made a definitive diagnosis for the Respondent. It pointed various medical reports which contained diagnoses of chronic pain disorder, and myofacial pain syndrome. It argued that while it is not the diagnosis of a condition but its effect on a claimant’s ability to work that must be determined, the General Division failed to consider these medical reports and this would have shed light on the Respondent’s pain and potential methods to deal with it. It submitted that the General Division therefore based its decision on an erroneous finding of fact that was made without regard to the material before it. [11] It is not necessary for the General Division decision to contain a reference to each and every piece of evidence that was presented. It is presumed to have considered all of the evidence (Simpson v. Canada (Attorney General), 2012 FCA 82). However, I accept that the decision should consider the significant evidence regarding causation and treatment of the medical conditions that are claimed to be disabling. In this case, not doing so may have resulted in the General Division decision being based on an erroneous finding of fact made without regard to the material before it. This ground of appeal may also have a reasonable chance of success on appeal. [12] The Applicant further argued that the General Division erred when it found as fact that the Respondent’s employer sent him home from work due to the medication he was taking. I acknowledge that the General Division decision, in paragraph 11, stated that the Appellant was sent home from work due to his medication as the employer considered him a danger to himself and others. This was a statement of the evidence that was presented. It was based on the Respondent’s testimony, which was different than what was reported in the psycho-vocational assessment dated August 2007. However, it does not appear to me that the General Division decision was based on this. Therefore, this is not a ground of appeal under section 58 of the Act and leave to appeal is not granted on this basis. [13] The Respondent submitted that reports written for WSIB are biased and should be regarded in that light. He stated that this was discussed at the General Division hearing. That may be so. It is not relevant to the issue before me at this time, which is whether the Applicant should be granted leave to appeal the General Division decision to the Appeal Division. [14] The Respondent also argued that the Applicant could have attended the hearing, and if it had done so, would have properly understood all of the evidence in the context in which it was presented. He contended that the Applicant is now seeking leave to appeal the decision to delay payment of the disability pension to him. [15] The Respondent is correct that the Applicant could have attended the hearing. It chose not to. It may be that it was in the Applicant’s best legal interest to have attended the hearing. However, non-attendance at the General Division hearing does not terminate a party’s legal right to request leave to appeal the General Division decision. Leave to appeal cannot be refused based on a party’s failure to attend a hearing. [16] Finally, the Respondent wrote that he wished to present further arguments but could not due to his poor health and time constraints. Conclusion [17] The Application is granted because the Applicant presented grounds of appeal that fall under section 58 of the Act and that may have a reasonable chance of success on appeal. [18] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case. 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.