The Estate of F. B. v. Minister of Employment and Social Development

The Estate of F. B. v. Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2018-09-11 Neutral citation 2018 SST 897 Reference number AD-18-233 Member Valerie Hazlett Parker Division Appeal Division Decision Appeal allowed Related decisions SST - The Estate of F. B. v. Minister of Employment and Social Development - 2019 SST 1753 - 2019-06-12 - General Division Decision Content On this page Decision Overview Conclusion Decision and reasons Decision [1] The appeal is allowed, and the matter is referred back to the General Division for reconsideration. Overview [2] F. B. completed high school and some college courses. He worked in construction for a number of years. He injured his back and his heel/ankle on the job. The Claimant applied for a Canada Pension Plan disability pension and asserted that he was disabled by a foot fracture, chronic lumbar pain, left ankle arthritis, and the loss of the tip of a finger. He passed away in 2017 after battling cancer. The Claimant’s estate (Claimant) continued the appeal on his behalf. [3] The Minister of Employment and Social Development (Minister) refused the application. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal on the basis of the documents that had been filed with it. The Claimant was granted leave to appeal because there was a reasonable chance of success on appeal since the General Division failed to observe a principle of natural justice when it decided the appeal without holding an oral hearing. [4] The Minister wrote to the Tribunal and stated that it agreed with the reasoning in the leave to appeal decision regarding the failure to observe a principle of natural justice and “that the appeal might be returned for a rehearing before the General Division.” [5] I held a pre-hearing conference call on this matter because it seemed that the Minister agreed that the appeal should be allowed. At the pre-hearing conference, the parties agreed that the appeal should be allowed and that the matter should be referred back to the General Division for reconsideration because of the failure to hold an oral hearing. They requested that I make an order in accordance with their agreement.Footnote 1 [6] Although the Claimant is deceased, his widow is able to testify and planned to testify at a hearing before the General Division. She was prevented from doing so because the General Division decided the appeal on the basis of the documents filed with the Tribunal. This prevented the Claimant from presenting his entire case to the Tribunal, which is a breach of the principle of natural justice that requires that all parties be given the opportunity to present their case. The appeal must be allowed on this basis. [7] The Department of Employment and Social Development Act sets out what remedies the Appeal Division can give when an appeal is allowed.Footnote 2 In this case it is appropriate that the appeal be referred back to the General Division for reconsideration. There is further evidence to be presented, and it is within the General Division’s mandate to receive and weigh evidence. Conclusion [8] The appeal is allowed, and the matter is referred back to the General Division for reconsideration. [9] The General Division is directed to hold an oral hearing. Method of proceeding: Submissions: On the record Steven Yormak, Counsel for the Appellant Suzanne Doucette, Counsel for the Respondent Footnotes Footnote 1 Social Security Tribunal Regulations s. 18 Footnote 2 Department of Employment and Social Development Act s. 59