Canada Pension Plan (CPP) disability

Decision

[1] The application for leave to appeal is refused.

Introduction

[2] By a decision issued June 5, 2013, a Review Tribunal determined that the Applicant was not entitled to a Canada Pension Plan, (CPP), and disability pension. In its decision the Review Tribunal concluded that as of his Minimum Qualifying Period, (MQP) date of December 31, 2011, the Applicant did not suffer from a severe disability that meets the definition of, contained in CPP ss. 42(2)(a).

Grounds of the appeal

[3] The Applicant seeks Leave to Appeal this decision, (the “Application”). Through his Counsel, he submits that the Review Tribunal made a number of errors in its assessment of whether his disability is severe and prolonged.

[4] The Social Security Tribunal, (“the SST”) received the Application on August 27, 2013. Counsel for the Applicant put forward the following as grounds of the Application:

1. The Review Tribunal failed to have regard to the material and evidence before it, to wit the long-standing severe and worsening back and leg pain (sciatica).
2. The Review Tribunal failed to appreciate the Applicant’s efforts to return to work. [Counsel for the Applicant takes exception to the Review Tribunal’s use of the word “reward” at paragraph 23(first bullet) of his submissions.]
3. The Review Tribunal accepted the Applicant’s testimony/evidence (about his pain) and thus accepted his levels of pain.

[5] Essentially, the Applicant disagrees with the conclusions that the Review Tribunal came to when it assessed whether his disability was severe and prolonged.

Issue

[6] Does the appeal have a reasonable chance of success?

The law

[7] The applicable statutory provisions governing the grant of Leave are ss. 56(1), 58(1), 58(2) and 58(3) of the Department of Employment and Social Development Act (DESD Act). Ss. 56(1) provides, “an appeal to the Appeal Division may only be brought if leave to appeal is granted” while ss. 58(3) mandates that the Appeal Division must either “grant or refuse leave to appeal.” Clearly, there is no automatic right of appeal. An Applicant must first seek and obtain leave to bring his or her appeal to the Appeal Division, which must either grant or refuse leave.

[8] Ss 58(2) of the DESD Act sets out the applicable test for granting leave and provides that “leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[9] Ss 58(1) of the DESD Act sets out the grounds of appeal as being limited to the following:

1. (a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. (b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. (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.

[10] On an Application for Leave to Appeal the hurdle that an Applicant must meet is a first, and lower, hurdle than that which must be met on the hearing of the appeal on the merits. However, to be successful, the Applicant must make out some arguable case^{Footnote 1} or show some arguable ground upon which the proposed appeal might succeed.

[11] In St-Louis^{Footnote 2}, Mosley, J. opined that the test for granting a leave application is now well settled. Relying on Calihoo^{Footnote 3}, Moseley, J. reiterated that the test is “whether there is some arguable ground on which the appeal might succeed.” He also reinforced the stricture that on a Leave Application, the PAB [now Appeal Division of the SST] should not decide whether the Applicant could actually succeed.

[12] For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.

Analysis

The Review Tribunal failed to have regard to the material and evidence before it.

[13] The Tribunal finds that this allegation is not supported. On examining the decision it is clear that the Review Tribunal did turn its mind to the whole of the evidence that was before it.

[14] The Tribunal finds support for its position in paragraph 30 of the decision, where the Review tribunal states that it “accepted the evidence of the Appellant and that of his medical practitioners.” In the Tribunal’s view this could only mean that the Review Tribunal did consider the totality of the evidence before it. What Counsel for the Applicant seems to be implying is that on the evidence before it the Review Tribunal ought to have come to a different conclusion; one which favoured the Applicant. However, it is clear that the Review Tribunal reached its conclusion fully aware of the fact that the Applicant “has had a serious back condition”.

The Review Tribunal failed to appreciate the Applicant’s efforts to return to work.

[15] Counsel for the Applicant submits that Leave should be granted because the Review Tribunal failed to appreciate the Applicant’s efforts to return to work. Again, the Tribunal finds that this allegation is not made out. An examination of the decision shows that the Review Tribunal did turn its attention to the Applicant’s efforts to return to work, noting that he successfully completed a course as a computer network engineer and was, in fact, able to secure employment in this field. The Review Tribunal assessed the Applicant’s efforts to return to work in the context of his retraining efforts and subsequent experience in the workforce. In the view of the Tribunal, in all the circumstances of the case, it was open to the Review Tribunal to find that the Applicant did retain capacity for work.

[16] With respect to the Review Tribunal’s use of the word “reward;” it is clear that the term is used in the context of a submission made by the Applicant’s counsel. It may or may not be a literal restatement of what Counsel said in submissions, however, the Tribunal finds that little turns on the use of the word as the Review Tribunal did not refer to the concept of “reward” in its analysis.

The Review Tribunal accepted the Applicant’s testimony/evidence (about his pain) and thus accepted his levels of pain.

[17] The Tribunal is not persuaded of this assertion. In the Tribunal’s view, it does not follow, ipso facto, that accepting the evidence of the Applicant’s medical conditions must automatically lead to the conclusion that the Applicant is disabled within the meaning of CPP ss. 42(2)(a). The Review Tribunal states the following at paragraph 30 of its decision:

“The Tribunal accepted the evidence of the Appellant and that of his medical practitioners. It was accepted that the Appellant has had a serious back condition and that he required extensive surgery to attempt correction of the condition. The Tribunal accepted that the Appellant does and will continue to have limitations as a result of the condition.”

[18] The statement must be looked at in its entire context. When this is done, it becomes clear that it is no more than an acknowledgment by the Review Tribunal that the Applicant suffers from a serious back condition; has had surgery to correct the condition and will continue to have limitations as a result of his condition.

[19] It is clear that the Review Tribunal examined the medical evidence and testimony and considered the Applicant’s personal circumstances, including the fact of his medical condition, his retraining efforts and the difficulty he experienced in obtaining and maintaining employment in the computer network engineering field in the location where he lives.

[20] Even where a Tribunal accepts that an Applicant has a disability, it must still find that the disability rises to the level that can be described as “severe” and “prolonged” within the meaning of the CPP [see Canada (Minister of Human Resources Development) v. Angheloni, 2003 FCA 248; also Gorgiev v. Canada (Minister of Human Resources Development), 2005 FCA linking “severe” to a determination of whether the claimant is able to perform any substantially gainful employment and not simply to the diagnosis.]

[21] Taking all of the above into consideration, the Tribunal is not satisfied that the appeal would have a reasonable chance of success.

Conclusion

[22] Leave to Appeal is refused.