Canada Pension Plan (CPP) disability

Decision

The Tribunal grants leave to appeal to the Appeal Division of the Social Security Tribunal.

Introduction

[1] On May 16, 2014, the General Division of the Social Security Tribunal (the “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 August 15, 2014.

Issue

[2] The Tribunal must decide whether the appeal has a reasonable chance of success.

The law

[3] 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”.

[4] Subsection 58(1) of the DESD Act states that the only grounds of appeal are 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.

[5] 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

[6] The Applicant submitted in support of the Application that:

1. a) The General Division breached a principle of natural justice by not considering all of the evidence before it;
2. b) The General Division made erroneous findings of fact when it concluded from evidence of the Appellant’s ability to perform household chores that he had some capacity to work;
3. c) The General Division failed to appreciate the bias of assessments conducted by the Appellant’s insurer;
4. d) The General Division did not fully analyze the assessment reports; and
5. e) The General Division did not consider the Appellant’s personal circumstances, including his lack of formal education and borderline intelligence.

[7] The Respondent made no submissions.

Analysis

[8] 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).

[9] 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.

[10] The Appellant argued, first, that principles of natural justice were breached by the General Division because it did not consider all of the evidence before it. In Simpson v. Canada (Attorney General), 2012 FCA 82 the Federal Court of Appeal concluded that it is not necessary for the trier of fact to include in the decision each and every piece of evidence that was presented. The trier of fact is presumed to have considered all of the evidence. Therefore, this argument does not have a reasonable chance of success on appeal.

[11] I gather from the Application, however, that the Appellant seeks leave to appeal because the General Division decision did not explain why it relied on the conclusion reached in two assessments performed by the insurer, but not on the assessment performed by the expert retained by the Appellant. He also argued that the decision did not fully analyze these reports. The Federal Court of Appeal, in Doucette v. Canada (Minister of Human Resources Development) 2004 FCA 292 concluded that if, in the opinion of the appeal court, the deficiencies in the reasons [of the trier of fact] prevent meaningful appellant review of the correctness of the decision, then an error of law has been committed. In this case, the Appellant has pointed to deficiencies that may meet this legal test. The decision did not address why certain assessment reports were relied on and another was not. Therefore, this argument may have a reasonable chance of success on appeal.

[12] The Appellant also argued that the General Division erred by considering the Appellant’s ability to perform household tasks as an indicator of his capacity to work. The General Division decision considered the Appellant’s evidence about his ability to do various tasks as well as the other evidence that was presented. This argument does not have a reasonable chance of success on appeal.

[13] The Appellant further argued that the General Division did not appreciate the bias of the assessments that were presented. There was no indication that any argument regarding the bias of assessors was made at the General Division hearing, and no particulars of this bias in the Application. I am therefore unable to find that this argument may have a reasonable chance of success on appeal.

[14] Finally, the Appellant argued that leave to appeal should be granted because the General Division did not consider the Appellant’s age, intelligence and other personal factors. The decision did, however, refer to the Appellant’s personal circumstances in reaching the conclusion it did. Therefore this argument does not have a reasonable chance of success on appeal.

Conclusion

[15] The Application is granted for the reasons set out above.

[16] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.