Canada Pension Plan (CPP) disability

Decision

[1] The Tribunal refuses leave to appeal.

Background

[2] The Applicant seeks leave to appeal the decision of a Review Tribunal issued on July 14, 2013, which found that, as of his Minimum Qualifying Period, (“MQP”), date of December 31, 2011, the Applicant was not disabled within the meaning of the Canada Pension Plan (“CPP”). Therefore, a Canada Pension Plan disability pension was not payable to the Applicant.

[3] Counsel for the Applicant has filed an Application for Leave to Appeal the decision of the Review Tribunal, (“the Application”).  The Social Security Tribunal (“the Tribunal”) received the incomplete Application on July 4, 2013. On November 09, 2013 the Applicant, having been notified by the Tribunal that the Application was incomplete, perfected it by filing a copy of the Review Tribunal decision.

Grounds of the application

[4] The following are put forward as the grounds of the Application:

1. 1) The Review Tribunal failed to consider the real world context of the Applicant as required by Villani.
2. 2) The Review Tribunal demonstrated bias in its assessment of the Applicant’s ability to obtain employment.

Issue

[5] The issue which the Tribunal must decide is whether or not the Applicant’s appeal has a reasonable chance of success?

The law

[6] 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.

[7] 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”.

[8] On an Application for leave to appeal the hurdle that an Applicant must meet is a first, and lower one 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.  In St-Louis^{Footnote 2}, Mosley, J. stated that the test for granting a leave application is now well settled. Relying on Calihoo,^{Footnote 3} he reiterated that the test is “whether there is some arguable ground on which the appeal might succeed.” He also cautioned against deciding, on a leave application, whether or not the appeal would succeed.

[9] Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:

1. The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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] For our purposes, the decision of the Review Tribunal is considered to be a decision of the General Division.

Analysis

a) Did the Review Tribunal fail to consider the real world context of the Applicant as required by Villani?

[11] Counsel for the Applicant contends that the Review Tribunal failed to consider the real world context when it concluded the Applicant did not have a disability that was “severe and prolonged” as defined by paragraph 42(2)(a) of the CPP.

[12] Counsel for the Applicant states his case in the following terms, “They (the Review Tribunal) noted that the Applicant has little education, has little facility in English, except at a rudimentary level, cannot read and write in English, has no transferable skills, and no experience outside of strenuous physical labour.  There is no work that he is capable of performing on a remunerative basis. He has not been in school of any sort since the age of 14, and it is highly unlikely that he could ever succeed at training. The Applicant has been followed by Dr. Schacter, neurosurgeon, who supports his application. He has also developed a severe depressive disorder and has been under the care of Dr. Tozman, who also supports his application.”

[13] The medical reports of Dr. Schacter and Dr. Tozman were before the Review Tribunal and it is clear the Review Tribunal considered their opinions of the Applicant’s medical conditions.  Dr. Schacter is the Applicant’s family doctor and at paragraphs 20 to 23 and 27, the Review Tribunal summarized his medical reports and treatment prognoses.  There appears to be no suggestion that the Applicant was unable to work until March 2013 when Dr. Schacter reached this conclusion.

[14] While in March 2013, Dr. Schacter arrives at the conclusion that the Applicant has a disability that is severe and prolonged, this is some 15 months after the end of the MQP.  The Review Tribunal notes that Dr. Schacter saw the Applicant on December 2, 2011 “for a severe increase in back pain 10 days earlier” nonetheless, even then Dr. Schacter did not find the Applicant’s disability severe and prolonged.

[15] The Review Tribunal also noted the involvement of Dr. Tozman with the Applicant. This includes Dr. Schacter’s medical report of December 2, 2011, in which he noted that the Applicant was significantly depressed and was being followed by Dr. Tozman.^{Footnote 4} By March 2, 2012, Dr. Schacter reported the Applicant was seeing Dr. Tozman on a monthly basis and going to group sessions twice weekly.^{Footnote 5}

[16] With respect to Dr. Tozman’s treatment of the Applicant, the Review Tribunal notes at paragraph 25 that Dr. Tozman states he saw the Applicant for the first time on October 18, 2011. In October 2012, Dr. Tozman concludes that the Applicant’s prognosis for return to any type of work was poor.  The Review Tribunal records show Dr. Tozman found the Applicant had a Global Assessment of Functioning score of 50, indicating difficulties with functioning.

[17] It is clear from the Review Tribunal analysis that its main focus was on the Applicant’s retained work capacity and the lack of effort on the part of the Applicant to find alternative work prior to the MQP.  It is also clear that, in reality, Counsel for the Applicant is challenging how the Review Tribunal weighed the evidence concerning the Applicant’s education, work and life experience.  It cannot be overstated that he disagrees with the conclusions of the Review Tribunal.  The position of Counsel for the Applicant is that the Applicant cannot perform any substantially gainful employment.  The Tribunal finds that while this may well be the case now, the Review Tribunal’s conclusions were entirely reasonable given the absence of clear findings in this regard prior to the MQP.

[18] The Tribunal rejects the submission that the Review Tribunal failed to consider the real world context as required by Villani. Further, the Tribunal finds that the Review Tribunal considered all of the medical evidence, both that which supported severe disability and that which supported only mild disability as of the MQP.^{Footnote 6}  Ultimately, it was the Applicant’s failure to seek alternative work prior to the MQP that held the most suasion with the Review Tribunal. The Tribunal finds that the Review Tribunal decision meets the Dunsmuir test for reasonableness as its reasons permit the Tribunal to understand why the Review Tribunal made its decision and to determine whether the conclusion is within the range of acceptable outcomes. (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190); Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 SCR 708).

[19] Accordingly, this ground of the Application fails.

b) Did the Review Tribunal exhibit bias towards the Applicant?

[20] The second ground of the Application put forward by Counsel for the Applicant is that a bias may have infiltrated the Review Tribunal’s decision making. Counsel for the Applicant expresses this ground thus,

“The Applicant believes that the Panel was swayed by the belief that the Applicant could find sedentary work in the ’Portuguese community‘ as if there were a separate and distinct Portuguese community in the Greater Toronto Area. There are many native Portuguese speakers, but this does not make an independent ’community‘with its own economy.  The idea is preposterous.”

[21] The problem with this submission is that Counsel for the Applicant appears to be the only person making it.  The only reference to a Portuguese community comes at paragraph 11 of the Review Tribunal decision.  The paragraph recounts the Applicant’s evidence and notes that “occasionally he plays cards at the Portuguese Club.”  The Tribunal is not persuaded that noting that the Applicant spends some of his waking hours in this fashion can translate into an expectation that the Applicant could find work in the Portuguese community.  The Tribunal is hard pressed to find a reasonable apprehension of bias against the Applicant on the part of the Review Tribunal.  Accordingly, the Tribunal rejects the submission as a valid ground of appeal.

[22] In light of the above analysis, the Applicant has failed to satisfy the Tribunal that the appeal would have a reasonable chance of success. Therefore, the Tribunal refuses the Application.

Conclusion

[23] The Application for Leave to Appeal the Review Tribunal decision is refused.