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Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal is refused.
Introduction
[2] The Applicant applied for a Canada Pension Plan disability pension in April 2010. He claimed that he was disabled as a result of mental illness and physical impairments. The Respondent denied the disability claim initially and after reconsideration. The Applicant appealed to the Office of the Commissioner of Review Tribunals. Pursuant to the Jobs, Growth and Long-term Prosperity Act, the claim was transferred to the General Division of the Social Security Tribunal on April 1, 2013. On October 24, 2014 the General Division denied the Applicant’s appeal, finding that he was not disabled.
[3] The Applicant sought leave to appeal from the General Division decision. He argued that leave to appeal should be granted because the General Division erred when it concluded that he had not made reasonable efforts to comply with treatment recommendations, and that the General Division erred in its application of the principles set out in the Villani v. Canada (Attorney General) 2001 FCA 248 decision to this case.
[4] The Respondent did not file any submissions.
Analysis
[5] 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 determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. v. Canada (Attorney General), 2010 FCA 63.
[6] Section 58 of the Department of Employment and Social Development Act sets out the only grounds of appeal that may be considered to grant leave to appeal from a decision of the General Division (this is set out in the Appendix to this decision). Therefore, I must decide if the Applicant has put forward a ground of appeal under section 58 of the Department of Employment and Social Development Act that has a reasonable chance of success on appeal.
[7] The Applicant presented two arguments as grounds of appeal. First, he argued that the General Division erred when it concluded that he had not made reasonable efforts to undertake and submit to treatment programs. The General Division decision summarized the testimony and written evidence regarding this. The Applicant did not allege that it made any error in so doing, only that he disagreed with the conclusion reached. In Simpson v. Canada (Attorney General), 2012 FCA 82 the Federal Court of Appeal concluded that assigning weight to evidence, whether oral or written, is the province of the trier of fact, the General Division in this case. It is not for the Appeal Division to reweigh the evidence to reach a different conclusion. Therefore, this ground of appeal does not have a reasonable chance of success on appeal.
[8] The Applicant also argued that the General Division erred in its application of the principles set out in the Villani decision in this case. He argued that with his educational background and work history, he would not be able to acquire skills to work in a sedentary job. In Villani, the Federal Court of Appeal stated that when deciding whether a claimant is disabled, the decision maker must examine the claimant’s personal characteristics as well as their medical condition(s). The General Division decision considered the Applicant’s personal characteristics, including his education, age, language skills and work and life experience. It weighed this evidence and concluded that the Applicant had the capacity to learn and work in a sedentary position. It made no error in so doing. Therefore, this ground of appeal also does not have a reasonable chance of success on appeal.
Conclusion
[9] The Application is refused as the Applicant has not presented a ground of appeal that has a reasonable chance of success on appeal.
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.
(2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.