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Decision
[1] The appeal is dismissed.
Introduction
[2] The Appellant applied for a Canada Pension Plan disability pension. She claimed that she was disabled by anxiety and depression, chronic pain, fibromyalgia, fatigue and other medical conditions. The Respondent denied her application initially and after reconsideration. The Appellant appealed to the Office of the Commissioner of Review Tribunals. Pursuant to the Jobs, Growth and Long-term Prosperity Act, the matter was transferred to the General Division of this Tribunal. After a hearing it dismissed the appeal. On January 5, 2015 I granted the Appellant leave to appeal to the Appeal Division of this Tribunal on the basis that the General Division may have erred in not considering the effect of the Appellant’s fatigue on her other medical conditions and her ability to work at a substantially gainful occupation (the only grounds of appeal that can be considered are set out in the Appendix to this decision).
[3] The Social Security Tribunal Regulations provide that within 45 days of leave to appeal being granted the parties may file submissions with the Appeal Division of the Tribunal. After that time has expired, the Appeal Division must without delay make a decision on the appeal or if it determines that a further hearing is required, send a Notice of Hearing to the parties. In this case, counsel for the Appellant wrote to the Tribunal after leave to appeal was granted and stated that she reserved a right to file submissions in reply to those submitted by the Respondent. The Tribunal responded that the Regulations do not provide for any right of reply to submissions made by the other party.
[4] The Appellant made no submissions regarding the appeal, except in a Reply to the Leave to Appeal Decision. She disagreed with my conclusion in the decision that granted leave to appeal that the General Division did not err by not referring to a particular decision of the Pension Appeals Board in reaching its decision. She contended that the appeal should be granted and that the Appeal Division should give the decision that the General Division should have given, and find the Appellant disabled under the Canada Pension Plan.
[5] The Respondent made lengthy submissions regarding the standard of review to be applied to the General Division decision, and argued that the decision was reasonable. On this basis, it contended that the appeal should be dismissed.
[6] Therefore, I must determine whether the General Division made an error of mixed law and fact such that the appeal should be granted. I have considered the General Division decision and the written submissions of the parties in making this decision.
Standard of review
[7] The Applicant filed no submissions regarding what standard of review should be applied to the General Division decision. The Respondent filed lengthy submissions on this issue. It submitted that the proper standard of review for a decision made by the General Division on questions of mixed law and fact is that of reasonableness. The leading case on this is Dunsmuir v. New Brunswick 2008 SCC 9. In that case, the Supreme Court of Canada concluded that when reviewing a decision on questions of fact, mixed law and fact, and questions of law related to the tribunal’s own statute, the standard of review is reasonableness; that is, whether the decision of the tribunal is within the range of possible, acceptable outcomes which are defensible on the facts and the law. This was followed by the Federal Court of Appeal in Atkinson v. Canada (Attorney General) 2014 FCA 187, a case where the Federal Court of Appeal considered an application or judicial review of a decision made by the Appeal Division of this Tribunal. Therefore, the standard of review to be applied in this case is whether the General Division decision was reasonable.
Analysis
[8] The Appellant made no submissions on the merits of this appeal. The Respondent argued, first, that because the Appellant received Employment Insurance benefits, where she stated that she was ready, willing and able to work, she was not disabled. This argument was presented to the General Division and considered by it. Its repetition does not establish whether the General Division considered the impact of the Appellant’s fatigue on her work capacity or her other medical conditions.
[9] The Respondent also contended that the General Division considered the effect of the Appellant’s fatigue on her other medical conditions and her ability to work. It referred to the summary of the written evidence in the decision, where Dr. Riddle noted that the Appellant reported feeling tired, and Dr. Maunder noted symptoms of fatigue. While I appreciate that these comments were noted as part of the evidence before the General Division, the mere fact that these comments were noted does not establish what weight, if any the General Division placed on this evidence in making its decision. These comments also did not refer to any impact that fatigue might have had on the Appellant’s ability to work.
[10] However, after reviewing all of the written and oral evidence the General Division concluded that the Appellant left her job in 2009 as a result of fractured ankles, not fatigue. The General Division also concluded that hypothyroidism and its symptoms, including fatigue, did not prevent the Appellant from working. Finally, the General Division decision assessed whether all of the “non ankle related medical conditions” rendered her disabled and concluded that they did not. These are findings of fact made by the General Division after considering and weighing the evidence before it. Assigning weight to evidence, whether oral or written is the province of the trier of fact, the General Division in this case (Simpson v. Canada (Attorney General), 2012 FCA 82). Based on the material before me, I am satisfied that the General Division made reasonable findings of fact. They are based on the written and oral evidence before it and are defensible on the facts and the law.
[11] In Gaudet v. Attorney General of Canada 2013 FCA 254 the Federal Court of Appeal decided that a reviewing tribunal is not to retry the issues, but to assess whether the outcome was acceptable and defensible on the facts and the law. In doing so, the General Division reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62). In this case, the General Division decision provides a summary of the written and oral evidence that was before it. The reasons permit the reader to understand what the decision was and why it was made. Although the General Division decision did not specifically state that it had considered the effect of the Appellant’s fatigue on her other medical conditions and her ability to work, upon a review of the whole decision I am satisfied that it did. The General Division decision provided a detailed summary of the medical evidence, including when fatigue was reported to the medical specialists. It also summarized the Appellant’s testimony, which contained complaints of fatigue and her activities of daily living. The decision, when considered together with the outcome, is reasonable and defensible on the evidence and the law. Therefore, the appeal must be dismissed.
[12] Lastly, the Appellant filed a Reply to the Leave to Appeal decision. In this document she repeated her argument that the General Division erred as it did not consider the Pension Appeals Board decision in Taylor v. Minister of Human Resources Development (CPP 4436). As I stated in the decision that granted leave to appeal, decisions of the Pension Appeals Board are not binding on the General Division. The fact that these decisions have been given deference does not make them binding. The General Division made no error in not referring to or applying the reasoning in Taylor to this case. The repetition of this argument does not point to any error made by the General Division. The appeal cannot succeed on this basis
Conclusion
[13] For these reasons the appeal is dismissed.
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.
59. (1) The Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate or confirm, rescind or vary the decision of the General Division in whole or in part.