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In attendance
- Appellant: K. S.
- Representative for the Appellant: Mary Phan (Counsel)
- Representatives for the Respondent: Michael Stevenson (Counsel) and Faiza Ahmed-Hassan (Articled Student)
Introduction
[1] This is an appeal of the decision of the Review Tribunal issued on February 14, 2013, which dismissed the Appellant’s application for disability benefits, on the basis that he did not prove that his disability is severe for the purposes of the Canada Pension Plan. Leave to appeal was granted on March 7, 2014, on the grounds that the Review Tribunal may have made an error of law and may have based its decision on erroneous findings of fact without regard for the evidence before it.
Factual overview
[2] The Appellant was 46 years old when he submitted an application for Canada Pension Plan disability benefits. He has a Grade 12 education and a diploma in environmental technology. He has worked largely in physically demanding positions that require social interaction with others. He was last employed in the shipping industry, when he stopped working in September 2009, according to him, for medical reasons. The Appellant suffers from lower back pain as well as chronic anxiety and depression.
[3] In summer 2009, the Appellant applied for several positions but did not receive any responses. He enrolled in an EI Self-Employment Program and eventually started up his own business. He closed the company in early 2011, which he blames on his medical condition. The Appellant has not worked since 2011. The Appellant’s minimum qualifying period (“MQP”) is December 31, 2011.
Issues
[4] The issues before me are as follows:
- a) What format should the appeal take? Is the Appellant entitled to an in-person hearing?
- b) If the appeal is in the nature of judicial review, what is the applicable standard of review - is it one of correctness or reasonableness?
- c) Did the Review Tribunal make an erroneous finding of fact without regard for the material before it?
- d) Did the Review Tribunal commit an error in law by failing to apply the principles set out in Villani v. Canada (Attorney General), 2001 FCA 248?
- e) If the standard is reasonableness, is the decision of the Review Tribunal reasonable? If the standard is correctness, what outcome should the Review Tribunal have reached?
- f) What is/are the appropriate remedy(ies), if any, if the Review Tribunal committed any errors?
Preliminary issue - format of appeal
[5] Counsel for the Appellant requested an in-person hearing of the appeal, so that the Appellant could be provided with an opportunity to present his case fully and fairly through a fair, impartial and open process. Counsel for the Appellant relies upon the following:
- Counsel for the Appellant submits that the Appeal Division is an adjudicative body that decides individual and fact-driven cases through an adversarial process, and engages in a process that “resembles judicial decision-making”. She submits that the procedural protections – including an in-person hearing -- afforded by a trial are required in such a case.
- There is no right of appeal from a decision of the Appeal Division.
- The outcome of the appeal is important to the Appellant, as disability benefits represent a source of income replacement.
- The Appellant applied for Canada Pension Plan disability benefits prior to the establishment of the Social Security Tribunal and as such, held a legitimate expectation that he would have an in-person hearing.
- The Appellant suffers from mental health issues and a pain condition that are difficult to assess through written submissions. Counsel for the Appellant submits that the Appeal Division must determine how the Appellant’s disability impacts upon him, particularly his ability to work. Counsel for the Appellant submits that an in-person hearing is the only means by which the Appeal Division can properly assess an appellant’s demeanour and credibility, and that there are limitations with videoconferencing.
[6] I agree with the submissions of counsel for the Appellant that there can be limitations involving the use of audio- and video technology in the place of in-person hearings. This was evident when initially there was no audio available at the Canada Service Centre from which the Appellant and his counsel participated via videoconferencing in these proceedings. Indeed, counsel for the Appellant was forced to resort to preparing written responses to questions about the adequacy of the equipment. Proceedings officially commenced only after all technical issues had been rectified.
[7] Before I determine the appropriateness of the format of the appeal, I note that section 21 of the Social Security Regulations permits me to conduct hearings by way of written questions and answers; teleconference, videoconference or other means of telecommunication; or the personal appearance of the parties. There is no absolute right to an in-person hearing under the Regulations.
[8] There can be numerous factors, including the availability and adequacy of equipment, cost and convenience to the parties, which a decision-maker can take into account in determining the appropriate format of an appeal. In my view, a party’s entitlement to a full and fair hearing ought to be the foremost consideration. If there should exist any doubt as to whether a party might not receive a full and fair hearing other than with an in-person hearing, the decision-maker ought to err on the side of caution and provide for an in-person hearing.
[9] In Bradley v. Bradley, [1999] B.C.J. No. 2116, the Supreme Court ruled witnesses’ evidence given by videoconference to be admissible. The Supreme Court determined that proceeding in this manner did not offend principles of procedural fairness and natural justice, and if the technology proved to be ineffective, the proceedings could be stopped and the issue as to the appropriateness of videoconferencing revisited. In this particular instance, I am satisfied that the parties will be afforded a full and fair hearing with videoconferencing.
[10] There is an underlying inference that an in-person hearing entitles a party to a hearing de novo. This raises a fundamental question as to what the nature of the proceedings before the Appeal Division ought to be: are the proceedings in the form of an appellate review, or in the nature of a judicial review? If the appeals before the Appeal Division are intended to be in the form of an appellate review, there is some procedural continuity with the Pension Appeals Board, which preceded the Appeal Division, as those hearings were in the form of an appellate review. Such appeals would permit me to hear “new evidence” that may not have been before the Review Tribunal. This would also enable an appellant to obtain additional medical opinion and to address any shortcomings or deficiencies which he may have had in the appeal before either a Review Tribunal or the General Division. An appellate review would provide an appellant with a second opportunity to try his case.
[11] The Respondent refutes any notion that an appeal before the Appeal Division was designed to provide for either a full assessment or a reassessment of an appellant’s claim for disability benefits and submits that the Appeal Division is restricted to hearing the appeal as if it were in the nature of a judicial review. Counsel for the Respondent submits that subsection 58(1) of the Department of Employment and Social Development Act (“DESDA”) necessarily restricts me to considering those issues that fall within any of the enumerated grounds of appeal upon which leave to appeal was granted.
[12] Counsel for the Appellant referred me to three separate legal authorities, but I do not find them to be particularly germane to the issue of the mode of hearing on appeal, as they relate to whether an in-person hearing is required where serious matters of credibility are at issue, rather than the nature of the proceedings on an appeal to the Appeal Division. Counsel for the Appellant presupposes that the appeal allows for a wholesale assessment of the evidence, but I have not been referred to any authorities yet that definitively provide for an appeal to proceed in a manner other than in the way of a judicial review.
[13] In essence, counsel for the Appellant suggests that appellants are entitled to appeals de novo. For reasons which I determined in F.D. v. the Minister of Employment and Social Development, (October 20, 2014), SSTAD-13-200 (unreported), I remain of the view that there is no entitlement to a hearing de novo at the appeal stage. In that decision, I wrote:
[40] The provisions of the DESDA came into force on April 1, 2013. Subsection 58(1) of the DESDA set out the grounds of appeal. The language preceding the set grounds of appeal under that subsection is significant. The subsection states, “The only grounds of appeal…” The fact that there have been limited grounds
of appeal from decisions of the General Division (or Review Tribunal) as of April 1, 2013 is instructive, as it signals that with the appeal being restricted to certain grounds of appeal, the Appeal Division thereby is precluded from a hearing de novo. . . ..[42] In my view, by April 1, 2013, there was no allowance for a hearing de novo on appeal, given the provisions of subsection 58(1). It therefore was neither legitimate nor reasonable for the Appellant to expect a hearing de novo at the time that she filed her application requesting leave. The procedural provisions at the time that the Appellant filed her leave application on April 19, 2013 did not provide for de novo hearings, unlike the situation in L.L.
[43] In addition to the procedural limitations under subsection 58(1) of the DESDA, a party cannot in any event rely on a legitimate expectation, absent certain considerations.
[14] In the absence of full submissions, I have not addressed the issue as to whether the appeal before me ought to proceed other than as an appeal in the nature of a judicial review. In any event, while the process of an appellate review may differ from an appeal in the nature of a judicial review, the outcome may well yield the same result.
Standard of review
[15] I will make some brief comments about the applicable standard of review. The Supreme Court of Canada determined in Dunsmuir v. New Brunswick, 2008 SCC 9 that there are only two standards of review at common law in Canada: reasonableness and correctness. Questions of law generally are determined on the correctness standard. The correctness standard is generally reserved for jurisdictional or constitutional questions, or questions which are of broad general importance to the legal system as a whole and outside the expertise of the tribunal. When applying the correctness standard, a reviewing court will not show deference to the decision-maker’s reasoning process and instead, will conduct its own analysis. Ultimately if it disagrees with the decision of the decision-maker, the court must substitute its own view as to the correct outcome. The correctness standard is vital as it promotes and ensures just decisions, consistency and predictability in the law.
[16] Dunsmuir, at paragraph 55, set out a list of factors which would lead to the conclusion that a decision-maker should be afforded deference and should apply a reasonableness test:
- - A privative clause; this is a statutory direction from Parliament or a legislature indicating the need for deference.
- - A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance).
- - The nature of the question of the law. A question of law that is of “central importance to the legal system . . . and outside the … specialized area of expertise” of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., [2003] 3 S.C.R. 777, at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate.
[17] The scope of the standard of reasonableness has been refined, if not extended, to include issues that (1) relate to the interpretation of the administrative tribunal’s “home statute” or statutes closely connected to its function with which it has familiarity and expertise, (2) raise matters of fact, discretion or policy or (3) involve inextricably intertwined legal and factual issues: Smith v. Alliance Pipeline, [2011] SCC 7, [2011] 160, at para. 26.
[18] Counsel for the Respondent submits that reasonableness is the default standard of review subject to deference when a tribunal is “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity”. He relies on a number of authorities, where the Courts have consistently held that reasonableness is the default standard of review: Dunsmuir, ibid, at para. 54; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Assn., 2011 SCC 61 at para. 34; McLean v. British Columbia (Securities Commission), 2013 SCC 67 at para. 21.
[19] Counsel for the Appellant alleges that the Review Tribunal committed an error of law, but nonetheless agrees with counsel for the Respondent that the applicable standard of review here is one of reasonableness, given that interpretation of the “home statute” is involved.
[20] The Respondent submits that, irrespective of whether the Review Tribunal committed any errors, the ultimate test we are to apply is to assess whether the decision of the Review Tribunal falls within the range of acceptable outcomes.
[21] Counsel for the Appellant submits on the other hand that the Review Tribunal’s decision is unreasonable, as it does not fall within the range of acceptable outcomes, based on the facts and the applicable law before it.
[22] The Supreme Court set out the reasonableness approach in Dunsmuir at paragraph 47:
Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[23] Hence, if I am to follow these legal authoritiesFootnote 1, then I should apply a deferential standard of reasonableness. This requires that I determine whether the decision of the Review Tribunal can be justified, is transparent and intelligible and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. In this particular case, even if I should find that the Review Tribunal erred, its decision can still stand if I should find that it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
Grounds of appeal
a) Alleged Erroneous Findings of Fact
[24] The Review Tribunal considered a number of factors in determining if the Appellant had a severe disability for the purposes of the Canada Pension Plan before the end of his MQP of December 31, 2011. These included whether the Appellant had undertaken any efforts to obtain work or attend retraining or educational upgrading programs, not precluded by functional limitations.
[25] The Review Tribunal summarized the evidence regarding the Appellant’s efforts to obtain employment after September 2009, at paragraph 10 of its decision:
With the exception of a couple applications submitted after he quit work in September 2009, the Appellant has not looked for other employment, or considered other self-employment opportunities. The Appellant has not attended any retraining program or educational upgrading program since he quit working in September 2009. The Appellant testified he would have continued the self- employed marketing business if sales had been better. He said he is unable to work now because of anxiety, depression, and low back pain.
[26] At paragraph 28 of its analysis, the Review Tribunal wrote:
The Appellant has made no effort to obtain employment not precluded by anyfunctional limitations since he quit working in September 2009, nor has he pursued any retraining or educational upgrading program that would permit him to obtain employment not precluded by his functional limitations... (My emphasis)
[27] At paragraph 34, the Review Tribunal concluded as follows:
The Tribunal concluded the failure by the Appellant to make any effort to obtain work or attend retraining or education upgrading programs since he stopped working in September 2009, the conservative treatment, if any, of the Appellant’s condition since he stopped working in September 2009, the failure by the Appellant to follow treatment recommendations of a neurologist and psychiatrist, and the continued usage of marijuana reported by the Appellant’s psychiatrist as possibly exacerbating the Appellant’s anxiety, led to the conclusion the Appellant did not have a “severe” disability before the end of his MQP of December 31, 2011. The Tribunal if (sic) of the opinion the Appellant failed to establish he was incapable regularly of pursuing any substantially gainful occupation before the end of his MQP.
[28] Counsel for the Appellant submits that the Review Tribunal based its decision on erroneous findings of fact that it made without regard for the material before it. Counsel for the Appellant submits that the Review Tribunal erred and overlooked crucial evidence by finding that he had not undertaken any efforts to locate employment after September 2009, when the evidence was to the contrary. Counsel for the Appellant submits that after September 2009, he in fact enrolled in an EI Self- Employment Program, continued to seek employment and applied for several jobs, albeit without any success, and in July 2010, started a home-based business, as he thought that a home-based business would allow him to manage his medical condition. His evidence in this regard is set out, as above, at paragraph 10 of the Review Tribunal’s decision. In the leave application, counsel for the Appellant explained that the home-based business failed due to his lack of education, training and experience. The Review Tribunal noted in its decision that the Appellant had testified that he would have continued the business had it been successful.
[29] In further written submissions filed on April 17, 2014, counsel for the Appellant advised that owing to these shortcomings, the Appellant did not foresee nor know how to resolve business problems, and his irritability and anger limited his ability to resolve issues with customers. In oral submissions before the Review Tribunal, the Appellant blamed his mental health difficulties and pain condition for his failed business.
[30] Counsel for the Appellant submits that although the Review Tribunal referred to his retraining and job search efforts in its Evidence section, ultimately it concluded that he had failed to make any job search efforts. Counsel for the Appellant submits that from this, we should find that the Review Tribunal “erred in law in making its decision”. Counsel for the Appellant submits that had the Review Tribunal considered his efforts in pursuing an EI Self-Employment Program, sending out applications and attempting a home-based business, it would have concluded that the Appellant’s disability is severe, such that he is incapable regularly of pursuing any substantially gainful occupation.
[31] Counsel for the Respondent submits that the Review Tribunal did not err, as it referred to the evidence and was consistent with the relevant case authorities governing the requirement that applicants must show (where there is a residual capacity to work) that they have made efforts to find work or show that they were unable to pursue any efforts due to the complained of medical condition. Counsel for the Respondent submits that the Appellant failed to demonstrate that he sought other work (other than submitting a couple of applications) and thereby could not show that he was not working due to a “complained of medical condition”.
[32] The Review Tribunal did not refer to the fact that the Appellant had pursued an EI Self-Employment Program or sent out some applications in its Analysis section. These facts appeared in only the Evidence section. Had the Review Tribunal simply said that the Appellant had made no effort to obtain employment and did not pursue any retraining or educational upgrading, I would have concluded that it had erred in these findings, given the evidence. However, the Review Tribunal wrote at paragraph 28 in its Analysis section that the Appellant had made no effort to obtain employment “not precluded by any functional limitations” and had not pursued any retraining or educational upgrading program that would permit him to obtain “employment not precluded by his functional limitations”. There may be a fine distinction between what the Appellant submits the Review Tribunal found and what the Review Tribunal actually found to be the case, but this distinction is significant and cannot be overstated. There is a distinction between “employment” per se and “employment not precluded by functional limitations”, as the latter qualifies the nature of employment or retraining efforts sought by the Appellant.
[33] Counsel for the Appellant submits that there is little, if any, distinction between the “no effort to obtain employment” and the language employed by the Review Tribunal that the Appellant made “no effort to obtain employment not precluded by any functional limitations”. She says that this is so, as the Appellant is precluded from virtually all types of “labour-type jobs”.
[34] The Appellant’s limitations and restrictions are well-documented, but it appears that the Review Tribunal contemplated gainful occupation beyond “labour-type jobs”, which it envisioned the Appellant capable regularly of pursuing. Any other interpretation would render the expression “not precluded by any functional limitations” hollow and meaningless.
[35] I recognize that the Review Tribunal was inconsistent in its description of the Appellant’s efforts in the Analysis section. At paragraph 34, the Review Tribunal wrote that the Appellant failed to make any efforts to obtain work or attend retraining or educational upgrading programs. The Review Tribunal did not qualify the employment or the retraining. I do not know if this was merely an oversight on the part of the Review Tribunal, or if it determined that it was unnecessary to add the descriptive qualifier, given that in the preceding paragraphs, it had defined the employment and retraining as not being precluded by the Appellant’s functional limitations.
[36] Counsel for the Appellant is correct to say that the Review Tribunal erred at paragraph 34 in finding that he had failed to make any efforts to obtain work or attend retraining or educational upgrading programs, when clearly there was evidence of his efforts. The Review Tribunal may have determined that his efforts were limited or insufficient for the purposes of the Canada Pension Plan, but these efforts were present. However, I am of the view that the inconsistency at paragraph 34 can be reconciled by the fact that the Review Tribunal had set out the evidence and qualified the Appellant’s efforts twice, at paragraph 28 of its decision.
[37] Counsel for the Respondent made an alternative submission that the Appellant could not be found disabled, as he had also failed to prove that he was unsuccessful at obtaining and maintaining employment because of his medical disability. In Inclima v. Canada (Attorney General), 2003 FCA 117, the Federal Court of Appeal wrote at paragraph 3 as follows:
Consequently, an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition.
[38] There are some parallels in the Respondent’s alternative submission to its primary submission, in that applicants are required to show that any failed efforts at either finding work or maintaining employment finds their root cause in the applicants’ health condition.
[39] Counsel for the Appellant submits that he closed his business due to medical reasons, and that this was overlooked by the Review Tribunal. The Review Tribunal summarized the evidence before it, indicating that the Appellant had closed his business in February 2011 “because of poor sales” (at paragraph 8) and that he would have continued the self-employed marketing business “if sales had been better” (at paragraph 10). The hearing file before the Review Tribunal included the Questionnaire for Disability Benefits, completed in June 2011. In the Work History, the Appellant disclosed that he had ceased self-employment due to “lack of sales”. And, in his type- written submissions dated November 23, 2011 to the Review Tribunal, Counsel for the Appellant wrote that:
[The Appellant’s] self-employment was his last attempt at gainful employment without the physical pain and phychological (sic) stress of regular employment, but this failed to provide substantial income to support [him].
[40] There was no evidence before the Review Tribunal of any efforts by the Appellant to undergo any further retraining or pursue other self-employment after he closed his business in February 2011.
[41] The Review Tribunal referred to Inclima in its decision, but does not appear to have made any determination as to whether any efforts by the Appellant to obtain and maintain employment were unsuccessful because of his health condition. It seems that the Review Tribunal found that it was not required to undergo the Inclima test and determine whether any efforts to obtain and maintain employment were unsuccessful because of his health condition. The Review Tribunal came to this conclusion as it found that the Appellant had not made any efforts to obtain employment “not precluded by any functional limitations” and had not pursued any retraining or educational upgrading program that would permit him to obtain “employment not precluded by his functional limitations”.
[42] Given the qualifications relating to the Appellant’s job search efforts set out by the Review Tribunal, it cannot necessarily be said that the Review Tribunal erred. The Appellant has not persuaded me on a balance of probabilities that the Review Tribunal erred and overlooked crucial evidence by finding that he had not undertaken any efforts to locate employment after September 2009, when it qualified his evidence in this regard by stating that it was “not precluded by any functional limitations”.
b) Error in Law – Failure to Apply Villani
[43] Counsel for the Appellant submits that the Review Tribunal erred in failing to apply the principles set out by the Federal Court of Appeal in Villani, in that it did not assess his disability in a “real world context”. The Court stated that:
[38] . . . Requiring that an applicant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that an applicant be incapable at all times of pursuing any conceivable occupation. . .
[39] . . . It is difficult to understand what purpose the legislation would serve if it provided that disability benefits should be paid only to those applicants who were incapable of pursuing any conceivable form of occupation no matter how irregular, ungainful or insubstantial. Such an approach would defeat the obvious objectives of the Plan and result in an analysis that is not supportable on the plain language of the statute.
. . .
[44] …the proper test for severity is one that treats each word in the definition as contributing something to the statutory requirement…
[44] The Review Tribunal acknowledged that the severe criterion had to be assessed in a real world context and that it was required to keep in mind factors such as an applicant’s age, level of education, language proficiency and past work and life experience. In my view, the Review Tribunal correctly identified the legal test to apply, but that does not conclude the investigation.
[45] Counsel for the Appellant submits that in this particular case, the Review Tribunal neglected to consider his particular circumstances, including his age, level of education, past work experience and lack of financial resources in its assessment of why his business failed and his ability to seek other self-employment opportunities, in its overall analysis of the severity of his disability. Counsel for the Appellant further submits that the Review Tribunal also failed to consider the cumulative effect of the Appellant’s particular circumstances with his mental health and physical disabilities.
[46] The Appellant outlined his personal circumstances, which includes outdated certification in environmental technologies (a field in which he has never worked), work experience being limited to physical labour, no entrepreneurial or sedentary work experience (other than his short-lived self-employment), inability to engage in any physical labour or in any social work environment because of his chronic back pain, depression, generalized anxiety and panic disorder. Counsel for the Appellant submits that had the Review Tribunal considered the Appellant’s particular circumstances, it would have concluded that his disability is severe, such that he is incapable regularly of pursuing any substantially gainful occupation.
[47] Counsel for the Respondent submits that the Review Tribunal was reasonable in its application of Villani, as it not only described the Federal Court of Appeal decision appropriately at paragraph 24 of its decision, but also “appl[ied] the criteria to the specific facts of this case”. Counsel for the Respondent notes that the Review Tribunal listed the Appellant’s age, educational attainments and prior work experience at paragraph 8 of its decision. Counsel for the Respondent submits that an assessment of the Appellant’s personal circumstances is irrelevant in any event, as the Review Tribunal found that the Appellant’s medical condition was not severe.
[48] Counsel for the Respondent further submits that the Appellant's circumstances do not support a finding that in the “real world” he would be unable to engage in employment, given his age, language profile, level of education, experience, and other factors. Counsel for the Respondent submits that in the real world, the fact that he speaks English and is in his 40s would assist in finding employment, rather than hinder him.
Counsel for the Respondent also submits that the Appellant should be able to undertake training and seek other employment, given his educational background and generalized skills. Counsel for the Respondent submits that the fact the Appellant did not attempt retraining, undermines any assertion that the Review Tribunal decision is unreasonable.
[49] I am unprepared to accept the submissions of counsel for the Respondent that an assessment of the Appellant’s personal circumstances is irrelevant, as it found that his medical condition was not severe. The Appellant’s counsel referred to paragraph 39 in Villani¸ in which the Court stated that “Parliament must have intended that the legal test for severity be applied with some degree of reference to the ‘real world’ ”. The Court also found additional support for adopting the ordinary meaning of subparagraph 42(2)(a)(i) in section 68 of the Regulations, which requires that anyone seeking disability benefits under the Canada Pension Plan must also provide the Minister with particular information. The section reads:
68. (1) Where an applicant claims that he or some other person is disabled within the meaning of the Act, he shall supply the Minister with the following information in respect of the person whose disability is to be determined:
- (a) a report of any physical or mental impairment including
- (i) the nature, extent and prognosis of the impairment,
- (ii) the findings upon which the diagnosis and prognosis were made,
- (iii) any limitation resulting from the impairment, and
- (iv) any other pertinent information, including recommendations for further diagnostic work or treatment, that may be relevant;
- (b) a statement of that person's occupation and earnings for the period commencing on the date upon which the applicant alleges that the disability commenced; and
- (c) a statement of that person's education, employment experience and activities of daily life.
* * *
68. (1) Quand un requérant allègue que lui-même ou une autre personne est invalide au sens de la Loi, il doit fournir au ministre les renseignements suivants sur la personne dont l’invalidité est à déterminer :
- (a) un rapport sur toute détérioration physique ou mentale indiquant
- (i) la nature, l'étendue et le pronostic de la détérioration,
- (ii) les constatations sur lesquelles se fondent le diagnostic et le pronostic,
- (iii) toute incapacité résultant de la détérioration, et
- (iv) tout autre renseignement qui pourrait être approprié, y compris les recommandations concernant le traitement ou les examens additionnels;
- (b) une déclaration indiquant l'emploi et les gains de cette personne pendant la période commençant à la date à partir de laquelle le requérant allègue que l'invalidité a commencé; et
- (c) une déclaration indiquant la formation scolaire, l'expérience acquise au travail et les activités habituelles de la personne.
[50] Hence, I am of the view that a Review Tribunal or General Division cannot properly analyze the severe criterion by examining the medical record in isolation, without concurrently assessing an applicant’s personal circumstances.
[51] I agree with the submissions of counsel for the Appellant that the Review Tribunal did not assess the Appellant’s personal circumstances, as contemplated by Villani. It is insufficient, for the purposes of an assessment, to refer to the Court’s decision and to set out the personal circumstances - whether in the Evidence or the Analysis sections - without providing any meaningful analysis as to how an applicant’s personal circumstances impact upon his capacity to regularly pursue any substantially gainful occupation. Here, the Review Tribunal fell short in conducting such an analysis and in my opinion, committed an error in mixed fact and law.
[52] I indicated above that the correctness standard applies for errors of law that are concerned with constitutional or jurisdictional issues, or legal issues of broad central importance to the legal system as a whole and outside the expertise of the tribunal, and that a reasonableness standard applies where there are errors of mixed fact and law, where there is a privative clause or where the decision-maker has special expertise, such as when an interpretation of the “home statute” is involved. Here, the error involved falls into the latter category and a reasonableness standard ought to apply. Both parties agree that a standard of reasonableness applies.
Reasonableness of decision
[53] Counsel for the Appellant submits that while the Review Tribunal considered a number of factors including his failure to pursue reasonable treatment options in determining whether the Appellant could be found disabled for the purposes of the Canada Pension Plan, she submits that the decision of the Review Tribunal is overall unreasonable.
[54] Counsel for the Appellant submits that the Review Tribunal cannot escape engaging in an assessment of an applicant’s personal circumstances, when those personal circumstances were intended to represent an integral component of the analysis of whether one’s disability qualifies as severe. Counsel for the Appellant submits that the decision of the Review Tribunal fails on the reasonableness test, as it had failed to consider the Appellant’s work history and efforts to retrain.
[55] The Respondent submits that I should follow Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 and that in applying the reasonableness standard of review, I ought not undertake a separate analysis of the Review Tribunal’s reasons. The Respondent notes that the Supreme Court described the review of an administrative decision as an organic exercise in which the reasons of the Tribunal must be read together with the outcome and serve the purpose of showing whether the result falls within the range of possible acceptable outcomes.
[56] The Respondent submits that the Review Tribunal was not required to set out all of its analyses, including any considerations of the Appellant’s circumstances, if its overall decision is reasonable and falls within the range of acceptable outcomes. The Supreme Court said in Dunsmuir at paragraph 47 that, “a court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (My emphasis).
[57] The Supreme Court had this to say in the Newfoundland decision:
[16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 CanLII 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[17] . . . Reviewing judges should pay “respectful attention” to the decision- maker’s reasons, and be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fateful.
[18] Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56 (CanLII), [2011] 2 F.C.R. 221, explained in reasons upheld by this Court (2011 SCC 57 (CanLII), [2011] 3 S.C.R. 572) that Dunsmuir seeks to “avoid an unduly formalistic approach to judicial review” (para. 164). He notes that “perfection is not the standard” and suggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the bases of its decision” (para. 163). I found the description by the Respondents in their Factum particularly helpful in explaining the nature of the exercise:
When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference. Reasons are not to be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process. Reasons do not have to be perfect. They do not have to be comprehensive. [para. 44] (My emphasis)
[58] The Federal Court of Appeal was confronted with a similar issue, in Erickson v. Canada (Minister of Human Resources and Skills Development), 2009 FCA 58. There, the appellant argued that the Pension Appeals Board based its decision on an erroneous finding of fact without regard for the evidence before it. She argued that the Board appeared to have completely overlooked the evidence of chronic regional musculoskeletal pain disorder (CRMPD) and the opinions that CRMPD prevent her from working. The Federal Court of Appeal disagreed. It found that the Board was well aware of its overall task in determining whether the applicant had a severe and prolonged disability, which prevented her from performing any gainful employment, given the options realistically available to her. The Federal Court of Appeal wrote:
[11] A careful examination of the record convinces me that there was leading medical evidence on the applicant’s condition as well as conclusive evidence on her lack of employment efforts . . . allowing the Board to conclude as it did. It is not the role of this Court to reweigh the evidence and to substitute its own opinion to that of the Board. As the Board applied the correct legal test and reasonably discharged itself of its duty, the intervention of this Court is unwarranted. The Board's decision fell within a range of possible acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, supra at paragraph 47).
[59] The reasonableness approach requires that I concern myself with the outcome. But, can the outcome be seen to be reasonable, if the Review Tribunal failed to apply so central a test to the issue as to whether the Appellant can be found disabled, and neglected to consider the Appellant’s personal circumstances? After all, the decision must be defensible in respect of the facts and the law. The words of the Federal Court of Appeal in Erickson, that the Board “applied the correct legal test” are instructive. It is not enough to identify the legal test and then thereby fail to apply it.
[60] The Federal Court of Appeal arrived at this conclusion in Garrett v. Canada (Minister of Human Resources Development), 2005 FCA 84 and in Bungay v. Canada (Attorney General), 2011 FCA 47. In Garrett, the Federal Court of Appeal set aside the decision of the Pension Appeals Board, as it found that the majority had failed to cite Villani or conduct their analysis in accordance with its principles. This constituted an error of law.
[61] In Bungay, the Court found the decision of the majority of the Pension Appeals Board there indefensible on the law. The Court found that the majority had failed to assess the applicant’s condition using the “real world” approach, and failed to take all of the applicant’s various impairments into account. The Court found that the majority focussed on one of the applicant’s conditions, and no other medical conditions, as they had no relationship to her job loss. Aside from a brief mention of the applicant’s work history, the Board also failed to mention her age, education level, language proficiency and past life experience at all or in any detail as required by Villani.
[62] In Lutzer v. Canada (Minister of Human Resources Development), 2002 FCA 190, the applicant argued that the decision of the Pension Appeals Board should be set aside as erroneous in law because it had not considered whether, in view of the applicant’s age, limited education and health difficulties, her disability was “severe”, in that, from a practice perspective, it rendered her incapable regularly of pursuing any
substantially gainful occupation. The Federal Court of Appeal rejected the applicant’s arguments and found the Board’s findings of facts on the medical issues clear and supportable on the evidence before it. The Federal Court of Appeal found that the Board mentioned the applicant’s age and years of employment experience. The Board also noted that the applicant had made no efforts to explore what employment opportunities might be available to her, given her particular circumstances. The Board set out the statutory test but did not explain the reasoning. Linden, J.A. ultimately concluded that, “despite the paucity of the Board’s reasons, I am not persuaded that it misdirected itself in law or failed to have regard to matters that in the circumstances of this case it was bound to have considered”.
[63] In Doucette v. Canada (Minister of Human Resources Development), 2004 FCA 292, the majority of the Court found that there was evidence in the record capable of supporting the view of the Pension Appeals Board that the true cause of the applicant’s inability to return to work was his failure to make greater efforts between the time of his accident and his minimum qualifying period, and “Given that conclusion, there [was] no need to make an in-depth analysis of the constraints posed to the applicant’s capacity to return to the work force by his educational level, language proficiency and past work and life experience”.
[64] Here, the Review Tribunal failed to conduct any in-depth analysis of the Villani factors or personal circumstances, but considered other aspects of the Appellant’s medical history and treatment, and also noted what it considered the limited efforts to obtain employment or pursue alternative retraining or educational upgrading, not precluded by the Appellant’s functional limitations. Had the Review Tribunal failed to consider other aspects of the Appellant’s medical history and treatment, and his efforts to explore employment opportunities, I might have been inclined to conclude the case before me to be more in line with Garrett and Bungay and hold that the overall decision is unreasonable, but I find Lutzer and Doucette to be of some assistance. My review of the decision of the Review Tribunal indicates that it carefully considered a number of other legal issues that addressed the severity question, including whether the Appellant had exhausted all reasonable treatment options. The Review Tribunal considered Minister of Human Resources Development v. Mulek (September 13, 1996), CP 4719 (PAB), in which the Pension Appeals Board stated that:
It has been consistently held by this Board that an applicant for a disability pension is obligated to make all reasonable efforts to undertake and submit to programs and treatments recommended by the treating and consulting physicians. Such programs quite often offer the only hope of ever regaining the capacity to engage in gainful occupation. Only when those measures fail after reasonable attempts and efforts, can it be determined that the disability is severe as that term is defined.
[65] While the Appellant explained why he had not pursued physiotherapy or taken anti-anxiety medication (and I do not make any judgment as to the reasonableness of those explanations), there were other treatment recommendations offered to the Appellant, including psychotherapy, which he had not pursued by the time of the hearing before the Review Tribunal. The Review Tribunal found that the Appellant had failed to follow treatment recommendations of a neurologist and psychiatrist, and that he continued to use marijuana against the recommendation of his psychiatrist, as possibly exacerbating the Appellant’s anxiety.
[66] In this regard, I accept also the submissions of counsel for the Respondent that, notwithstanding the Appellant’s current medical state, a claimant’s unreasonable refusal to follow recommended treatment may be fatal to their claim for disability benefits: Lalonde v. Canada (Minister of Human Resources Development), 2002 FCA 211. The Federal Court of Appeal stated that:
The "real world" context also means that the Board must consider whether Ms. Lalonde's refusal to undergo physiotherapy treatment is unreasonable and what impact that refusal might have on Ms. Lalonde's disability status should the refusal be considered unreasonable.
[67] The reasoning underlying the Lalonde approach is that a claimant’s disability may not be prolonged if there are still available treatment options available to him which could improve his disability such that it might render him capable regularly of pursuing substantially gainful employment. (In that regard, Lalonde addresses both the severe and prolonged issues.)
[68] Given these considerations above, I am of the view that the Review Tribunal reached an outcome that falls within the range of acceptable outcomes, and as such, is overall acceptable and defensible on the facts and the law before it.
Conclusion
[69] The appeal is dismissed.