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Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal is granted.
Introduction
[2] The Applicant applied for a Canada Pension Plan disability pension. He claimed that he was disabled by the cumulative effects of chronic low back pain, obesity, obstructive sleep apnea, knee pain and depression. He is also diabetic. The Respondent denied the Applicant’s claim initially and after reconsideration. The Applicant appealed to the Office of the Commissioner of Review Tribunals. The matter was transferred to the General Division of this Tribunal pursuant to the Jobs, Growth and Long-term Prosperity Act. The General Division conducted a videoconference hearing, and on Novembe 12, 2014 dismissed the Applicant’s appeal.
[3] The Applicant sought leave to appeal to the Appeal Division of the Tribunal. He argued that the General Division erred in law by failing to consider all of his medical conditions in determining whether he was disabled, used the wrong legal test for “severe” under the Canada Pension Plan, and did not apply the principles set out in the Federal Court of Appeal decision in Villani v. Canada (Attorney General) 2001 FCA 248.
[4] The Respondent filed no 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). 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.
[6] The Department of Employment and Social Development Act governs the operation of this Tribunal. Section 58 of the Act sets out the only grounds of appeal that may be considered to grant leave to appeal a decision of the General Division (this is set out in the Appendix to this decision).
[7] In this case, the Applicant argued that the General Division erred in law. First, he contended that the General Division did so as it did not consider his sleep apnea, depression or obesity and their impact on his capacity to work in reaching its decision. He relied on the decision of the Federal Court of Appeal in Bungay v. Canada (Attorney General) 2011 FCA 47to support his argument that the General Division was obliged to consider all of his medical conditions, not just the most significant ones, to determine whether he had disability that was severe and prolonged under the Canada Pension Plan (CPP). The General Division decision noted all of the Applicant’s medical diagnoses, and discussed many of the conditions. It did not, however, consider the cumulative effect of all of these conditions on the Applicant’s capacity to work. This may be an error in law. This argument therefore has a reasonable chance of success on appeal.
[8] The Applicant also argued that the General Division erred in law as it applied the incorrect legal test to determine if his condition was “severe” under the CPP. The decision states that the Applicant lacked documentary evidence supporting a severe psychological condition. It is not the nature of a medical condition, but its effect on an applicant’s capacity to work that must be examined under the CPP. The General Division may have erred in this regard. Hence, this argument is also a ground of appeal that has a reasonable chance of success on appeal.
[9] In addition, the Applicant contended that the General Division erred as it did not apply the principles set out in the Villani decision to the facts of this case. I accept the Applicant’s argument that it would be an error of law not to consider these factors in determining whether an applicant was disabled under the CPP. The General Division decision stated the principles from this decision. It also recites in some detail the Applicant’s work and educational history. Thus I am not persuaded, based on the materials presently before me, that this argument would have a reasonable chance of success on appeal. However, I am prepared to hear further argument on this ground of appeal at the hearing of the appeal.
[10] The Applicant argued, finally, that the General Division erred as it did not consider whether his disability was prolonged because it was not severe. In order to be found disabled under the CPP an applicant must have a disability that is both severe and prolonged. The General Division made no error by not considering whether the disability was prolonged as it was found not to be severe. This argument does not have a reasonable chance of success on appeal.
Conclusion
[11] The Application is granted as the Applicant has presented grounds of appeal that have a reasonable chance of success on appeal.
[12] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.
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.
58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.