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Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal is granted.
[2] The Appellant was disabled under the Canada Pension Plan, and is deemed to have been so disabled in April 2011. Pursuant to section 69 of the Canada Pension Plan he is entitled to receive a Canada Pension Plan (CPP) disability pension commencing August 2011.
Introduction
[3] The Appellant last applied for a CPP disability pension in July 2012. He claimed that he was disabled by chronic back pain. He also suffered from other medical conditions. The Respondent denied this application 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 matter was transferred to the General Division of this Tribunal on April 1, 2013. On October 5, 2014 the General Division dismissed the Applicant’s appeal.
[4] The Applicant sought leave to appeal to the Appeal Division of the Tribunal. He repeated a summary of his injury and illness. He also claimed that the General Division made errors in its decision, including what country he emigrated from, that he suffers from diabetes, and that he is being treated by a psychiatrist.
[5] I requested that the Respondent file submissions before I determined whether to grant leave to appeal. The Respondent filed a letter with the Tribunal dated February 4, 2015. The letter stated that the Respondent consented to leave to appeal being granted, that the General Division correctly determined the Appellant’s Minimum Qualifying Period to receive CPP disability benefits, but that the General Division made errors in its decision. Specifically, the Respondent contended that the General Division erred in stating that the Appellant came to Canada from Belgium, did not consider or analyze the facts in accordance with the decision of the Federal Court of Appeal in Villani v. Canada (Attorney General) 2001 FCA 248, and that the reasons for decision were insufficient.
[6] The Respondent also agreed that the Applicant was disabled under the CPP. It stated that he was disabled prior to his Minimum Qualifying Period of December 31, 2009 but that as he had applied for a CPP disability pension in July 2012 the earliest that he could be deemed to be disabled was April 2011. Pursuant to section 69 of the CPP disability pension payments should start for the Appellant in August 2011.
[7] In addition, the respondent suggested that documents that the Applicant filed with the Tribunal after the General Division hearing should not form part of the appeal record, but that the General Division decision should be part of it.
[8] I must therefore decide whether leave to appeal should be granted, and if so whether to give the decision that the General Division should have given.
Analysis
[9] 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.
[10] 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 (see the Appendix to this decision). I must decide whether the Applicant has presented a ground of appeal that has a reasonable chance of success on appeal.
[11] The Applicant contended that the General Division made errors of fact in its decision. These included where he emigrated from and some of his treatment. The Respondent agreed that these errors had been made. In order for these errors to be grounds of appeal under the Act, however, they must have been made in a perverse or capricious manner, or without regard to the material before the General Division. I am not satisfied that the error regarding the Applicant’s country of origin was made in the fashion. It is not a ground of appeal that has a reasonable chance of success on appeal.
[12] Regarding the Applicant’s treatment, I am not satisfied that the General Division made any error. The Applicant contended that he is currently being treated by a psychiatrist. While this is a significant change in his treatment, it did not occur prior to or at the Minimum Qualifying Period. Thus, it is not material to the decision that the General Division had to make. It is not a ground of appeal that has a reasonable chance of success on appeal.
[13] The Respondent pointed to other errors made in the General Division decision. It argued that the General Division did not examine the facts of this case in light of the factors that Federal Court of Appeal set out in the Villani decision. In Garrett v. Canada (Minister of Human Resources Development), 2005 FCA 84 the Federal Court of Appeal concluded that the failure to cite or conduct an analysis in accordance with the Villani decision is an error in law. The General Division decision did not mention the Villani case, nor the principles it stands for. This ground of appeal has a reasonable chance of success on appeal.
[14] In addition, the Respondent contended that the reasons for the General Division decision were insufficient. In R. v. Sheppard 2002 SCC 26 the Supreme Court of Canada stated that a decision maker must provide reasons that allow an appellate review of the decision. In part, this means that an appellate body should intervene when one cannot determine what decision was made, and why that decision was made. In this case, the decision does not contain all of the analysis of the evidence and the applicable law. Hence it is unclear why it made the decision it did. This argument may also have a reasonable chance of success on appeal.
[15] Finally, the Respondent contended that the General Division decision should form part of the appeal record, and that the additional medical documents filed by the Applicant should not. I agree. It is necessary to have the General Division decision in order to review it on appeal. Section 58 of the Act does not permit the introduction of new evidence as a ground of appeal in this case. The appeal record should be corrected accordingly.
[16] Finally, section 59 of the Act permits the Appeal Division to give the decision that the General Division should have given. In this case, the Respondent conceded in its submissions that the Applicant was disabled prior to the Minimum Qualifying Period. However, because he applied for a CPP disability pension in July 2012 he cannot be found to be disabled prior to April 2011 (section 42(2)(b) of the CPP provides that an applicant cannot be found to be disabled earlier than 15 months prior to the date he applied for the disability pension). The Respondent submitted that the Applicant should be deemed to be disabled at this date.
[17] The Applicant wrote to the Tribunal and agreed with this. There is evidence in the General Division file that supports this conclusion. Therefore, I am prepared to give the decision that the General Division should have given in this case.
Conclusion
[18] For the reasons set out above the Application is granted.
[19] The Applicant is deemed to have become disabled under the CPP in April 2011 and is entitled to receive a CPP disability pension commencing August 2011 pursuant to sections 42 (2)(b) and 69 of the CPP.
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.
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.