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Decision
[1] Leave to appeal to the Appeal Division of the Social Security Tribunal of Canada is refused.
Introduction
[2] On April 29, 2015, the General Division of the Social Security Tribunal of Canada, (the Tribunal), determined that the Applicant was not entitled to a disability pension as she did not have a mental or physical disability that was “severe and prolonged” as defined by the Canada Pension Plan, (CPP). The Applicant has filed an application for leave to appeal, (the Application), with the Appeal Division of the Tribunal.
Grounds of the application
[3] The Applicant sought leave to appeal on the basis that, “Pursuant to s. 58(2) of the Department of Human Resources and Skills Development Act,Footnote 1she believed her Application Requesting Leave to Appeal to the Appeal Division has a reasonable chance for success because: she has a severe and prolonged condition of bilateral knee disease as documented by her doctors.”
[4] The Applicant’s stated reasons for the appeal were that “the Chair [meaning the General Division Member] relied too heavily on education and transferable skills and the lack of mitigating factors such as looking for other work.” The Tribunal infers from the reasons the Applicant gave for making the Application that she is alleging that the General Division made an error (or errors) of mixed fact and law.
Issue
[5] The Tribunal must decide whether the appeal has a reasonable chance of success.
The law
[6] Leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division.Footnote 2 To grant leave, the Appeal Division must be satisfied that the appeal would have a reasonable chance of success. The Federal Court of Appeal has equated a reasonable chance of success to an arguable case: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41; Fancy v. Canada (Attorney General), 2010 FCA 63.
[7] The Grounds of Appeal are set out in section 58 of the DESD Act.Footnote 3 These are the only grounds on which an Applicant may appeal a decision of the General Division.
Analysis
[8] The General Division denied the appeal largely because the Member found that the Applicant quit her job without seeking modified duties, and once she quit, took no steps to obtain alternative employment.Footnote 4 The General Division Member found that the Applicant was relatively young, well educated, had transferable skills and a demonstrated ability to adapt to the needs of the various workplaces, all of which factors would have served the Applicant well in the workforce. In other words, the Applicant had not established that she did not have retained work capacity.
[9] The Applicant objects that the Member’s reliance on her “education and transferable skills and the lack of mitigating factors such as looking for other work”, however, the case law demands that the General Division look at these very factors when assessing ‘severe disability’. Furthermore, given that the General Division Member found that the Applicant had retained work capacity, the case law required that she establish that her efforts at obtaining and maintaining employment were unsuccessful because of her health condition: Inclima v. Canada (Attorney General) 2003 FCA 117. The General Division Member found that by not looking for work the Applicant was caught by this requirement.
[10] The Tribunal has examined the General Division’s reasons with a view to deciding whether they disclose a ground that might be successful on appeal. The Tribunal finds no error on the part of the General Division. The General Division Member examined the circumstances that prompted the Applicant to leave her work; her attempts to find alternative work as well as the medical and other evidence that could support a finding of a severe medical disability. This evidence included the Applicant’s oral testimony. With this in mind, the Tribunal finds that, overall, the General Division decision is reasonable in that it demonstrates the existence of justification, transparency and intelligibility within the General Division decision-making process.
[11] Further, on considering the totality of the Applicant’s submissions, which in essence are little more than a statement of disagreement with the General Division conclusions, the Tribunal finds that the decision was reasonable and falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law and the requirements of the CPP. The Tribunal finds that there is no basis on which to grant the Application as it is not satisfied that the appeal would have a reasonable chance of success.
Conclusion
[12] The Application is refused.