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Introduction
[1] The Applicant applied for a Canada Pension Plan disability pension, and claimed that he was disabled by ongoing back pain and other injuries caused at work. The Respondent denied his claim 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 appeal was transferred to the General Division of the Social Security Tribunal of Canada. The General Division held a hearing and on April 28, 2015 dismissed the appeal.
[2] The Applicant sought leave to appeal to the Appeal Division of the Tribunal. He argued that the General Division erred in concluding that the date of disability was December 2013, as it should have been in 2011 when he stopped work, that the General Division improperly relied on opinion evidence of the Applicant`s insurer, that it filed to consider the Applicant’s correct work capacity and that it failed to apply the test for disability set out in Villani v. Canada (Attorney General) 2001 FCA 248.
[3] The Respondent filed no submissions.
Analysis
[4] 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 whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41, Fancy v. v. Canada (Attorney General), 2010 FCA 63.
[5] 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 (the section is set out in the Appendix to this decision). Therefore, I must decide if the Applicant has presented a ground of appeal under the Act that may have a reasonable chance of success on appeal.
[6] The Applicant contended, first, that the General Division erred in finding that he was disabled as at December 2013. He submitted that the decision contained no explanation for finding him disabled as of this date, and the evidence supported his claim that he was disabled in 2011 when he could no longer perform physically demanding tasks, which was the only work he had ever done. In R. v. M. (R.E.) (2008 SCC 51) the Supreme Court of Canada discussed the purposes that are to be served by written reasons for a decision. These include allowing the parties to understand why the decision was made, and to permit effective appellate review of the decision. In this case, the General Division decision contained a summary of the medical evidence that was before it. The decision concluded that the Applicant was disabled as at December 2013. It did not, however, provide any explanation for finding this as the date that the disability had its onset. Without such an explanation, it is difficult for parties to understand why this conclusion was reached. Hence, I am satisfied that this argument is a ground of appeal that may have a reasonable chance of success on appeal.
[7] The Applicant also argued that the General Division improperly relied on opinion evidence from his insurer’s doctor which should have been inadmissible as the doctor was not an expert or alternatively should not have been given much weight. It is for the General Division, as the trier of fact to receive evidence from the parties, assign weight to it and make a decision based on the evidence and the law. It is not for the Appeal Division to reweigh this evidence to reach a different conclusion or to determine whether evidence accepted by the General Division in this case was admissible (it does not appear that this issue was raised at the General Division hearing). I am not satisfied that this ground of appeal has a reasonable chance of success on appeal.
[8] Finally, the Applicant asserted that the General Division did not assess the Applicant’s true work capacity and did not apply the legal test for disability as set out in the Villani decision. It is settled law that this must be considered in every case. The General Division decision correctly set out the legal test established in Villani, and noted that the Applicant had almost no command of English. In its analysis of the evidence, however, it does not seem to have considered the Applicant’s work experience and his capacity to retrain for sedentary work. These grounds of appeal may have a reasonable chance of success on appeal.
Conclusion
[9] The Application is granted as the Applicant has presented at least one ground of appeal that may have a reasonable chance of success on appeal.
[10] 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.