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Introduction
[1] The Applicant suffered a right foot injury in a motor vehicle accident. He claimed that he was disabled by this injury as well as injuries to his left shoulder, back and right elbow when he applied for a Canada Pension Plan disability pension. The Respondent denied his claim initially and after reconsideration. The Applicant appealed to the Office of the Commissioner of Review Tribunals. The appeal was transferred to the General Division of the Social Security Tribunal of Canada pursuant to the Jobs, Growth and Long-term Prosperity Act. The General Division held a teleconference hearing and on May 30, 2015 dismissed the appeal.
[2] The Applicant requested leave to appeal to the Appeal Division of the Tribunal. He argued that the General Division decision erred in fact, in law and did not observe the principles of natural justice.
[3] The Respondent filed no submissions.
Analysis
[4] 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 also decided 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 can be considered to grant leave to appeal a decision of the General Division (this is set out in the Appendix to this decision). Consequently I must decide if the Applicant has presented a ground of appeal that may have a reasonable chance of success on appeal.
[6] The Applicant put forward numerous grounds of appeal in his application requesting leave to appeal. First he argued that the General Division erred by not giving adequate consideration to the medical documentation, and that it failed to weigh the impact of all of the Applicant’s injuries on him. The General Division is the trier of fact. It is to hear the evidence of the parties, weigh it and render a decision based on the facts and the law. The decision summarized the medical evidence. It considered this along with the other evidence in making its decision. It is not for the Appeal Division when deciding whether to grant leave to appeal to reweigh the evidence to reach a different conclusion (see Misek v. Canada (Attorney General), 2012 FC 890). This ground of appeal does not have a reasonable chance of success on appeal.
[7] Similarly, the Applicant’s argument that the General Division focused too much on the Applicant’s diagnosis and that he was treated by his family physician rather than specialists must fail as it is for the General Division to weigh this evidence.
[8] The Applicant also argued that the General Division did not consider the Applicant’s credibility. Accordingly, he argued, he did not receive a fair hearing. It is not necessary for the General Division to make specific findings of credibility and to set this out in its decision. It made no error by not doing so. In addition, the weight given to evidence by any witness is not determinative of whether a party to a proceeding received a full and fair hearing. There was no indication that the Applicant was not able to fully present his case, or answer the case against him. So, the Applicant’s argument that he did not have a fair hearing does not have a reasonable chance of success on appeal.
[9] The Applicant also contended that the General Division did not properly consider his testimony. The General Division decision summarized the written and oral evidence. This included the medical reports and the Applicant’s evidence, both written and oral. The Federal Court of Appeal has decided that the tribunal is presumed to have considered all of the evidence before it. Each and every piece of evidence need not be mentioned in the written decision (Simpson v. Canada (Attorney General), 2012 FCA 82). The Applicant produced no specifics that would rebut this presumption. Thus, this is not a ground of appeal that has a reasonable chance of success on appeal.
[10] The Applicant also argued specifically that the General Division decision did not consider his evidence regarding his functional abilities or address this in the decision. The decision set out that the Applicant uses a cane sometimes, and had difficulties with stairs, walking, lifting and sleeping, and described the impact that cleaning pools had on him. This evidence was considered in reaching the decision in this matter. This ground of appeal also does not have a reasonable chance of success on appeal.
[11] The Applicant further submitted that the General Division erred as it did not apply the current Canada Pension Plan Regulations formula to determine whether the Applicant earned substantially gainful income. Counsel for the Applicant is reminded that this Regulation is to be applied only to disability pension applications made after May 2014. The Applicant applied for a Canada Pension Plan disability pension in January 2011. The General Division made no error in not referring to this Regulation. This is not a ground of appeal.
[12] The Applicant contended, in addition, that the General Division decision did not contain sufficient reasons. He did not explain how the reasons were to have been deficient. On reading the decision, I am satisfied that it tells the parties why the decision was made, allows for effective appellate review and provides for public accountability of the decision. This is the function of written reasons (R. v. Sheppard, 2002 SCC 26). The argument does not disclose any ground of appeal that may have a reasonable chance of success on appeal.
[13] The Applicant correctly stated in the application requesting leave to appeal that the General Division was to provide the Applicant with a fair hearing. He alleged that it should have provided the Applicant with “an opportunity to be heard and the reasons for its decision.” The meaning of this ground of appeal is unclear. In Pantic v. Canada (Attorney General), 2011 FC 591, the Federal Court concluded that a ground of appeal cannot be said to have a reasonable chance of success if it is not clear. Therefore, this ground of appeal has no reasonable chance of success.
[14] If the Applicant meant to argue that he did not receive a fair hearing because the hearing was conducted by teleconference rather than in person, his argument also fails. Section 21 of the Social Security Tribunal Regulations permits the Tribunal to conduct hearings in writing, by teleconference, videoconference or other forms of telecommunication, or in person. The General Division Member decides what form the hearing is to take. The Applicant did not suggest that the General Division Member made this decision improperly. He did not allege that he could not present at the hearing, or that anyone conducted himself or herself in such a way that the parties were not able to fully participate in the hearing and present their case.
[15] The Applicant presented two grounds of appeal that may have a reasonable chance of success on appeal. First, he contended that the General Division erred as it misapplied the legal principle set out in Inclima v. Canada (Attorney General), 2003 FCA 117. In that case, the Court concluded that where a claimant has capacity to work, he must show that he was unable to obtain or maintain employment due to his disability. However, a claimant who has a reasonable explanation for not seeking other work (e.g. that his former job was always available to him to return to) may not have to provide evidence of alternate work efforts (see Boyle v. Minister of Human Resources Development, (June 10, 2003), CP18508). In the matter at hand, the General Division set out the legal principle from the Inclima decision, but did not consider any reasonable explanation there may have been for the Applicant not to have tried other work. This may be an error in law, and so this ground of appeal may have a reasonable chance of success on appeal.
[16] If the Applicant wishes to rely on this argument at the hearing of the appeal, he should provide a transcription of the General Division hearing.
[17] Finally, the Applicant contended that the General Division decision contained an error in law as it did not assess the Applicant in a “real world context” as set out in the Villani v. Canada (Attorney General), 2001 FCA 248 decision. The General Division decision did not refer to Villani, nor did it analyse the Applicant’s personal characteristics along with his medical conditions when it decided that he was not disabled under the Canada Pension Plan. This is an error in law. This ground of appeal also has a reasonable chance of success on appeal.
Conclusion
[18] For the reasons set out above, I am satisfied that the Applicant has presented at least one ground of appeal that may have a reasonable chance of success on appeal. The application is granted.
[19] 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.