Canada Pension Plan (CPP) disability

Persons in attendance

1. Appellant: D. L.
2. Representative of the Respondent: Renée Darisse

Introduction

[1] On March 13, 2013, the Review Tribunal (RT) determined that a disability pension under the Canada Pension Plan was not payable.

[2] An application for leave to appeal the RT decision was filed with the Appeal Division of the Social Security Tribunal (Tribunal) on June 3, 2013 and leave to appeal was granted on March 20, 2015.

[3] The Appellant had raised a number of grounds of appeal.  However, the only ground for which leave to appeal was granted was whether a fair hearing was accorded to the Appellant; i.e. whether the RT failed to observe a principle of natural justice.

[4] This appeal proceeded by videoconference for the following reasons:

1. a) The fact that the credibility of the parties is not a prevailing issue.
2. b) The availability of videoconference in the area where the appellant resides.
3. c) The requirements under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
4. d) The Appellant’s request for an oral hearing.
5. e) The Respondent’s request for a decision on the record or, if not, a videoconference or teleconference hearing.

Issue

[5] Whether the RT failed to observe a principle of natural justice by not according the Appellant a fair hearing, more specifically, by not giving the Appellant sufficient opportunity to be heard or being prejudiced against the Appellant’s case.

The law

[6] According to subsection 58(1) of the Department of Employment and Social Development Act (DESD Act) the only grounds of appeal are that:

1. a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
3. 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.

[7] For our purposes, the decision of the RT is considered to be a decision of the General Division.

[8] Section 59(1) of the DESD Act sets out the powers of the Appeal Division.  It states:

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.

Submissions

[9] The Appellant submitted that she was not given a fair hearing in that she did not have sufficient opportunity to be heard and the RT was prejudiced against her case. Specifically, the Appellant argued that:

1. a) She was not given an opportunity to explain why she did not return to physiotherapy;
2. b) She did not have time to refer to several medical documents in the file;
3. c) She was told by the RT not to rehash the information in the file in order to save time;
4. d) There is a negative view against people with back problems and mental disabilities;
5. e) Her case was not assessed on a unique basis but as a stereotype; and
6. f) Her disability insurer has asked her to appeal the RT decision.

[10] The Respondent submitted that where the Appellant alleges that she was not given an opportunity to be heard or the panel was prejudiced, that this should have been raised at the first opportunity, which was at the RT hearing itself.  If this is not done, then the Appellant is taken to have waived the right to bring this up at a future point.  In addition, the Respondent argued:

1. a) There is insufficient evidence to find that the RT did not give the Appellant a sufficient opportunity to be heard;
2. b) There is insufficient evidence to support a finding that the RT was prejudiced or biased; and
3. c) The RT did not make an errors of law or errors in findings of facts of the sort that are appealable.

Standard of review

[11] In assessing whether, as submitted by the Appellant, the RT failed to observe a principle of natural justice, the Appeal Division of the Tribunal must first determine the appropriate standard of review to be applied to the RT decision.

[12] The Appellant made no submissions in this regard.  The Respondent submitted that “correctness” is the appropriate standard by which the Tribunal should review the RT decision, as the issue involves alleged breaches of natural justice.  Therefore, the Respondent submitted that the Tribunal owes no deference to the RT’s decision.

[13] I concur with these submissions.  In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada determined that there are only two standards of review at common law in Canada: reasonableness and correctness.  Questions of law, jurisdiction or natural justice, generally, are determined on the correctness standard, while questions of fact and of mixed fact and law are determined on a reasonableness standard.  When applying the correctness standard, a reviewing body will not show deference to the decision-maker’s reasoning process and instead, will conduct its own analysis, which could involve substituting its own view as to the correct outcome.

[14] The applicable standard of review will depend upon the nature of the alleged errors involved.

[15] Here the alleged error is a failure to observe a principle of natural justice. Therefore, the applicable standard of review is correctness.

Analysis

Alleged Breaches of Natural Justice

[16] The Appellant stated that she had the impression at the RT hearing that she could not answer some questions fully, that the RT did not attempt to understand the meaning of some of her answers, that she was not able to elaborate on her answers, that questions asked by the RT showed they were prejudiced against her case, and that it is difficult for a person with anxiety (as she has) to fight for oneself when one has the feeling of not being heard or understood.

[17] When asked what the RT panel members said or did, specifically, the Appellant pointed to the following:

1. a) At the outset of the hearing, the Chair of the RT panel stated that she (the Appellant) had presented a great deal of information in the file.  The Appellant took this to mean that she had done a good job with that information. The Chair said that the Appellant did not have to “rehash” the medical history because it was on hand. This was done at the beginning of the hearing before anyone was invited to speak.
2. b) The statement made by the Chair, to the best of the Appellant’s recollection, was: “You have done a good job of submitting a lot of information, and we do not need you to rehash all the medical information, as we have a lot of that already on file.”
3. c) This preliminary statement of the Chair had a big influence on the Appellant for the whole hearing.  She tried to shorten her answers and not go into details on things that she had already submitted in the documents.  She had brought other medical information, of medical appointments and physiotherapy appointments attended, but she did not submit them at the hearing.  Her anxiety had been getting worse over time, and the comments by the Chair worsened her anxiety at the hearing and influenced the presentation of her case.
4. d) A member of the RT panel asked her during the hearing whether she would be able to consider working at Walmart as a greeter.  To the Appellant, this showed that the panel did not understand her anxiety disorder, because if they did, they would have known that she would never be able to do that kind of job.
5. e) Because she was turned down for a disability pension, she believes that her case was not assessed on a unique, or individual, basis but rather as a stereotype.  If the RT had considered the details of her case, the medical reports and her illness, they would not have turned her down.

[18] As for the specific allegations in subparagraphs [9](a) to (f), the Appellant stated the following:

1. a) Physiotherapy: She was asked one question: “Are you seeing the physiotherapist now?” She responded and it ended there. She had intended to elaborate but did not because the Chair had said she did not have to rehash the information in the file.
2. b) Information in the file and not rehashing that information: She felt, because of the Chair’s preliminary comment, that the RT had sufficient facts and to save time she did not refer to much of that information.
3. c) Saving time at hearing:  The duration of the hearing was about one and a half hours, there was no break or adjournment, and she was the only person who testified.  She was not asked to stop or cut short what she said during the hearing.
4. d) Negative views and stereotype: The Appellant stated that she is not accusing anyone on the RT panel, in particular, of being prejudiced against her case.  It is a general impression on her part, and she assumes that everyone has some prejudices. The question that one panel member asked – if she would be able to consider a job like Walmart greeter – is an example of what the Appellant means by negative views and stereotype. She responded to it by saying that she could not do a job like that because being the center of attention is something she fears a lot.
5. e) Disability insurer asked for appeal of RT decision: The Appellant is not sure that she would have appealed the RT decision, if her disability insurer had not required it.

[19] During the hearing before the Appeal Division, the Appellant was given every opportunity to make her submissions and elaborate on her arguments.  She was also invited to ask questions and provide reply submissions to the points made by the Respondent.

[20] After the hearing, the Appellant filed a copy of an article she referred to during the hearing and the Respondent filed a copy of a Federal Court decision to which it had referred.

When a Breach of Natural Justice Must be Raised

[21] A breach of natural justice must be brought up at the earliest practicable opportunity and if no objection is made at the hearing, the party alleging the breach is taken to have provided an implied waiver of any perceived breach of unfairness: Benitez et al v. Minister of Citizenship and Immigration, 2006 FC 461, at paras. 204-220.  The earliest practical opportunity arises when the applicant is aware of the relevant information and it is reasonable to expect him or her to raise an objection: Ibid. at para 221.   However, the doctrine of waiver does not preclude an applicant from arguing that the manner in which the hearing was conducted breached the duty of fairness by reason of, for example, badgering in cross-examination: Ibid. at para 222.

[22] The Appellant did not allege that there was a breach of natural justice during the RT hearing, at any point.  She stated at the appeal hearing that her anxiety at the RT hearing was heightened and that she found it very difficult to take a stand for herself.

[23] The Appellant first raised allegations of breach of natural justice in her application for leave to appeal.

[24] While the Tribunal empathizes with the Appellant, it finds that the Appellant did not bring up a breach of natural justice at the earliest practical opportunity. However, the doctrine of waiver does not preclude the Appellant from arguing that the manner that the hearing was conducted breached the duty of fairness by reason of badgering in cross-examination or other similar circumstance.

[25] By the Appellant’s description of the comments and questions of the RT at the hearing, there was no evidence of badgering of the Appellant during the hearing.  There was a preliminary comment and a question during the hearing which influenced the Appellant, but these fall well short of badgering or the like.

Nature of the Breaches Alleged

[26] While the Appellant did not raise any fairness issues at the RT hearing and, therefore, can be taken to have waived any perceived breach of unfairness, the Tribunal will discuss the alleged breach(es) of natural justice.

[27] The Appellant has alleged that she was denied the right to fully present her case and that there was prejudice against her case.

[28] An appellant has the right to expect a fair hearing with a full opportunity to present his or her case before an impartial decision-maker: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at paras 21-22.

[29] The Respondent argued that the Appellant has not adduced sufficient evidence, by way of affidavit or otherwise, to support the allegation that she was prevented from fully presenting her case to the RT or that any alleged defect in the proceedings had an impact on the RT’s decision. Further, the Respondent submitted that: The preliminary comment appears to be part of a routine preliminary statement by a panel at the beginning of a hearing. The question about Walmart was in the context of whether the Appellant had considered alternate work, and there was nothing abnormal or untoward about it. The RT did not prevent her from filing any documentary evidence or giving any testimony.  The RT did not ask her to shorten her presentation or rush her through the hearing.

[30] I have reviewed in detail the appeal file before the RT, and it is clear that the RT had before it many medical reports (physiotherapists, generalist and specialist physicians, etc.), the Appellant’s application, questionnaire and other statements, her request for reconsideration, and documents relating to her education and employment history.  The RT also summarized, in its written decision, the Appellant’s testimony about her education, employment history, reasons for stopping work, and the symptoms and treatment of her illness. The opportunity for the Appellant to present her case did not depend solely on her oral testimony at the RT hearing.

[31] In Arthur v. Canada (A.G.), 2001 FCA 223, the Federal Court of Appeal stated that an allegation of prejudice or bias of a tribunal is a serious allegation.  It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of the applicant.  It must be supported by material evidence demonstrating conduct that derogates from the standard.  The duty to act fairly has two components: the right to be heard and the right to an impartial hearing.

[32] Even taking the Appellant’s statements about the RT’s comments and questions during the RT hearing - as described in subparagraphs 17(a), (b) and (d), above - as proved, the evidence falls short of showing that the RT did not give the Appellant a sufficient opportunity to be heard or that the RT was prejudiced or biased.  While the Appellant may have had the impression that she could not elaborate on her answers, or that the RT did not attempt to understand the meaning of some of her answers, or that a question asked by the RT showed prejudice against her case, the evidence does not demonstrate that the conduct of the RT derogated from the standards of the right to be heard and the right to an impartial hearing.

[33] For the reasons given above, I conclude that the RT did not fail to observe a principle of natural justice by not according the Appellant a fair hearing.

Conclusion

[34] The appeal is dismissed.