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Introduction
[1] The Appellant claimed that he was disabled by arthritic and knee conditions when he applied for a Canada Pension Plan disability pension. The Respondent denied his claim initially and after reconsideration. The Appellant appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals. The appeal was transferred to the General Division of the Social Security Tribunal pursuant to the Jobs, Growth and Long-term Prosperity Act. The General Division held a hearing and dismissed the appeal.
[2] The Appellant was granted leave to appeal to the Appeal Division of the Tribunal on the basis that the General Division may have based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it when it concluded that the Appellant had not accessed alternate treatment for his condition because it was not serious enough to warrant this.
Standard of review
[3] The Appellant did not address what standard of review should be applied to the General Division decision. The Respondent submitted that this appeal concerns an alleged error of fact and law and as such the standard of review to be applied is that of reasonableness.
[4] The leading case on this is Dunsmuir v. New Brunswick 2008 SCC 9. In that case, the Supreme Court of Canada concluded that when reviewing a decision on questions of fact, mixed law and fact, and questions of law related to the tribunal’s own statute, the standard of review is reasonableness; that is, whether the decision of the tribunal is within the range of possible, acceptable outcomes which are defensible on the facts and the law. The correctness standard of review is to be applied to questions of jurisdiction, and questions of law that are of importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise.
[5] This appeal is regarding an alleged error of fact. As such, the standard of review to be applied is reasonableness.
[6] Accordingly, I must decide if this appeal the General Division decision contained such an error such that rendered the decision unreasonable, and if so what remedy should be granted.
[7] This appeal proceeded on the basis of the written record for the following reasons:
- a) The issue under appeal was not complex;
- b) The requirements under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit;
- c) the fact that the Appellant resides in Portugal and would not be able to attend a videoconference or in person hearing; and
- d) the nature of the submissions received from the Respondent, and that the Appellant wrote that he had no further submissions to file with the Tribunal.
[8] I have considered the Appellant’s application for leave to appeal and the Respondent’s submissions in reaching my decision in this matter.
Analysis
[9] 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 (see the Appendix to this decision)**. Leave to appeal was granted on the basis of one ground of appeal, that the General Division decision may have based its decision on an erroneous finding of fact made without regard to the material before it. The Appellant contended that the General Division conclusion that as he had not tried other treatments for his disease it had not progressed to the point where he would have significant functional limitations was erroneous, and made without regard to the material before it. He filed no submissions to support this.
[10] The Respondent argued that the General Division decision was not based on any erroneous findings of fact, but that on the limited medical evidence before it the General Division was not satisfied that the Appellant was disabled as that term is defined in the Canada Pension Plan.
[11] In its detailed submissions, the Respondent has correctly set out the law that is applicable in this case. The Supreme Court of Canada, in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62, concluded that when reviewing a decision to decide if it was reasonable, a decision maker must not analyse the reasons and the result separately. Rather, the review is an organic exercise in which the reasons must be read together with the outcome to determine if result falls within the range of possible acceptable outcomes. In this case, I have reviewed the materials filed by both parties for this appeal and the General Division decision.
[12] When examined as a whole, I am not persuaded that the decision was unreasonable. It outlined the Appellant’s condition, and the treatment accessed at the relevant time. It considered the evidence presented and the arguments advanced by both parties. The statement that further treatments were not attempted was only one of a number of factors considered to reach the conclusion that the Appellant’s condition was not severe at the minimum qualifying period (the date that the Appellant must be found to be disabled by to receive a Canada Pension Plan disability pension).
[13] Even if the General Division erred in stating that this lack of accessing treatment indicated that his condition was not severe, I am not persuaded by the Appellant that this rendered the entire decision unreasonable. The decision contained a summary of the evidence that was before it, weighed the evidence and reached a conclusion that falls within the range of possible acceptable outcomes based on the facts and the law.
Conclusion
[14] The appeal is dismissed for these reasons.
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.
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.