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Reasons and decision
Introduction
[1] The Applicant claimed that she was disabled by depression and anxiety. She applied for a Canada Pension Plan disability pension. The Respondent denied her claim initially and after reconsideration. The Applicant 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 on April 1, 2013. The General Division dismissed the appeal on the basis of the written record on August 19, 2015.
[2] The Applicant requested leave to appeal the General Division decision to the Appeal Division of the Tribunal. She argued that the General Division erred in law and based its decision on an erroneous finding of fact that was made in a perverse or capricious manner or without regard to the material before it. The Tribunal requested that the parties file written submissions to explain how their grounds of appeal fell within the relevant legislation. The Applicant did so; the Respondent requested an extension of time to file submissions, and then consented to leave to appeal being granted.
Analysis
[3] 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 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.
[4] 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). Accordingly I must decide if the Applicant has raised a ground of appeal that falls under section 58 of the Act and that may have a reasonable chance of success on appeal.
[5] First, the Applicant argued that the General Division decision contained an error when it stated that she quit her job. She argued that she did not quit, but was unable to continue to work due to her mental illness. The General Division decision stated that the Applicant quit her job. It also stated that the Applicant began psychiatric treatment shortly after doing so, and the decision was clear that the Applicant received long-term disability benefits when she stopped working. I am not satisfied that the General Division decision was based on an erroneous finding of fact that the Applicant quit her job, rather than having to leave work as a result of mental illness. This ground of appeal does not have a reasonable chance of success on appeal.
[6] The Applicant also argued that the General Division erred as it did not consider that she attempted to return to work in 2009 but could not do so because of her disability. The General Division decision did not contain this information. It is not necessary for the decision to set out each and every piece of evidence and argument that was presented to it (Simpson v. Canada (Attorney General), 2012 FCA 82). However, the decisions should refer to the significant evidence that supports the claimant’s position. Since attempts to return to work may be significant in determining whether the Applicant was unable to obtain or maintain employment due to her disability, it should have been noted. This argument points to a ground of appeal that may have a reasonable chance of success on appeal.
[7] The Applicant argued, further, that the General Division erred as it did not refer to the medical evidence that stated that she was unable to return to work of any kind because of her disability. For the reasons set out above, I am satisfied that this ground of appeal may also have a reasonable chance of success on appeal.
[8] The Applicant also contended that the General Division made an erroneous finding of fact in a perverse manner when it concluded that the stability of her medication indicated that her mental illness was not severe. The General Division decision summarized the Applicant’s treatment including medication and regular therapy appointments. It noted that she had not been hospitalized and that one doctor had observed some improvement in her condition. After reviewing this evidence the General Division concluded that her disability was not severe. This may have been an erroneous finding of fact made in a perverse or capricious manner or without regard to all of the material that was before the General Division as none of this evidence describes the severity of the Applicant’s disability. This ground of appeal may have a reasonable chance of success on appeal.
[9] Finally, the Applicant submitted that the General Division erred as it did not consider whether, on a prolonged basis, she would be able to do any substantially gainful work on a regular basis. In order to be found to be disabled under the Canada Pension Plan a claimant must be found to suffer from a disability that is both severe and prolonged. As the General Division concluded that the Applicant’s disability was not severe, it made no error in not considering if it was prolonged. Therefore, this argument is not a ground of appeal that may have a reasonable chance of success on appeal.
Conclusion
[10] The Application is granted as the Applicant presented at least one ground of appeal under section 58 of the Act that may have a reasonable chance of success on appeal.
[11] 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.