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Reasons and decision
Persons in attendance
- The Appellant: A. N.
- Counsel for the Appellant: Mark Grossman
- Counsel for the Respondent: Christine Singh
- Interpreter: A. K.
Introduction
[1] The Appellant claimed that he was disabled by chronic neck and back pain and depression when he applied for a Canada Pension Plan disability pension. The Respondent denied the 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 an in person hearing and on April 28, 2015 allowed the appeal and decided that the Appellant became disabled under the Canada Pension Plan (CPP) in December 2013.
[2] On July 16, 2015 the Appellant was granted leave to appeal the General Division decision to the Appeal Division of the Tribunal. He contended that the General Division decision was based on erroneous findings of fact made without regard to the material that was before it, and that he should have been found disabled in 2011 when he stopped working. The Respondent argued that the General Division decision contained no erroneous findings of fact and that the appeal should be dismissed.
Analysis
[3] Counsel for both parties made submissions regarding what standard of review should be applied to the General Division decision in this case. The Appellant’s counsel argued that this appeal involved errors of mixed fact and law, and as such the standard of correctness should be applied, with some deference being given to the General Division decision. Counsel for the Respondent submitted that the Federal Court of Appeal in Canada (Attorney General) v. Jean, 2015 FCA 242 suggested that rather than perform a formal standard of review analysis, the Appeal Division of the Tribunal should look to the governing legislation to determine the amount of deference that is to be shown to the General Division on errors of fact. She argued that the wording of paragraph 58(1)(c) of the Department of Employment and Social Development Act indicates that deference is to be shown to the General Division regarding erroneous findings of fact as such an error is not a ground of appeal unless it was made perversely, capriciously or without regard to the material that was before the General Division.
[4] The leading case on the issue of standard of review 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] In Jean the Federal Court of Appeal seems to suggest that the Appeal Division of the Social Security Tribunal should not subject appeals before it to a standard of review analysis, but should determine whether any grounds of appeal as set out in section 58 of the Department of Employment and Social Development Act should succeed.
[6] The Department of Employment and Social Development Act governs the operation of the Tribunal. Section 58 of the Act states
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.
Counsel for the Appellant argued only that the General Division decision was based on erroneous findings of fact made without regard to the material before it. I must decide if the decision contains such a reviewable error.
[7] First, counsel for the Appellant argued that the General Division finding of fact that the Appellant had capacity to do some sedentary work in 2011 and therefore not disabled at that time was erroneous, and not based on a proper consideration of the evidence. He referred to Dr. Eskander’s report to the Appellant’s insurer on August 20, 2012 and argued that this report was completed for insurance purposes, not for the CPP disability pension application, and it should have been considered in that context as the insurer’s test for disability is different than the test under the CPP. He also referred to the medical report Dr. Eskander filed with the CPP disability pension application, and argued, in essence, that this should have been more persuasive as it was produced with the CPP legislation in mind, not another insurance plan.
[8] In contrast, counsel for the Respondent argued that it is for the General Division, as the trier of fact to hear the evidence and weigh it to reach a decision. It is not for the Appeal Division to reweigh the evidence to reach a different conclusion (see Simpson v. Canada (Attorney General), 2012 FCA 82). Counsel contended that with this argument the Appellant was asking the Appeal Division to reweigh the evidence, which it ought not to do.
[9] Counsel for the Respondent correctly stated the law in this regard. In Simpson, the Federal Court of Appeal stated, clearly, that an appeal body ought not to reweigh evidence, or to substitute its view of the persuasive value of evidence for that of the trier of fact, which was the General Division in this case. This is what the Appellant has asked the Appeal Division to do with this ground of appeal. While I appreciate that the Appellant may disagree with how the General Division weighed the evidence to reach its conclusion, this is not a ground of appeal under section 58 of the Act.
[10] The Appellant also argued that the General Division erred as it did not consider the impact that his depression had on his capacity to pursue a substantially gainful occupation. He acknowledged that the General Division decision referred to a report from the Appellant’s psychiatrist in its summary of the evidence, but argued that it did not consider this in reaching its decision.
[11] In response to this argument, counsel for the Respondent again relied on the Simpson decision, which stated that the trier of fact is presumed to have considered and weighed all of the evidence before it. In addition, counsel argued that the fact that the psychiatrist’s report is referred to in the decision indicates that the General Division considered this evidence.
[12] I agree with the Respondent’s counsel that the General Division is presumed to have considered all of the evidence before it. However, this presumption can be rebutted. In this case, it is not clear to me if the evidence regarding the Appellant’s depression was weighed in reaching the General Division decision. In Newfoundland Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 the Supreme Court of Canada stated that one of the purposes for providing written reasons is so that the parties understand why the decision was made. Without some reference to the Appellant’s depression in its analysis of the evidence I am not persuaded, on balance, that this was considered by the General Division in reaching its decision. I am satisfied that the presumption that all of the evidence was considered has been rebutted. I am also persuaded that the General Division decision made an erroneous finding of fact regarding the Appellant’s capacity to pursue a substantially gainful occupation without regard to all of the material that was before it as it did not consider his depression.
[13] Finally, the Appellant submitted that the General Division decision was based on erroneous findings of fact made without regard to all of the evidence before it because it did not consider his inability to speak or read English or that he only had work experience in physically demanding jobs when it concluded that he had some capacity to work in a sedentary position in 2011. Counsel for the Respondent argued that the General Division decision contained no such error as it referred to the Villani v. Canada (Attorney General), 2001 FCA 248 decision, and considered the real world factors as required by it.
[14] I acknowledge that the General Division decision set out the legal principles in Villani correctly. The decision also set out that the Appellant has no command of English and that his disability would be a barrier to learning it. It did not, however, consider that the Appellant’s only work experience was in physically demanding jobs although the decision acknowledged that he could no longer complete this kind of work. I am persuaded that the General Division decision erroneously concluded that the Appellant would be able to complete a sedentary job without considering all of his personal characteristics, including his work history and his mental illness. The decision was therefore based on an erroneous finding of fact made without considering all of the material that was before the General Division in this regard.
Conclusion
[15] The appeal is allowed as I am persuaded that on balance the General Division decision was based on erroneous findings of fact regarding his capacity to complete a sedentary job and by not considering his mental illness in reaching its decision. Section 59 of the Act provides what remedies can be granted by the Appeal Division on an appeal. In this case, there are evidentiary issues to be resolved. The matter is referred back to the General Division for reconsideration only of the date that his disability began.
[16] To avoid any possibility of an apprehension of bias, the matter should be referred to a different General Division member.