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Reasons and decision
Overview
[1] This is an appeal of the decision of the General Division dated October 2, 2015, in respect of the Appellant’s claim for a Canada Pension Plan disability pension. The General Division determined that the Appellant was not eligible for a disability pension under the Canada Pension Plan, as it found that his disability was not “severe” at his minimum qualifying period of March 31, 2013, the month prior to the month when he began receiving a retirement pension.
[2] The Appellant sought leave to appeal the decision of the General Division in part on the ground that the General Division had based its decision on an erroneous finding of fact that it made without regard for the material before it, and in particular, that he had worked from March 2013 to June 2013, when he alleged that in fact he had last worked on June 1, 2012. I granted leave to appeal on January 13, 2016, satisfied that the appeal had a reasonable chance of success.
[3] On January 26, 2016, the Appellant advised the Social Security Tribunal that he would be proceeding with an application to rescind or amend the decision of the General Division. The Appeal Division thereby placed the appeal into abeyance, pending the outcome of the application to rescind or amend the decision of the General Division.
[4] On February 24, 2016, counsel on behalf of the Respondent filed submissions. The Respondent consents to the appeal being remitted to the General Division for a hearing de novo.
[5] The Appeal Division conducted a teleconference hearing on March 1, 2016, to determine whether the Appellant preferred to proceed with the hearing of this appeal, as it could then preclude the Appellant from pursuing the application to rescind or amend the decision of the General Division. The Appellant preferred to proceed with the appeal and have the matter sent back to the General Division for a re-hearing on the merits of the matter, particularly so he can clarify some issues, address his medical history and review some of the medical records that may not have formed part of the hearing file before the General Division.
[6] Having determined that no further hearing is required, the appeal before me is proceeding pursuant to subsection 43(a) of the Social Security Tribunal Regulations.
Submissions
[7] Counsel for the Respondent cites the following paragraphs of the decision of the General Division:
- at paragraph 17, the General Division noted that the Appellant’s application for a Canada Pension Plan disability pension indicated that the Appellant attempted to return to work between March and June 2012;
- at paragraphs 36 and 37, the General Division determined that the Appellant had testified that he had returned to work between March and June 2013; and
- at paragraph 48, the General Division held that, “The Tribunal accords significant weight to the fact that the Appellant continued to maintain gainful employment beyond his [minimum qualifying period] (his MQP being March 2103).
[8] Counsel for the Respondent submits that there appears to be a significant discrepancy in the evidence surrounding when the Appellant undertook his return to work activities. Counsel submits that this discrepancy is particularly import because the General Division based its decision, in part, on the alleged post-minimum qualifying period work activity of the Appellant.
[9] Counsel for the Respondent submits that the General Division should have explained why it accepted the Appellant’s testimony that he worked in 2013 as opposed to the documentary evidence that he worked in 2012. By not addressing why it relied on the testimony of work activity in 2013 as opposed to the documentary evidence which showed work activity in 2012, the General Division failed to explain to both parties why it made the decision that it did. The Respondent is of the view that the General Division therefore contravened subsections 58(1)(b) and (c) of the DESDA.
[10] The Respondent consents to the Appeal Division remitting the matter back to a new member of the General Division for a hearing de novo.
Analysis
[11] As I noted in my leave decision, there was conflicting evidence before the General Division as to when the Appellant might have returned to work. The General Division accepted the Appellant’s viva voce evidence that he had returned to work between March and June 2013, although there was evidence before it that the Appellant had last worked in June 2012.
[12] In dismissing the appeal, the General Division “accord[ed] significant weight to the fact that the [Appellant] continued to maintain gainful employment beyond his [minimum qualifying period]”, yet had the General Division accepted the documentary evidence rather than the Appellant’s viva voce evidence, then it could not have found that the Appellant had returned to work after his minimum qualifying period.
[13] The General Division was under a duty to address the discrepancy in the evidence, even if it had been provided by the Appellant. In failing to do so, this may have resulted in the General Division basing its decision on an erroneous finding of fact.
[14] The appropriate disposition is to remit the matter to a new member of the General Division for a hearing de novo.
Conclusion
[15] The appeal is allowed and the matter remitted to a new member of the General Division for a hearing de novo, to be scheduled on a preemptory basis.