Canada Pension Plan (CPP) disability

Decision

[1] The Appeal Division grants leave to appeal.

Introduction

[2] The Applicant seeks leave to appeal from the decision of the General Division issued on January 22, 2016. In its decision the General Division dismissed her appeal of a reconsideration decision that held that she was not entitled to a Canada Pension Plan (CPP) disability pension. The Applicant began receiving a CPP retirement pension in September 2012. She applied to cancel the retirement pension in favour of a CPP disability pension. Pursuant to subsections 66.1(1) of the CPP and 46.2 (2) of the CPP Regulations she could do so, only if she was found to have become disabled in August 2012 (the month before her retirement pension commenced).

[3] The grounds of the Application for leave to appeal, (the Application) are:-

1. That the General Division erred in law by failing to consider “real world factors” in its analysis. The Decision does not mention the Villani factors.
2. The General Division erred in law by failing to consider the Applicant’s conditions in their entirety. The General Division did not consider whether her cancer diagnosis could assist the Applicant in establishing that she was disabled prior to August 31, 2012.the MQP.
3. The General Division erred by basing its decision an erroneous finding of fact by concluding that the Applicant did not suffer from severe osteoarthritis.

Issue(s)

[4] The Appeal Division must decide whether the appeal would have a reasonable chance of success.

The law

[5] The applicable statutory provisions governing the granting of Leave are found at ss. 56(1), 58(1), 58(2) and 58(3) of the DESD Act. Ss. 56(1) provides that an Applicant must first seek and obtain leave to bring his or her appeal to the Tribunal’s Appeal Division which, following ss. 58(3), must either grant or refuse leave appeal.

[6] The grounds of appeal are set out at ss.58(1) which provides that the only grounds of appeal are the following:

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] Leave to appeal a decision of the General Division of the Tribunal is a preliminary step to an appeal before the Appeal Division.^{Footnote 1} In Tracey v. Canada (Attorney General) 2015 FC 1300 the Federal Court observed that the current statutory regime sets out at subsection 58(2) the test that the Appeal Division must apply when determining an application for leave to appeal. “Leave to appeal is refused if the SST-AD is satisfied that the appeal has no reasonable chance of success.”

[8] The question for the Appeal Division is, in the context of the present statutory regime, what constitutes a reasonable chance of success? In previous decisions, the Appeal Division has held that to grant leave the Appeal Division must first find that, were the matter to proceed to a hearing, at least one of the grounds of the Application relates to a ground of appeal and that there is a reasonable chance that the appeal would succeed on this ground. In Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41 as well as in Fancy v. Canada (Attorney General), 2010 FCA 63, the Federal Court of Appeal equated a reasonable chance of success to an arguable case. Thus, the Appeal Division does not have to be satisfied that success is certain.

Analysis

[9] The Applicant points to three circumstances that she submits points to errors in the General Division’s decision. First, she raises the absence of any mention of Villani^{Footnote 2} or consideration of the factors mentioned in the decision that the Federal Court of Appeal stated should be considered when assessing whether an applicant meets the criteria for severe and prolonged disability. Counsel for the Applicant submits that this is an error of law upon which the appeal could have a reasonable chance of success.

[10] The Appeal Division agrees that the General Division erred in law when it failed to refer to or consider Villani in its analysis of severe and prolonged disability. However, this is not necessarily the end of the enquiry. As noted in Bartucci, Marco v. Canada (Minister of Employment and Social Development, AD 13-148, Ross, October 2014 cited in V.T. v. Canada (Minister of Employment and Social Development, 2014 SSTAD 403 (CanLII) in Giannaros v. Canada (Minister of Social Development), 2005 FCA 18, the Federal Court of Appeal indicated that such a finding may not be fatal when the decision is taken as a whole.

[11] In Giannaros, the Federal Court of Appeal opined that whenever the decision maker is not persuaded that there is a serious medical condition, it is not necessary to undergo the “real world approach” analysis. Given that the Applicant has raised the argument that, prior to August 31, 2012, her medical condition of osteoarthritis was a serious one and relies on the fact that hip replacement surgery had been scheduled the Appeal Division is satisfied that she has raised an arguable case in this respect.

[12] The Appeal Division is not persuaded by the Applicant’s second argument that the General Division did not consider her conditions cumulatively. It is clear from the decision that the General Division did turn its mind to the effect of the Applicant’s cancer diagnosis on her ability to pursue regularly any substantially gainful occupation on or before the August 31, 2012. It is also clear that the Appellant disagrees with the conclusion of the General Division that the diagnosis played no part in the Applicant’s inability to meet the definition. However, disagreement with the conclusion of the General Division is not a ground of appeal. Leave to appeal cannot be granted on this basis.

[13] The Applicant also argues that the General Division based its decision on an erroneous finding of fact, namely that her osteoarthritis was not severe. The Applicant relies on the recommendation of her orthopaedic surgeon that she undergo hip replacement surgery. She argues that it is self-evident from this recommendation that her condition was severe. The Appeal Division finds that she has raised an arguable case in this regard.

Conclusion

[14] Based on the above the Application is granted.

[15] The grant of leave does not presuppose the outcome of the appeal.

[16] Notwithstanding that leave to appeal has been granted, the parties may wish to turn their minds to the fact that the Applicant continued to work as a Registered Practical Nurse until January 18, 2013.