Canada Pension Plan (CPP) disability

Reasons and decision

Persons in attendance

Appellant: R. B.

Appellant ’s representative: Tamika Francis

Appellant’s Daughter: B. B.

Respondent’s Representative: Faiza Ahmed Hassan

Articling Student: Justine Seguin

Introduction

[1] In a decision issued on October 7, 2015, the General Division of the Social Security Tribunal of Canada, (the Tribunal), determined that the Appellant was not eligible to receive a disability pension under the Canada Pension Plan, (the CPP). She requested leave to appeal from the decision and on March 23, 2016, the Appeal Division of the Tribunal granted leave to appeal.

[2] This appeal proceeded by videoconference for the following reasons:

1. The complexity of the issue(s) under appeal.
2. The information in the file, including the need for additional information.
3. The form of hearing is the most appropriate to address inconsistencies in the evidence.
4. The fact that the appellant or other parties are represented.
5. The availability of videoconference in the area where the Appellant resides.

Issue

[3] The sole issue before the Appeal Division is whether the General Division had dealt adequately with the substantive issues necessary to arrive at its conclusions relating to the Appellant’s “real world” circumstances

The law

[4] The grounds of appeal are set out at subsection 58(1) of the Department of Employment and Social Development Act (DESD Act). They are that, the General Division:-

1. a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
2. b) erred in law in making its decision, whether or not the error appears on the face of the record; or
3. c) 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.

Submissions

[5] On the behalf of the Appellant, her representative submitted that the General Division made unfounded assumptions about the Appellant’s ability to be gainfully employed in the real world without properly assessing the evidence that was before it. In so doing 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. The Appellant’s representative took the position that the Appeal Division should allow the appeal and refer the matter back to the General Division.

[6] The Respondent’s representative submitted that, read in context, the General Division decision is adequate and does not demonstrate any error of either fact or law. She argued that as assigning weight to evidence is properly the role of the General Division, the Appeal Division should show deference to the decision as a whole, which decision was clear and intelligible and contained no error. Accordingly, the Appeal Division should dismiss the appeal.

Analysis

[7] The sole issue in this appeal is whether the General Division “grappled’ with the live substantive issues before determining that the Appellant’s age, level of education, language proficiency and past work and life experiences were not barriers to her future employment prospects.

[8] At paragraph 16 of the decision, the General Division sets out the Appellant’s, so called, “Villani” factors. These, as set out in Villani v. Canada (Attorney General), 2001 FCA 248, include an Appellant’s age, level of education, language proficiency, and past life and work experience. The General Division noted the Appellant’s age and date of birth; that she had completed high school and held a Health Care Diploma from a programme at a Career College. The General Division did not at this juncture refer to her work history. The General Division described the Appellant in the following terms: -

1. [16] The Appellant is;
   1. a) fifty one years old and was born on X X, X;
   2. b) has education at a high school level and completed a Health Care Diploma program at Career College;
   3. c) The Appellant appears very normal and was highly cognitive, alert and articulate with her communication and recollection of past and present during the hearing;
   4. d) The Appellant was very good with comprehension of and communication in English with good listening skills.

[9] The General Division then set out its conclusions concerning her real world circumstances, stating at paragraph 17 that :-

[17] The Tribunal has determined that her age, level of education, language proficiency, and past work and life experiences are not barriers to her future employment prospects.

[10] The Appellant’s representative submitted that the General Division had not performed an analysis of the Appellant’s real world circumstances that was sufficient to allow it to arrive at this conclusion.

[11] The Respondent’s representative urged upon the Appeal Division the view that in addition to the factors discussed in paragraph 16, previous paragraphs of the decision had adequately set out the Appellant’s work history and skill set and that these factors were not considered in the analysis of the real world circumstances. As well, the Respondent’s representative argued that the audio recording of the hearing shows that the General Division had carried out the required analysis. She reminded the Appeal Division that its role is not to reweigh the evidence and that it should bear in mind that in Villani the Federal Court of Appeal was addressing the inconsistent application of paragraph 42(2)(a) of the CPP. Additionally, the Respondent’s representative submitted that the Villani factors must be considered in light of the Appellant’s onus to establish that she meets the definition of a “severe and prolonged” disability.

[12] Both parties sought to relate the Appellant’s attempt at modified work to the assessment of the Villani factors with the Appellant’s representative arguing that the General Division improperly failed to assess how, given her difficulties, the Appellant could pursue any substantially gainful occupation. For her part, the Respondent’s representative argued that the General Division had looked at the evidence in order to determine whether there was any support for a finding that she could not perform physical work; and that it had found no such evidence. She made the further argument that the General Division had found that the Appellant’s attempts at modified work had not been true efforts, as she basically had been performing her old job.

[13] With respect, the Appeal Division finds that these arguments did not address the question on which leave to appeal was granted. The issue is whether the General Division had made a sufficient analysis of the Appellant’s real world circumstances prior to concluding that her age, level of education, language proficiency and past work and life experience were not barriers to future employment. The Appeal Division finds that it did not. The decision rests largely on the Appellant’s failure to attempt modified or alternate work (see: paragraphs 19 through 23). While this and the related findings may by themselves have provided a sufficient basis for a decision, the General Division was first required to find that the Appellant retained work capacity before it came to its conclusion about her work attempts: Inclima v. Canada (Attorney General), FCA 2003 117. The Appeal Division is not persuaded that the General Division conducted an analysis of the Appellant’s personal circumstances before it made its determination.

[14] In reaching this conclusion, the Appeal Division looks to Garrett v. Canada (Minister of Human Resources Development), 2005 FCA 84, for support. In Garrett, the Federal Court of Appeal not only stated that “a failure to cite or to conduct an analysis in accordance with the principles set out in Villani, supra is an error of law”; Malone, J.A. offered some guidance as to what would constitute a proper analysis, namely that:-

[3] In the present case, the majority failed to cite the Villani decision or conduct their analysis in accordance with its principles. This is an error of law. In particular, the majority failed to mention evidence that the Appellant's mobility problems were aggravated by fatigue and that she would have to alternate sitting and standing; factors which could effectively make her performance of a sedentary office or related job problematic. This is the 'real world' context of the analysis required by Villani.

[15] The General Division did recite the Appellant’s medical conditions; and at paragraph 15 it did set out the appropriate test. Also, the General Division set out some of the relevant Villani factors at paragraph 16. However, the General Division did not conduct the type of analysis contemplated by Garrett before it stated its conclusion that there were no barriers to the Appellant engaging in any substantial occupation. In other words, the General Division did not analyse the Villani factors in relation to the Appellant’s ability to pursue any substantially gainful occupation. This, per Garrett, is an error of law.

[16] The Appeal Division is not persuaded that it should have to go outside of the decision to the recording of the transcript to find that the General Division did turn its mind to the proper analysis. At best, listening to the recording of the hearing can help the Appeal Division identify the issues that were raised at the hearing; it does not allow the Appeal Division to be satisfied that the General Division made the proper analysis. Accordingly, the Appeal Division allows the appeal.

Conclusion

[17] The appeal is allowed.

Decision

[18] The Appellant’s representative submitted that the appropriate remedy would be for the Appeal Division to refer the matter back to the General Division for redetermination. In light of the basis for allowing this appeal, the Appeal Division concurs. Therefore, pursuant to section 59 of the DESD Act, the Appeal Division refers the matter back to the General Division for redetermination.