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Reasons and decision
Decision
Leave to appeal is refused.
Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division (GD) of the Social Security Tribunal (SST) dated April 19, 2016. The GD had earlier conducted a hearing by teleconference and determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan (CPP), as it found that her disability was not “severe” prior to the minimum qualifying period (MQP) of December 31, 2015.
[2] On July 7, 2016, within the specified time limitation, the Applicant filed an application with the Appeal Division (AD) requesting leave to appeal. For this application to succeed, I must be satisfied that the appeal has a reasonable chance of success.
The law
[3] According to subsection 3(1) of the Social Security Tribunal Regulations (SST Regulations), SST members must conduct proceedings as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
[4] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the AD may only be brought if leave to appeal is granted, and the AD must either grant or refuse leave to appeal.
[5] Subsection 58(1) of the DESDA sets out that the only grounds of appeal are the following:
- (a) The GD failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) The GD erred in law in making its decision, whether or not the error appears on the face of the record; or
- (c) The GD 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.
[6] Subsection 58(2) of the DESDA provides that “leave to appeal is refused if the AD is satisfied that the appeal has no reasonable chance of success.”
[7] Some arguable ground upon which the proposed appeal might succeed is needed for leave to be granted: Kerth v. Canada.Footnote 1 The Federal Court of Appeal has determined that an arguable case at law is akin to determining whether legally an appeal has a reasonable chance of success: Fancy v. Canada.Footnote 2
[8] I need to be satisfied that the reasons for appeal fall within any of the grounds of appeal and that the appeal has a reasonable chance of success, before leave can be granted.
Issue
[9] Does the appeal have a reasonable chance of success?
Submissions
[10] In her application requesting leave to appeal, the Applicant made the following submission, which I reproduce here in full:
I had previously indicated on the Hearing Information Form from Income Security that I would have a witness: my common-law spouse, Steve Webb, who has firsthand knowledge of, and experience with, my disability. He took the day off work to participate in and support me during my teleconference only to be told that he would not be allowed to participate. Not only could he not participate, he could not be in the same room, and in fact was made to wait in a separate room until called upon to answer questions. I was dismayed and disappointed by this turn of events; as my spouse, I relied on him not only for emotional support, but also to remember things that I might not, as a result of my poor short-term memory and difficulty concentrating. This call was an emotional ordeal for me and I looked to him to help me articulate my thoughts, which can become jumbled and distracted in new or stressful situations. As it stands, neither of us has any record of what was said, or omitted, and I fear that my elevated stress level might have prevented me from explaining myself as well as I could have. For this reason I feel that my opportunity to properly represent myself and my case has been compromised. I respectfully request the opportunity to repeat the teleconference interview, with my witness present.
Analysis
[11] Although she did not frame it as such, the Applicant is essentially arguing that the GD failed to observe a principle of natural justice when it ordered her spouse out of the room while she delivered her testimony. She claims that she was unfairly denied an opportunity to present her case to the fullest.
[12] The practice of witness exclusion has been long entrenched in Common Law and has been widely adopted by Canadian administrative tribunals. At that level, it has been endorsed by the Federal Courts on numerous occasions.Footnote 3
[13] Witness exclusion serves a clear rationale where a dispute involves an assessment of credibility, as it often does in disability claims. Where witnesses are on opposing sides of the proceedings, they are prevented from ascertaining points of difference between their testimonies and shaping their own evidence to better advantage. Where witnesses are on the same side of the proceedings, as was the case with the Applicant and her spouse, the later witness is deprived of the opportunity to tailor his or her testimony to correspond with the testimony of the earlier witness. None of this affects the absolute right of a party who is also a witness on her own behalf know the case against her and be in attendance during the entire hearing.
[14] Unless otherwise specified by statute, it is left to the discretion of an administrative tribunal whether to order witness exclusion. As the SST Regulations give wide latitude to SST members as to how to conduct their hearings, I am reluctant to interfere with a witness exclusion order unless it raised the potential for greater procedural unfairness, but I see no indication that this happened here. While I appreciate that the Applicant was anxious in testifying about her medical history and the impact of her impairments on her capacity to work, I must note that her spouse was nearby and, if not in the room with her, he was in the same house.
[15] Having listened to segments of the hearing, I surmise that any exclusion order must have been made at the outset of the proceedings, prior to the activation of the teleconference recording feature. I am unsure whether the GD explained to the Applicant the rationale for excluding her spouse, and it would have been preferable had the order, assuming it was made explicitly, been part of the formal proceedings and included in the recording. I should also note that there was no reason for the Applicant’s spouse to be excluded during the GD member’s introductory remarks, in which he discussed the purpose, format and issues of the hearing. All that being said, these lapses were minor and, in my view, did not affect the overall fairness of the proceedings. I heard nothing in the GD member’s words or tone to suggest he engendered an oppressive atmosphere that might have intimidated the Applicant or otherwise compromised her evidence. As noted, the GD member presumably excluded the Applicant’s spouse for sound evidentiary reasons—in order to prevent the Applicant’s testimony from colouring the testimony of her spouse, the better to assess his credibility.
[16] One factor that might have caused the GD concern was the Applicant’s impression, evident in her written submissions to the AD, that her husband could play a role in supplementing her memory or helping her articulate her thoughts. While it is understandable that she would want this kind of support, it would create the potential for her spouse to substitute his memories for hers—even if unintentionally—thereby diminishing the value of the oral hearing. Ultimately, it was within the jurisdiction of the GD to decide whether it wanted to hear from the Applicant in person and then insist that her testimony be delivered without intermediation.
[17] I see no reasonable chance of success on this ground.
Conclusion
[18] As the Applicant has not presented an arguable case on the grounds submitted, the application for leave to appeal is refused.