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Reasons and decision
[1] The Appellant applied for a disability pension in January 2008. The Respondent denied the initial claim, as well as the reconsideration request. The Appellant appealed the reconsideration decision to the Office of the Commissioner of Review Tribunals, and it was transferred to the Social Security Tribunal of Canada (Tribunal) in April 2013. On January 27, 2016, the General Division of the Tribunal dismissed the appeal based on the record. The Appellant filed an application for leave to appeal with the Appeal Division of the Tribunal. On July 6, 2016, the Appeal Division refused the application for leave to appeal.
[2] The Appellant filed an application for judicial review, which was granted on December 9, 2016, on the parties’ consent. The Federal Court ordered that the file be returned to the Appeal Division for reconsideration by another member. The Federal Court noted that the General Division had not held a hearing and that this failure to hold a hearing prevented the Appellant from testifying and, consequently, the Appeal Division should have granted permission to appeal based a breach of natural justice.
[3] Under section 18 of the Social Security Tribunal Regulations (Regulations), the parties to the appeal asked the Appeal Division to render a decision based on the agreement entered into on February 9, 2017. The agreement reads in part as follows:
[translation]
The Appellant was expecting a hearing because, before his file was transferred to the SST-GD, the Appellant had had the start of a hearing before the Review Tribunal on December 2, 2009. The hearing was adjourned so that he could complete his file. When the SST-GD advised the Appellant that it was going to proceed on the record, the Appellant immediately objected. He even suggested that, for lack of testifying in person, the hearing should be conducted by phone. […]The SST-GD failed to consider the Appellant’s objections. He had written on several occasions that his file was complex and that there were medical reports that needed clarification, among which were Dr. Smith’s medical reports. These reports had a serious detrimental effect on his case and needed explanations by the Appellant. Furthermore, because the file pertains to chronic pain, the determination of the Appellant’s credibility necessitates a hearing by teleconference, videoconference or in person. […]
The SST-GD wrongly exercised its jurisdiction under the terms of section 28 of the Social Security Tribunal Regulations (Regulations) by rendering its decision on the record. It is a complex file about a motor vehicle accident that, according to the Appellant, left him disabled. The medical reports on file are many and are complex. Furthermore, the SST-GD should have held a type of hearing that would have enabled the Appellant to testify so that his credibility could have been assessed.
[4] The agreement proposes that the Appellant’s application for leave to appeal be allowed, and that the Appellant’s appeal be allowed on the ground that the General Division [translation] “held no form of hearing thus preventing the Appellant from testifying, which acts contrary to the principles of natural justice.” The parties ask that the matter be referred back to the General Division for reconsideration by another member, in accordance with the directions that the Appeal Division considers appropriate, under section 59 of the Department of Employment and Social Development Act (Act).
[5] Subsections 56(1) and 58(3) of the Actprovide that “[A]n appeal to the Appeal Division may only be brought if leave to appeal is granted” and that the Appeal Division “must either grant or refuse leave to appeal”. Subsection 58(2) of the Act states that the Appeal Division dismisses the request if “the appeal has no reasonable chance of success.” According to subsection 58(1) of the Act, one of the only enumerated grounds for appeal is that the General Division failed to observe a principle of natural justice.
[6] It has long been held that the right to be heard is a fundamental natural justice right. It is also well-established that the denial of this right is a breach of the principles of natural justice and constitutes grounds for a new hearing.
[7] Given the facts of this case, the Federal Court’s decision and the parties’ agreement, I find that there is a reasonable chance of success for the appeal on the grounds of breach of natural justice. I am granting leave to appeal to the Appeal Division.
[8] The parties are also of the view that the appeal must be allowed. I accept their statements, according to which the circumstances were complex, the medical reports were many and the Appellant’s credibility was a prevailing issue. Furthermore, I am of the view that, in this particular case, the fact of having heard the appeal on the record constitutes a breach of a principle of natural justice (the right to be heard). I note that this position can be supported by the recent decision in Murphy v. Canada (Attorney General), 2016 FC 1208.
[9] Paragraph 3(1)(a) of the Regulations states “The Tribunal must conduct proceedings as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.” Considering the arguments that the Appellant has raised and the agreement between the parties, I am allowing the appeal and am sending the matter back to the General Division for a new hearing by a new member.
Conclusion
[10] On the parties’ consent, leave to appeal is granted and the appeal is allowed. The matter is referred back to the General Division to be reconsidered by another member, who will have to hold a hearing. Before choosing the type of hearing (teleconference, videoconference or in-person), the General Division member must consider the parties’ submissions on the appropriate type of hearing. In order to expedite the resolution of this appeal as much as possible, I invite the parties to send their submissions on the appropriate type of hearing as soon as possible.