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Reasons and decision
Introduction
[1] The Applicant seeks leave to appeal the decision of the General Division dated December 4, 2015, which determined that the Applicant was not eligible for a disability pension under the Canada Pension Plan, as it found that his disability was not “severe” when it considered the appeal. The General Division also determined that the Applicant’s minimum qualifying period ended on December 31, 2016. The Applicant seeks leave to appeal the General Division’s decision, on several grounds.
Issue
[2] Does the appeal have a reasonable chance of success?
Grounds of appeal
[3] Subsection 58(1) of the Department of Employment and Social Development (DESDA) sets out the grounds of appeal as being limited to the following:
- (a) the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- (b) the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- (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.
[4] Before granting leave, I need to be satisfied that the reasons for appeal fall within the enumerated grounds of appeal under subsection 58(1) of the DESDA and that the appeal has a reasonable chance of success. The Federal Court endorsed this approach in Tracey v. Canada (Attorney General), 2015 FC 1300. The Applicant submits that the General Division erred under each of these grounds.
Totality of evidence
[5] The Applicant claims that the General Division failed to consider the totality of the evidence, although he does not identify the evidence that is alleged to have been overlooked.
[6] I have reviewed the hearing file that was before the General Division and see that the Applicant complained of several medical issues, including a heart condition and associated general muscle weakness, fatigue, shortness of breath, and diabetes, which had been well-controlled until the onset of his heart condition, back pain, loss of memory, and mental health issues, including depression and anxiety.
[7] The General Division addressed each of these complaints, so it cannot be said that the member failed to address the totality of the evidence. Unfortunately for the Applicant, the General Division found that there was insufficient medical evidence to substantiate the Applicant’s allegations. For instance, the General Division found that there was no supporting information regarding the Applicant’s mental health issues, back condition and diabetes.
[8] I am not satisfied that the appeal has a reasonable chance of success on this particular ground.
Form of hearing
[9] The Applicant argues that the General Division failed to observe a principle of natural justice by holding a teleconference hearing, rather than an in-person hearing, when his case was largely dependent on his credibility.
[10] In the Hearing Information Form, which he filed with the Social Security Tribunal (Tribunal) in May 2015, the Applicant had requested an in-person hearing, as “the matter involves issues of credibility and in the interests of natural justice” (GD10). He indicated that, in addition to himself, he would have one witness. He also indicated that he would not be available to participate in a videoconference or teleconference hearing, or by written questions and answers.
[11] Natural justice is concerned with ensuring that an applicant has a fair and reasonable opportunity to present his case, that he has a fair hearing and that the decision rendered is free of any bias or the reasonable apprehension or appearance of bias. Apart from suggesting that the General Division might have assessed his claim differently had there been an in-person hearing, the Applicant has not raised any other basis as to how he might have been deprived of a fair hearing or faced any bias.
[12] In Murphy v. Canada (Attorney General), 2016 FC 1208, the Federal Court determined that a de novo hearing before the General Division was more appropriate in that case, but it set out the markedly different factual circumstances that warranted such a form of hearing. In Murphy, the General Division had conducted a paper appeal. Ms. Murphy had a “significant speech impairment”, which the Federal Court determined should have been at the heart of a Villani assessment, together with her limited education and limited ability to make written representation and difficulty expressing her thoughts. The Federal Court determined that Ms. Murphy’s “real world” issues and employability were best assessed in a de novo appeal before the General Division. However, it did not explicitly state that a de novo hearing could not be conducted by videoconference or teleconference. A de novo hearing can be accomplished by not only an in-person hearing, but also a videoconference or teleconference hearing. Even if the Federal Court had envisioned that there would be an in-person hearing afforded to Ms. Murphy, I find that the case is factually distinguishable from those in the proceedings before me. After all, the General Division here did not confine itself to a paper appeal or written questions and answers. It provided a hearing to the Applicant, where he had an opportunity to express himself and present his case.
[13] More recently, the Federal Court of Appeal in Robbins v. Canada (Attorney General), 2017 FCA 24, rejected that appellant’s submissions that the Appeal Tribunal in that case had committed procedural unfairness, as it had decided the appeal only on the basis of written materials. Although it was in the context of an appeal to the Appeal Division, rather than to the General Division, in my view, there are overlapping considerations. The Federal Court of Appeal held that the Appeal Tribunal was entitled to decide matters without a hearing (i.e. decide only a written record and written submissions): section 43 of the Social Security Tribunal Regulations, SOR/2013-60. The Court wrote:
It is entitled to some leeway in making that sort of procedural choice, in part because its choice is often based upon its appreciation of the issues, the evidence before it and the circumstances of the case: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 27; Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para. 89. Finally, we note that by law the Appeal Tribunal “must conduct its proceedings as informally and quickly as the considerations of fairness and natural justice permit”: para. 3(1)(a) of the Social Security Tribunal Regulations.
[14] Similarly, the General Division has the authority to determine the appropriate form of hearing, after giving some consideration to the issues, the evidence before it and the circumstances of the case. Here, the General Division indicated that it had considered these issues and determined that the issues under appeal were not complex. It also referred to the Social Security Tribunal Regulations, which require that the Tribunal proceed as informally and quickly as circumstances, fairness and natural justice permit.
[15] Finally, the Federal Court of Appeal in Robbins stated that it was nonetheless satisfied that Mr. Robbins had been afforded a full opportunity to make submissions and that an oral hearing before it would not have changed the result. Indeed, Mr. Robbins had conceded that he would have largely reiterated what was in the written material. Similarly, there is no indication from the Applicant in the proceedings before me that his evidence would have been any different had there been an in-person hearing.
[16] There may be some circumstances in which the form of hearing might deprive an appellant of the opportunity to fairly present his case, but that is not alleged here, other than to suggest that the General Division could not have properly assessed the Applicant’s credibility. The General Division in this instance did not remark on the Applicant’s credibility or demeanour, or the reliability of his evidence. Rather, the General Division required sufficient documentary evidence to corroborate the Applicant’s allegations regarding the severity of his disability. The member relied on Villani v. Canada (Attorney General), 2001 FCA 248, for the proposition that “medical evidence and evidence of employment efforts and possibilities” are required for an appellant to prove his case on a balance of probabilities. It is clear that the General Division would have required no less from the Applicant, irrespective of whether there had been an in-person hearing, rather than a teleconference.
[17] Given these considerations, I am not satisfied that the appeal has a reasonable chance of success on these particular submissions.
Date of disability
[18] The Applicant submits that the General Division erred by requiring that the Applicant be found disabled “as of the date of the appeal.” However, the Applicant does not suggest any dates when he should have been found disabled, i.e. either sometime prior to the date of the hearing or at some future unspecified date.
[19] If the Applicant is suggesting that the General Division ought to have found that he was severely disabled sometime prior to the hearing before it, the Applicant nonetheless would have had to establish that his disability was long continued and of indefinite duration or likely to result in death. Given that the General Division was unpersuaded that the Applicant was disabled when the hearing of the appeal took place, the Applicant would not have met this second aspect of the test for disability.
[20] If the Applicant suggests that the General Division should have found that he would become disabled at some future unspecified date, he would nonetheless have had to establish that he would have become severely disabled by no later than December 31, 2016, which represents the end of his minimum qualifying period. However, this would have called for some speculation—without any concrete evidentiary basis— regarding the extent and rate of deterioration of his existing condition.
[21] The Applicant has a minimum qualifying period that ended on December 31, 2016, so conceivably he could re-apply for a disability pension and endeavour to prove that he was disabled between the day after the hearing and the end of the minimum qualifying period.
[22] I am not otherwise satisfied that the appeal has a reasonable chance of success on this particular ground.
Definition of disability
[23] The Applicant contends that the General Division erred in narrowly interpreting the definition of “disability” under the Canada Pension Plan when it should have given a wide and liberal interpretation and should have resolved any ambiguity in his favour, and that, as such, it erred in failing to find that he has a severe and prolonged disability.
[24] At paragraph 5 of its decision, the General Division set out the test for a severe and prolonged disability, citing paragraph 42(2)(a) of the Canada Pension Plan. At paragraph 30, the General Division also acknowledged that it was required to assess the severity requirement in a “real world” context. This suggests that the General Division was aware of the test for a severe disability.
[25] At paragraph 40, the General Division restated the test twice, indicating that it was not persuaded, “that it [was] more likely than not that the [Applicant] has a disability that makes him incapable of pursuing any substantially gainful employment.” Paragraph 42(2)(a) of the Canada Pension Plan of course stipulates that a person is considered to have a severe disability if he or she is incapable regularly of pursuing any substantially gainful occupation. There is a distinction between being “incapable of pursuing” and being “incapable regularly of pursuing”. After all, the Federal Court of Appeal in Villani, at paragraph 49, indicated that the correct legal test for severity involves applying the ordinary meaning of every word in the statutory definition of severity in subparagraph 42(2)(a)(i), as it is only then that the trier of fact will be in a position to judge on the facts whether an applicant is incapable regularly of pursuing any substantially gainful occupation.
[26] Having fully set out the test at the outset, however, I find that the General Division merely simplified the test for a severe disability, but in so doing, misstated the test. It ought not to have abbreviated the test, to avoid any confusion that may have arisen.
[27] In any event, it is clear that the outcome would have been no different, irrespective of which test had been applied by the General Division. After all, the General Division stressed throughout its decision that there was a complete absence of medical evidence to support the Applicant’s claims, and that he had failed to explain why he had chosen not to adduce medical evidence.
Work capacity
[28] The Applicant asserts that the General Division based its decision on an erroneous finding of fact that it made without regard for the evidence before it, when it found that he had work capacity, as it should have accepted his uncontradicted evidence, as well as that of his family physician, regarding his employment efforts and work capacity. The member was aware of the Applicant’s submissions in this regard, and addressed them in its analysis. It simply found that there was insufficient documentary medical evidence to support his claims, and that the opinions of the family physician were deficient.
[29] Essentially, the Applicant is requesting that the Appeal Division reweigh and reassess the evidence in order to reach a different conclusion regarding his eligibility for a disability pension. However, as the Federal Court held in Tracey, it is not the role of the Appeal Division to conduct a reassessment when determining whether leave should be granted or denied, as a reassessment does not fall within any of the grounds of appeal under subsection 58(1) of the DESDA.
[30] Additionally, I am mindful of the words of the Federal Court in Hussein v. Canada (Attorney General), 2016 FC 1417, that the “weighing and assessment of evidence lies at the heart of the [General Division’s] mandate and jurisdiction. Its decisions are entitled to significant deference.”
Weight of evidence
[31] The Applicant asserts that 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, by failing to give adequate weight to the evidence of the family physician who had been managing the Applicant’s overall care and is best positioned to render an opinion as to his level of disability and capacity for work. The Applicant made similar submissions before the General Division, that as his family physician manages all of his conditions, his opinion should be sufficient to draw a finding that the Applicant is severely disabled under the Canada Pension Plan.
[32] The General Division member was unprepared to assign much weight to the opinion of the family physician, as she found that his notes contained “very limited information” and as he did not provide a basis to explain how he had arrived at his opinion. For instance, the member found that the family physician had not explained any findings or set out the information upon which he might have based his opinion, and that he had not described or included any consultation reports or opinions from other health care professionals upon which he might have based his opinion.
[33] The issue of the weight to be ascribed to evidence does not fall within any of the enumerated grounds of appeal under subsection 58(1) of the DESDA. The Federal Court of Appeal has declined to interfere with a decision-maker’s assignment of weight to the evidence, holding that such an exercise is a matter for “the province of the trier of fact”: Simpson v. Canada (Attorney General), 2012 FCA 82. Similarly, I would defer to the General Division’s assessment of the evidence. As the trier of fact, it is in the best position to assess the evidence before it and to determine the appropriate amount of weight to assign. The Appeal Division does not hear appeals on a de novo basis and is not in a position to assess the matter of weight. I am therefore not satisfied that the appeal has a reasonable chance of success. I cannot conclude that the General Division should have placed more weight or given greater consideration to the opinion of the family physician, notwithstanding the fact that he had been managing the Applicant’s overall care and was the most familiar with the Applicant’s condition. There is no absolute duty that a decision-maker assign significant weight to the opinion of the primary treating physician, and particularly in this case, when the member found that the family physician had not adequately set out the basis for his opinion.
Conclusion
[34] The application for leave to appeal is refused. As I have indicated above, the Applicant still has the opportunity to reapply for a disability pension because the information that is available concerning his Canada Pension Plan contributions indicates that his minimum qualifying period ended on December 31, 2016.