On this page
Reasons and decision
Introductions
[1] On September 9, 2016, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that a disability pension under the Canada Pension Plan was not payable. The General Division decided that the Applicant did not have a severe disability on or before her minimum qualifying period (MQP), which ended on December 31, 2014.
[2] The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division on December 5, 2016. The Applicant filed an additional document on September 18, 2017 advising that she had surgery on her shoulder on September 8, 2017.
Issue
[3] The Appeal Division must decide whether the appeal has a reasonable chance of success.
The law
Leave to appeal
[4] According to ss. 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an appeal to the Appeal Division may be brought only if the Appeal Division grants leave to appeal, and the Appeal Division must either grant or refuse leave to appeal.
[5] Subsection 58(2) of the DESDA provides that the Appeal Division refuses leave to appeal if it is satisfied that the appeal has no reasonable chance of success. Having a reasonable chance of success means “having some arguable ground upon which the proposed appeal might succeed” [see Osaj v. Canada (Attorney General), 2016 FC 115].
Grounds of appeal
[6] According to s. 58(1) of the DESDA, the only grounds of appeal are 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.
Submissions
[7] The Applicant argues that the General Division failed to observe a principle of natural justice, and that the decision includes errors of fact and errors of law, resulting in a “perverse decision.”
[8] The Applicant argues that:
- the General Division lost its way by being unfairly critical of Dr. O’Mahony’s opinion on the application simply because he had supported that earlier application and the Applicant worked after that earlier application; and
- the General Division failed to observe the principles of natural justice and/or there was an error of law because the General Division imposed a higher onus on the Applicant to show that she had a severe and prolonged disability to the standard of perfection rather than on a balance of probabilities; and
- the General Division made a factual error in finding that the Applicant worked for a hotel for two years after her inpatient treatment and made a further factual error in finding that osteogenesis imperfecta is a disability only while a fracture heals; and
- the General Division erred in law in failing to consider all the Applicant’s conditions in combination with each other; and
- the General Division erred in its application of the “real world” context for determining whether the Applicant had a severe disability, relying on the fact that the Applicant was 30 years from retirement.
Analysis
a) Alleged error in considering previous disability application
[9] The Applicant submits that the General Division erred in the weight it assigned to the evidence from Dr. O’Mahony. Dr. O’Mahony supported the Applicant in a previous application for a disability pension, and the Applicant continued to work after that application. The General Division characterized Dr. O’Mahony’s opinion from the prior application as “incorrect” (para. 49), in the sense that the Applicant did work after Dr. O’Mahony supported an application to the effect that she could not. The Appeal Division understands the Applicant to argue that the General Division relied too heavily or improperly on this fact when considering Dr. O’Mahony’s evidence on the current application.
[10] The Appeal Division can grant leave to appeal only if there is a ground of appeal under s. 58(1) of the DESDA that has a reasonable chance of success. Where the Appeal Division grants leave to appeal, it does not provide new hearings on the merits (de novo hearings) in which applicants can present all their evidence for the Appeal Division to weigh and consider. The Federal Court of Appeal stated clearly that assigning weight to evidence is the job of the trier of fact [see Simpson v. Canada (Attorney General), 2012 FCA 82]. This submission does not fall within a ground of appeal in s. 58(1) of the DESDA because it amounts to a request for the Appeal Division to reweigh the evidence and come to a different conclusion.
[11] The General Division must weigh the evidence in the record and did so in this case. There is nothing contrary to law in considering the Applicant’s work history, including the fact that she ultimately worked after a previous application for a disability pension. The General Division decided not to afford Dr. O’Mahony’s evidence significant weight, and gave sufficient reason for that conclusion at para. 49.
[12] The General Division’s reasons for weighing Dr. O’Mahony’s evidence as it did were not limited to the fact that the Applicant worked after Dr. O’Mahony supported her first application for a disability pension. The General Division also noted that Dr. O’Mahony’s May 2015 opinion lacked support, which is supported by the record. It appears the General Division also found it difficult to square Dr. O’Mahony’s opinion that the Applicant could not maintain any type of employment because of osteogenesis imperfecta and post-traumatic stress disorder (PTSD) when faced with a record of the Applicant having those conditions for many years and maintaining employment anyway until 2012 (para. 49).
[13] It seems the Applicant would have liked the General Division to place more weight on Dr. O’Mahony’s conclusion that she could not maintain any type of employment, but there is no error pursuant to s. 58(1) in relation to the weight assigned to Dr. O’Mahony’s evidence. The Appeal Division cannot reweigh the evidence for the General Division.
b) Alleged error in application of burden of proof
[14] The Applicant argues that while the General Division accurately identified the burden of proof as being on a balance of probabilities, it actually held the Applicant to a standard of perfection in showing that she had a disability that was severe on or before the MQP.
[15]The burden of proof is on the Applicant and it is on a balance of probabilities [see Bagri v. Canada (Attorney General), 2006 FCA 134]. If the General Division had held the Applicant to a standard of perfection, that would be an error of law pursuant to s. 58(1)(b) of the DESDA.
[16] However, the General Division’s decision does not contain any support for a finding that the Applicant was held to a standard of perfection. The decision identified properly the standard of proof as whether it is “more likely than not” that the Applicant had a severe and prolonged disability on or before the date of the MQP (para. 8). The General Division identified the test correctly again at the start of its analysis (para. 40).
[17] There is no language in the decision that implies a different standard was used, [such as needing to be “convinced,” see S. C. v. Minister of Employment and Social Development, 2015 SSTAD 609 (CanLII)].
[18] The General Division did not require the Applicant to show that her disability was severe to a standard of perfection. The General Division reviewed the medical evidence and the evidence of the Applicant and her husband in some detail, and accepted that the Applicant is “functionally limited in what she can do physically. For instance, she is unable to work in positions that would require sustained standing, walking, reaching or bending” (para. 41). The General Division acknowledged that there was evidence of limitations, but was not satisfied that there was “satisfactory reason for the Appellant to have permanently left the workforce following her seizure in June” (para. 50).
[19] Given the history of work the Applicant completed with both PTSD and osteogenesis imperfecta, the General Division properly considered why the Applicant was no longer able to work in June 2012. The General Division considered the available evidence about the Applicant’s medical condition from the time she stopped working in 2012 until the end of the MQP on December 31, 2014. The General Division took into account the fact that the Applicant did not have any more seizures after 2012 and was taking her seizure medication (para. 42) and that she indicated that her reason for ceasing work was her existing conditions and the fear of having a seizure at home and no one would be there to help her (paras. 16 and 18).
[20] There is no evidence to support that the General Division held the Applicant to a higher standard of proof and therefore committed an error of law under s. 58(1)(b) of the DESDA. On this submission, the Applicant has no reasonable chance of success.
c) Alleged errors of fact
[21] The Applicant argues that the General Division made a factual error when it noted in its analysis that the Applicant remained working for a hotel “for two years after she returned to work” following inpatient treatment in 2010 (para. 43).
[22] The record seems to support and the decision acknowledges that the Applicant returned to work for the hotel in June 2011, less than a year after she returned from inpatient treatment in October 2010. However, the facts section of the decision also indicates (and the record seems to support) that the Applicant began working from home for another company in July 2011, and that she was on sick leave from June 5, 2012, to September 18, 2012.
[23] The factual error alleged in para. 43 amounts to a reference to working for a specific employer, rather than an indication that the Applicant was working more generally. The Applicant did work from October 2010 until June 2012, nearly two years, albeit for two different employers.
[24] However, there is no evidence that it was made in a capricious manner or without regard for the material before it. In any event, the General Division properly considered in its analysis whether the Applicant’s disability was severe when she stopped working in June 2012, so the error would not have changed the outcome of the decision. The Applicant does not have a reasonable chance of showing that this finding was made in a capricious manner or without regard for the material before it.
[25] The Applicant also argues that the General Division erred in fact by characterizing the Applicant’s osteogenesis imperfecta as a disability only while a fracture heals. If this error had occurred, it could represent a significant misunderstanding of the evidence on the record about the Applicant’s disability. However, the decision did not merely state that osteogenesis imperfecta is a disability while a fracture heals. Rather, the decision states:
The Appellant’s condition of Osteogenesis Imperfecta causes her bones to fracture easily. A fracture may disable the Appellant while it heals. The sequelae of fractures may limit the Appellant’s ability to do certain work which requires physical stamina and strength beyond her capabilities. (para. 45)
[26] The General Division did not only acknowledge that the Applicant’s osteogenesis imperfecta may disable her while a fracture heals, but it also acknowledged the limitations that can occur as a result of sequelae of fracture. The Applicant does not have a reasonable chance of success in showing that there was an error under s. 58(1)(c) of the DESDA relating to the General Division’s description of osteogenesis imperfecta.
d) Alleged error in failing to consider the applicant’s conditions in combination
[27] The Applicant alleges that the General Division erred in failing to consider her conditions in combination with each other.
[28]The law requires the General Division to consider all the possible impairments that affect employability, not just the biggest or the main impairment [Bungay v. Canada (Attorney General), 2011 FCA 47]. Failing to consider the conditions in combination with each other can constitute an error of law under s. 58(1)(b) of the DESDA.
[29] However, the decision does not show evidence of a failure to consider the Applicant’s conditions in combination. The General Division correctly set out the requirement to consider the Applicant’s conditions together and in combination. At para. 44, the General Division stated that it considered the Applicant’s “conditions each on their own and in combination with each other.” The General Division reviewed the available evidence about the impact of the Applicant’s osteogenesis imperfecta, PTSD, and history of seizures. At para. 18, the General Division specifically referenced the Applicant’s evidence of the impact of her conditions in combination: “She said that she didn’t know when a seizure would come on and when she has a seizure she could fall and would probably break a bone. She thought her PTSD didn’t help when she was around numbers of people she would get panic attacks” (para. 18). The General Division weighed the evidence and came to the conclusion that the combined impact of her disabilities did not render her incapable regularly of pursuing any substantially gainful occupation. The decision does not show a compartmentalizing of the conditions that would give rise to an arguable case for an error of law under s. 58(1)(b) of the DESDA.
e) Alleged error in relation to the application of the “real world” context
[30] The Applicant submits that the General Division erred in its application of the “real world” context in determining whether the Applicant has a severe disability on or before the MQP. The Applicant takes issue with the General Division’s consideration of the Applicant’s age, and submits that “a person can be young, have a college education, and have [sic] transferable skills and still be a rambling wreck.” It seems that the Applicant alleges that the Tribunal’s findings in relation to the “real world” context were in error, pursuant to s. 58(1)(c) of the DESDA.
[31] The Applicant argues that the General Division erred in referencing the number of years that the Applicant has until retirement, raising a concern about “discrimination” against the Applicant based on her age. The Appeal Division does not read this argument as a constitutional challenge to the validity, operability, or applicability of a provision under the Canada Pension Plan, but rather as a general challenge to the General Division’s conclusion about the Applicant’s capacity for work as assessed using the factors from Villani v. Canada (Attorney General), 2001 FCA 248. Age is a relevant factor in the “real world” assessment and the Appeal Division identifies no potential error in its application here.
[32] If constitutionality is at issue, the Applicant has not met the notice requirements for making these arguments as outlined in s. 20(1) of the Social Security Tribunal Regulations. It is insufficient for the Applicant to baldly allege, without providing any particulars or specifics, that her constitutional rights have been breached. The Appeal Division normally will not exercise its discretion and consider constitutional arguments for the first time on appeal if these arguments have not been raised or considered by the General Division and, particularly, where there is no evidentiary record or any findings of fact dealing with issues raised by an appellant [see C.F. v. Minister of Employment and Social Development, 2016 SSTADIS 86 (CanLII)].
[33] The Appeal Division does not locate anything in the record to show that the Applicant raised any Canadian Charter of Human Rights and Freedoms issues before the General Division. The Applicant should not be permitted to pursue any constitutional arguments on this issue as she did not pursue them in her appeal to the General Division.
[34] The Tribunal is legally required to consider the real-world context in deciding whether the Applicant’s disability was severe [see Villani v. Canada (Attorney General), 2001 FCA 248]. The Applicant does not have a reasonable chance of showing that the findings of fact in this part of the Tribunal’s analysis were capricious, perverse, or made without regard for the material before it. In applying the Villani factors, the Tribunal appropriately acknowledged that the Appellant was “young with more than 30 years to the standard age of retirement” (para. 51) and ultimately concluded based on all the evidence that the Applicant had transferrable skills that would allow her to obtain suitable work.
Conclusion
[35] The Application has no reasonable chance of success on any ground in s. 58(1) of the DESDA. The Application is refused.