On this page
Reasons and decision
Decision
The appeal is allowed.
Introduction
[1] This is an appeal of the decision of the General Division of the Social Security Tribunal of Canada (Tribunal) issued on October 18, 2016, which determined that the Appellant was ineligible for disability benefits under the Canada Pension Plan (CPP), because her disability was not “severe” during her minimum qualifying period (MQP), which ended on December 31, 2015.
[2] Leave to appeal was granted on June 9, 2017, on grounds that the General Division may have erred in rendering its decision.
Overview
[3] The Appellant applied for CPP disability benefits on February 14, 2014. In her application, she disclosed that she was 53 years old and had completed high school in Mauritius, her country of origin. She came to Canada in 1981 and worked primarily as a seamstress. She was last employed by the Somali Women’s and Children’s Support Network (SWCSN), a job that she left in January 2014 because of increasing shoulder pain.
[4] The Respondent refused the application initially and on reconsideration on the grounds that the Appellant’s claimed disability was not severe as of the MQP. On December 1, 2014, the Appellant appealed these refusals to the General Division.
[5] At the hearing before the General Division on July 21, 2016, the Appellant testified that she suffered from back and shoulder pain as a result of repetitive motion injuries at work. From 2012 onwards, she requested fewer hours of work due to her health issues. After leaving SWCSN she attempted to work at a clothing store but only lasted one day. She was unable to reach the shelves due to pain and a limited range of motion in her arms and shoulders. She had not looked for work since.
[6] In its decision of October 18, 2016, the General Division dismissed the Appellant’s appeal, finding that, on a balance of probabilities, she was capable of substantially gainful employment as of the MQP. The General Division noted that there was evidence that the SWCSN had laid her off due to lack of work. It also found that one day of working in a friend’s business did not constitute sufficient effort to seek alternative employment.
[7] On November 18, 2016, the Appellant’s representative filed an application for leave to appeal with the Tribunal’s Appeal Division, alleging multiple errors on the part of the General Division. In my decision of June 8, 2017, I granted leave to appeal on the grounds that the General Division may have based its decision on erroneous findings of fact.
[8] On July 21, 2017, the Respondent submitted a letter in which it consented to the matter being referred back to the General Division for a new hearing by a different member.
[9] I have decided that an oral hearing is unnecessary and that the appeal can proceed on the basis of the documentary record for the following reasons:
- (a) The Respondent has agreed to a redetermination of the Appellant’s disability claim on its merits;
- (b) There are no gaps in the file or need for clarification; and
- (c) This form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and as quickly as circumstances, fairness and natural justice permit.
The law
Canada Pension Plan
[10] Paragraph 44(1)(b) of the CPP sets out the eligibility requirements for the CPP disability pension. To qualify for the disability pension, an appellant must:
- (a) be under 65 years of age;
- (b) not be in receipt of the CPP retirement pension;
- (c) be disabled; and
- (d) have made valid contributions to the CPP for not less than the MQP.
[11] The calculation of the MQP is important because a person must establish a severe and prolonged disability on or before the end of the MQP.
[12] Paragraph 42(2)(a) of the CPP defines disability as a physical or mental disability that is severe and prolonged. A person is considered to have a severe disability if he or she is incapable regularly of pursuing any substantially gainful occupation. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.
According to subsection 58(1) of the Department of Employment and Social Development Act (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 made in a perverse or capricious manner or without regard for the material before it.
[13] According to subsection 59(1) of the DESDA, the Appeal Division may dismiss the appeal, give the decision that the General Division should have given, refer the matter back to the General Division for reconsideration in accordance with any directions that the Appeal Division considers appropriate, or confirm, rescind or vary the General Division’s decision in whole or in part.
Submissions
[14] In a letter dated December 6, 2016, the Appellant’s husband and authorized representative alleged that the General Division made several errors in rendering its decision. I allowed leave to appeal on two grounds, finding at least an arguable case that the General Division based its decision on erroneous findings of fact when it:
- (a) found that the Appellant applied for regular Employment Insurance (EI) benefits, rather than sickness benefits; and
- (b) overlooked the fact that the Appellant was fired from her job because she told her employer that she intended to apply for workers’ compensation benefits.
[15] As noted, the Respondent has now conceded the grounds for which leave to appeal was granted. It consents to the Appeal Division referring this matter back to the General Division.
Analysis
[16] I agree that the proceeding before the General Division was flawed and is best remedied by a redetermination of the Appellant’s CPP disability claim on its merits.
Regular Versus Sick ei Benefits
[17] It is clear that the General Division based its decision, at least in part, on a finding that the Appellant applied for regular EI benefits, rather than sickness benefits, after her job ended:
[27] There is conflicting evidence regarding the reason the Appellant stopped working in January 2014. According to the documents from the Appellant’s employer, she was laid off because of the lack of work. However, the Appellant testified that she stopped working because of her deteriorating health. The Appellant applied for regular unemployment benefits in January 2014. The Appellant herself noted in the CPP questionnaire that she planned to return to work when she got better in a few months. The Tribunal did not find the Appellant’s claims of total work stoppage due to health conditions only. The Appellant claimed to be fit to return to work as part of employment insurance benefits request and also stated that she expected to return to work in her CPP questionnaire. The Tribunal having weighed the evidence finds that the ending of employment on January 13, 2014 was due to a lay-off by SWCSN and not the Appellant’s lack of capacity to work.
[18] My review of the evidentiary record indicates that, contrary to the General Division’s assertion, the Appellant disclosed in her February 2014 CPP disability application that she had not applied for regular EI benefits (GD3-67). I have also listened to the audio recording of the hearing and heard nothing to contradict this statement.
[19] The General Division inferred from the Appellant’s purported receipt of regular EI benefits that she had capacity and, in doing so, it based its decision on an erroneous finding of fact without regard for the material.
Reasons for Termination
[20] In paragraph 27, the General Division also found “conflicting evidence” surrounding the reason the Appellant stopped working, particularly on the issue of whether she left her job because of an injury or, as indicated in the January 28, 2014, record of employment (ROE) from the SWCSN, because of a “shortage of work and/or end of contract.” In the end, the General Division concluded that the Appellant ceased work for reasons other than lack of capacity. However, the Appellant submits that, in doing so, the General Division failed to consider significant evidence that (i) the SWCSN terminated her employment after she filed a claim with the Workplace Safety and Insurance Board (WSIB) and (ii) misrepresented the reason for her termination on the ROE.
[21] There is no doubt that the evidentiary record documents several instances (at GD2-17 and GD2-55) in which the Appellant alleges that her former employer relayed false information. My review of the audio recording also indicates that the Appellant presented a narrative in which her impairment and declining performance prompted her to apply for workers’ compensation, which in turn led the SWCSN to constructively dismiss her. At the hearing, the Appellant’s former representative stressed that the SWCSN had a financial incentive to deny that one of their employees had suffered a workplace injury. Although the General Division’s decision mentioned the WSIB claim in passing, it did not address the Appellant’s attempt to explain why her former employer might have attributed her departure to non-medical factors.
[22] Instead, it appears that the General Division took the ROE at face value and relied on it in coming to its decision to deny the Appellant CPP disability benefits. I find that the General Division based its decision on an erroneous finding of fact by failing to meaningfully grapple with the Appellant’s evidence that her injuries led to her dismissal.
Conclusion
[23] For the reasons discussed above, the appeal is allowed.
[24] Section 59 of the DESDA sets out the remedies that the Appeal Division can give on appeal. To avoid any apprehension of bias, it is appropriate in this case that the matter be referred back to the General Division for a de novo hearing before a different General Division member.