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Reasons and decision
Decision
The application for leave to appeal is refused.
Overview
[1] The Applicant is seeking to appeal a General Division decision that found that the Respondent suffered a severe and prolonged disability and that he was eligible for a CPP disability pension.
[2] The Respondent had suffered several injuries in a motor vehicle accident, and the General Division of the Social Security Tribunal of Canada (Tribunal) found that he continues to suffer chronic pain and physical limitations that render him incapable regularly of pursuing any gainful employment. The Respondent had the burden of proving that he had been disabled on or before December 31, 2012, which is his minimum qualifying period (MQP) based on his contributions to the CPP. The General Division found that the Respondent had met his burden of proof.
[3] The Applicant disagrees with the General Division’s findings that the Respondent lacks capacity regularly to work. The Applicant argues that the General Division erred in finding that the Respondent was incapable of sedentary or light duty work despite the fact that he was capable of attending university on a full-time basis successfully.
[4] Specifically, the Applicant argues that the General Division based its decision on an erroneous finding of fact pursuant to paragraph 58(10)(c) of the Department of Employment and Social Development Act (DESD Act), as it failed to consider the evidence in the record before it regarding the Respondent’s actual hourly class-time attendance, his commuting time to class and his study and preparation time. The Applicant also argues that the General Division placed too much weight on the fact that the Respondent had received several accommodations from the university in order to complete his education, and he cites that all the accommodations he received would typically be provided in a workplace setting as well.
Issue
[5] Does the Applicant’s argument that the Respondent’s attendance at school demonstrates capacity for sedentary or light-duty work have a reasonable chance of success?
Legal test
[6] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESD Act), an appeal to the Appeal Division may be brought only if leave to appeal is granted, and the Appeal Division must either grant or refuse leave to appeal.
[7] Subsection 58(2) of the DESD Act provides that leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.
[8] According to subsection 58(1) of the DESD Act, 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.
Analysis
[9] The Applicant argues that the Respondent’s successful completion of a university degree is evidence of his capacity to work, and that the General Division erred in concluding that his success at school was possible only with the accommodations he had received from the university. The Applicant argues that the General Division was wrong to conclude that the same accommodations would not be available to the Respondent in most workplace settings.
[10] The evidence regarding the Respondent’s schooling is set out at paragraphs 36 to 39 of the General Division decision. The General Division found that the Respondent had attended school beginning in 2012, and that he had graduated in 2015. The General Division acknowledged that the ability to attend school can sometimes be considered strong evidence of capacity to work. However, while it is true that schooling can sometimes be equated with capacity, it cannot be concluded outright that schooling is always indicative of capacity. Assessing capacity in light of one’s attendance at school always depends upon the factual circumstances of each case.
[11] In this case, the General Division considered a number of factors in assessing the severity of the Respondent’s disability. The General Division did not view the Respondent’s schooling in isolation or as being the determinative factor in assessing the severity of his disability. The General Division also assessed the Respondent’s physical limitations, which have persisted since his motor vehicle accident, and it also considered his reported mental health. The General Division found that his physical and mental health conditions contributed significantly to the Respondent’s required accommodations while attending university, and that they would also significantly limit the Respondent’s ability to pursue gainful employment consistently and predictably.
[12] The Applicant suggests that the General Division failed to consider that the Respondent, according to his academic transcripts, was required to attend 15 hours of class time and 15 hours of lab time every week. The Applicant argues that this is indicative of capacity to work 25 hours per week. In addition to this class time, he would have been required to commute to the university and invest some time studying, as well as preparing for class. I find that the General Division properly addressed this issue at paragraph 59, stating “[…] the Appellant attended one hour lectures, with breaks between. He studied at home at his own pace and did not spend much time studying. When he returned home from class he rested for five to six hours. He was in significant pain.”
[13] The General Division also found that the Respondent was capable only of completing his education with significant accommodations to attend school. At paragraph 59 of its analysis, the member further notes that, “[w]hile it is not uncommon for students to be accommodated, it is not realistic to expect that someone in the commercial marketplace would receive the accommodations given to the Appellant – including special parking, special furniture, software that allows him to dictate instead of type and have documents read to him, additional time to complete tasks, and the ability to read lying down as he did to study at home.” There is evidence, in the form of a letter from one of his professors, that the Respondent was unable to write his mid-term and final exam in one of his courses due to his health condition, so he was able to complete the course with a waiver and an averaging of his other marks in that course.
[14] The Applicant has argued that the Respondent would receive reasonable accommodations in any workplace similar to those he received at school. The Applicant relies on the Canadian Human Rights Act and the Human Rights Act of Prince Edward Island in making that argument. However, I find that the General Division properly relied on the totality of the evidence in reaching its decision. While employers may have a legal obligation to make “reasonable” accommodations to provide an individual with what is needed to enable them in the performance of their work, I do not find that the General Division erred in deciding that the accommodations provided to the Respondent were “significant” and necessary for him to complete his education represents a misunderstanding or a misinterpretation of the evidence. I also do not find that the General Division drew incorrect inferences when assessing and weighing the evidence. It was also within the purview of the General Division as trier of fact to find that the accommodations that the university had provided exceeded what could reasonably be expected from an employer in a competitive workplace.
[15] The Applicant has argued that the General Division erroneously found the Respondent lacked capacity to work in a competitive workplace consistently and predictably, which constitutes an erroneous finding of fact pursuant to paragraph 58(1)(c) of the DESD Act. I do not find that the General Division’s assessment of the evidence before it constitutes an erroneous finding of fact that could be considered either perverse or capricious. I am restricted to considering only those grounds of appeal that fall within subsection 58(1) of the DESD Act. The subsection does not permit me to reassess or reweigh the evidence, and I am not permitted to intervene in the General Division’s findings simply because I may have decided an issue differently. It is the Appeal Division’s role to review the underlying record and determine whether the General Division failed to account for any evidence, misconstrued evidence or whether the General Division overlooked evidence that it ought to have considered in reaching its decision. Leave to appeal should normally be granted where this review of the underlying record demonstrates the evidence was not appropriately considered (Joseph v. Canada (Attorney General), 2017 FC 391).
[16] The Applicant has not satisfied me that there is an arguable case as to whether the General Division erred in finding that, despite the Respondent’s attendance at school, he lacked capacity to work. In the absence of any substantiated error of fact, I would not interfere with the General Division’s conclusion that the Respondent’s efforts to complete his education were possible only with significant accommodation. He would not be capable of working consistently and predictably, as his ability to attend school with the type of accommodations he received did not demonstrate work capacity. The General Division decision falls within a range of acceptable outcomes.
Conclusion
[17] The Application is refused.