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Reasons and decision
Introduction
[1] The Applicant applied for a Canada Pension Plan (CPP) disability pension and claimed that she was disabled as a result of chronic pain, physical limitations and mental illness. The Respondent refused her application initially and on reconsideration. She appealed the reconsideration decision to the Social Security Tribunal of Canada (Tribunal). On November 11, 2016, the Tribunal’s General Division determined that the Applicant did not suffer from a severe disability under the CPP at the relevant time. The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division on February 24, 2017.
Analysis
[2] The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operation. According to subsections 56(1) and 58(3) of the 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.
[3] The only grounds of appeal available under the DESD Act are set out in subsection 58(1) of the DESD Act. They are that the General Division failed to observe the principles of natural justice, made an error of law or based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it. Subsection 58(2) states that leave to appeal is to be refused if the appeal has no reasonable chance of success (see Appendix).
[4] I must therefore decide whether the Applicant has presented a ground of appeal under section 58 of the DESD Act that has a reasonable chance of success on appeal.
[5] The Applicant contends that leave to appeal should be granted because the General Division failed to observe the principles of natural justice, made errors of law, and errors of fact contrary to subsection 58(1) of the DESD Act.
[6] In particular, the Applicant argues that the General Division incorrectly characterized her earnings after the minimum qualifying period (the date by which a claimant must be found to be disabled to receive the disability pension) as evidence of her capability to regularly pursue substantially gainful employment, and that evidence of some post-MQP earnings is not equivalent to evidence that an Applicant is capable regularly of pursuing substantially gainful employment. The term “substantially gainful occupation” is not defined in the CPP. However, the Federal Court of Appeal has considered this term and outlined factors that may be considered to decide whether a claimant’s occupation is substantially gainful (see, for example, Atkinson v. Canada (Attorney General), 2014 FCA 187). The General Division did not err in considering the Applicant’s income. However, it is not clear from reading the decision whether it considered any other relevant factors before deciding that she was capable regularly of pursuing a substantially gainful occupation. This ground of appeal points to an error of law. It has a reasonable chance of success on appeal.
[7] In Mette v. Canada (Attorney General), 2016 FCA 276, the Federal Court of Appeal indicated that it is not necessary for the Appeal Division to address all the grounds of appeal an applicant raises. Because I found that one ground of appeal has a reasonable chance of success, I have not considered the remaining grounds of appeal. The parties are not, however, restricted only to the ground of appeal considered in this decision on the appeal.
Conclusion
[8] The Application is granted.
[9] This decision to grant leave to appeal does not presume the result of the appeal on the merits of the case.
Appendix
Department of Employment and Social Development Act
58. (1) The only grounds of appeal are that
- (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.
58. (2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.