Reasons and decision
Decision
[1] The application for leave to appeal is granted.
Overview
[2] The Applicant was born and educated in Canada. She worked in Canada and contributed to the Canada Pension Plan until she moved to Portugal. She then worked in Portugal. The Applicant applied for a Canada Pension Plan disability pension and claimed that she was disabled by a heart condition and a hand condition. The Respondent refused the application initially and on reconsideration. The Applicant appealed the reconsideration decision to the Social Security Tribunal of Canada (Tribunal). On December 23, 2016, the Tribunal’s General Division decided that the Applicant was not disabled under the Canada Pension Plan by her minimum qualifying period (the date by which a claimant must be found to be disabled in order to be eligible to receive the disability pension). The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division on February 1, 2017. The Application was incomplete. The Tribunal wrote to the Applicant and requested information to complete the Application. It was provided in the time required.
Analysis
[3] The Department of Employment and Social Development Act (DESD Act) governs the operation of this Tribunal. 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.
[4] The only grounds of appeal available under the DESD Act are set out in subsection 58(1), namely, that the General Division failed to observe a principle 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 for 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.
[5] I must therefore decide whether the Applicant has presented a ground of appeal under subsection 58(1) of the DESD Act that may have a reasonable chance of success on appeal.
[6] The Applicant repeated some of the evidence she presented to the General Division, and included medical documents that she had translated into English to support the Application. The repetition of evidence is not a ground of appeal under the DESD Act. Similarly, new evidence generally is not permitted on an appeal under the DESD Act: Canada (Attorney General) v. O’Keefe, 2016 FC 503. The new evidence proffered in this case would not fall into an exception to this general principle. Leave to appeal cannot be granted on the basis of these submissions.
[7] The Applicant also contends that her earnings up to and including 2008 were not substantially gainful. The term “substantially gainful occupation” is not defined in the legislation. However, the courts have considered this, and have set out factors to be evaluated to determine if an occupation is substantially gainful (see Atkinson v. Canada (Attorney General), 2014 FCA 187). The General Division decision states that while the Applicant suggested that her income was not substantially gainful, that appeared to be due to the economic circumstances in Portugal. It is correct that economic circumstances are not relevant to a disability determination. However, the General Division does not appear to have considered whether the Applicant’s work was accommodated, whether she was paid a fair wage for the work done, or other factors set out in the case law to assess whether her work was a substantially gainful occupation. This points to an error of law, and is a ground of appeal that may have a reasonable chance of success on appeal.
[8] 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 other grounds of appeal.
[9] The parties are not limited to the ground of appeal considered in this decision.
[10] This decision to grant leave to appeal does not presume the result of the appeal on the merits of the case.