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Reasons and decision
Decision
[1] The appeal is dismissed.
Introduction
[2] The Appellant completed Grade 9. He worked as a software salesperson until November 2005, when he stopped this work because of his health problems and to move closer to family. He subsequently obtained a real estate licence, but was not able to work in this field successfully. The Appellant applied for a Canada Pension Plan disability pension and claimed that he was disabled as a result of limited neck movement; loss of feeling on the right side of his body; pain in his neck, shoulder, and upper back; blindness in his right eye; double vision; and spasms in his right arm. The Respondent refused the application. The Appellant appealed this decision to this Tribunal. The Tribunal’s General Division dismissed the appeal on January 24, 2017. The Appellant requested leave to appeal to the Tribunal’s Appeal Division, which was granted on August 1, 2017.
[3] This appeal was decided on the basis of the written record for the following reasons:
- I have determined that no further hearing is required.
- The Social Security Tribunal Regulations require that the Tribunal proceed as informally and quickly as circumstances, fairness, and natural justice permit.
- The issues under appeal are not complex, and the evidence in the record does not require any clarification.
- The Appellant stated that he had no further submissions to make, apart from the application for leave to appeal.
Standard of review and analysis
[4] The Federal Court of Appeal decision Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, states that administrative tribunals must look first to their home statutes for guidance in determining their role and what standard of review is to be applied to a decision on appeal. The Department of Employment and Social Development Act (DESD Act) is the home statute for this Tribunal.
[5] The only grounds of appeal available under the DESD Act 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.
[6] Based on the unqualified wording of s. 58(1)(a) and (b) of the DESD Act, no deference is owed to the General Division on questions of natural justice, jurisdiction, or errors of law.
[7] Paragraph 58(1)(c) directs the Appeal Division to intervene if 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”. This language suggests that the Appeal Division should intervene only when the General Division bases its decision on an error that is clearly egregious or at odds with the record. In Hussein v. Canada (Attorney General), 2016 FC 1417, the Federal Court held that the weighing and assessment of evidence lies at the heart of the General Division’s mandate and jurisdiction. Its decisions are entitled to significant deference.
[8] The Appellant contends that the General Division decision was based on erroneous findings of fact under paragraph 58(1)(c) of the DESD Act. Each of his arguments is considered below.
Specific medical reports
[9] The Appellant argues that four medical reports were not referred to in the General Division decision, so they must not have been considered by the General Division in making its decision. These reports were that of Dr. Nicoll dated December 8, 2015, that of Dr. Reid dated October 11, 2016, that of Dr. Macnab dated May 9, 2016, and that of Dr. Pathak dated June 21, 2016. The reports of Dr. Macnab and Dr. Reid are summarized in the decision. The decision also summarized a 2013 report by Dr. Pathak, which was closer in time to the Appellant’s minimum qualifying period (MQP), of December 31, 2010 (the MQP is that date by which a disability pension claimant must be found to be disabled in order to be eligible to receive the disability pension). While the December 8, 2015, report by Dr. Nicoll was not specifically summarized or referred to in the decision, the report this doctor prepared as part of the Appellant’s application was referred to.
[10] I am also mindful of the statement by the Federal Court of Appeal that the Tribunal is presumed to have considered all of the evidence before it, including testimony and written material. Each and every piece of evidence need not be mentioned in the written decision (Simpson v. Canada (Attorney General), 2012 FCA 82).
[11] I am satisfied that the General Division did not base its decision on erroneous findings of fact under paragraph 58(1)(c) of the DESD Act simply because it did not refer to all of these specific medical reports. The decision contains a detailed summary of the evidence in paragraphs 8 through 37. The decision sets out clearly what medical conditions affect the Appellant and how. The reasoning for the conclusion reached is logical and intelligible and based on the law and the evidence.
Effect of sleep disturbance
[12] The Appellant also submits that the General Division erred because it did not consider the impact that his sleep disturbance had on his capacity regularly to pursue any substantially gainful occupation. I am satisfied that the General Division turned its mind to this condition. Evidence regarding the Appellant’s fatigue was summarized in paragraph 18 (Dr. Bond noted improved sleep with Lyrica on February 19, 2009), paragraph 25 (Dr. Macnab opined that the Appellant was chronically fatigued) and paragraph 26 (Dr. Reid wrote on October 11, 2016, that the Appellant had difficulty sleeping due to pain). The General Division’s mandate is to receive all of the evidence and give weight to it in making its decision. The evidence regarding the Appellant’s sleep issues at the MQP was that they had improved with medication. The decision states in paragraph 45 that the Tribunal was aware of Dr. Macnab’s reports and that they would support the Appellant’s case, but gave them little weight because they were dated long after the MQP and did not accord with specialist reports. This reasoning is logical and legally sound. It demonstrates that the evidence was considered. I am not convinced that the General Division decision was based on any erroneous finding of fact under paragraph 58(1)(c) of the DESD Act with respect to this evidence.
Participation in odd jobs
[13] The Appellant also contends that the General Division erred when it found as fact that he participated in odd jobs. The decision refers to a medical report that states that the Appellant participated in odd jobs but was unable to earn enough to survive (paragraph 17). This evidence was clarified by the Appellant when he testified that he did odd jobs only around the house (paragraph 35). The decision contains no further findings of fact regarding this evidence. The decision gave less weight to his participation in odd jobs than to the medical reports filed, which indicated that although the Appellant had some medical limitations, they were not severe under the Canada Pension Plan (see paragraphs 42 to 44, which detail the limitations). Consequently, I am satisfied that the decision was not based on an erroneous finding of fact in this regard.
Medication taken
[14] In addition, the Appellant contends that the General Division based its decision on an erroneous finding of fact regarding the improvements to his condition that resulted from some medications. I am not satisfied that the General Division made any such error. The decision summarized various treatments the Appellant underwent for his conditions, including oral medications, Botox injections, and surgery. The decision recorded the outcomes of these treatments. It made no findings of fact regarding medications taken or their long-term effects on the Appellant’s health. It did not err in this regard.
Physiotherapy attempts
[15] Also, the Appellant argues that the General Division erred regarding his attempts at physiotherapy. Paragraph 27 of the decision does not refer to this treatment. Paragraph 36 states that the Appellant underwent physiotherapy as a passive treatment. This occurred approximately five years after the MQP. The General Division did not make any further findings regarding this. I am not convinced that it made any error as the decision was not based on any finding of fact regarding this treatment.
Real estate licence and work
[16] The General Division summarized the evidence regarding this matter—that the Appellant completed a self-study program that he began in 2007 and obtained a real estate licence, that he worked in this area from 2009 to 2011 and stopped working because he had not completed a single transaction, and that he could not work because of his symptoms. The Appellant does not contest these facts. The General Division considered this evidence in making its decision. I am not satisfied that it made any erroneous finding of fact in a perverse or capricious manner or without regard for the material before it. These findings of fact are based on the evidence that was before the General Division and are not at odds with that evidence.
Late application for the pension
[17] Finally, the Appellant argues that the General Division misconstrued the fact that he applied late for the disability pension and attempted to regain his independence. He did not indicate what the erroneous finding of fact was. In Pantic v. Canada (Attorney General), 2011 FC 591, the Federal Court concluded that a ground of appeal cannot be said to have a reasonable chance of success if it is not clear. This appeal cannot succeed on the basis of this argument as it is not clear what error the Appellant is arguing the General Division made.
[18] For these reasons, I am not satisfied that the General Division based its decision on an erroneous finding of fact under paragraph 58(1)(c) of the DESD Act, and the appeal must be dismissed.