On this page
Reasons and decision
Introduction
[1] The Applicant completed Grade 12 and then joined the paid workforce. She worked until she was injured in a car accident in 2009. She applied for a Canada Pension Plan disability pension and claimed that she was disabled by widespread pain superimposed on scoliosis. She also has high cholesterol and arthritis. The Respondent refused her application and she appealed this decision to the Tribunal. On January 6, 2017, the Tribunal’s General Division dismissed her appeal.
[2] The Applicant argues that the General Division failed to observe the principles of natural justice because it did not consider three clinical notes from her doctor, Dr. Corsini, dated December 8, 2016, December 16, 2016, and June 3, 2010. I must decide whether this discloses a ground of appeal under subsection 58(1) of the Department of Employment and Social Development Act (DESD Act) that may have a reasonable chance of success on appeal.
Analysis
[3] The DESD Act governs the Tribunal’s operations. 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 or made a jurisdictional error, 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] It is not necessary for the decision to recite every piece of evidence that is before it. Therefore, merely not referring to a specific piece of evidence is not an error. The General Division decision contains a very detailed and thorough summary of all of the evidence that was before it (see paragraphs 16 to 52). Paragraph 19 summarizes some of Dr. Corsini’s clinical notes, and specifically refers to the note made on June 3, 2010.
[6] The General Division is also presumed to have considered all of the evidence before it, including testimony and written material (Simpson v. Canada (Attorney General), 2012 FCA 82). However, this presumption can be rebutted if an applicant establishes that the evidence was of such probative value that the decision-maker ought to have considered it. If the Applicant is correct that these clinical notes refer to her capacity to work prior to the minimum qualifying period (the date by which a claimant must establish that they are disabled in order to be eligible to receive the disability pension) and that they were not considered by the General Division, it may have based its decision on an erroneous finding of fact under paragraph 58(1)(c) of the DESD Act. This is a ground of appeal that may have a reasonable chance of success on appeal.
[7] The Applicant also repeats some of the evidence that was before the General Division regarding her daily limitations and not attempting to find alternate work or to retrain. The repetition of evidence does not point to any error made by the General Division and is not a ground of appeal that may have a reasonable chance of success on appeal.
Conclusion
[8] Leave to appeal must be granted as the Applicant has presented a ground of appeal that may have a reasonable chance of success on appeal.
[9] The legal test to be met for leave to appeal is less onerous than that required to succeed on an appeal. The decision to grant leave to appeal does not presume the result of the appeal on the merits of the case.