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Reasons and decision
Introduction
[1] On April 11, 2017, the General Division of the Social Security Tribunal of Canada determined that a disability pension under the Canada Pension Plan was not payable.
[2] The Applicant filed an application for leave to appeal with the Tribunal’s Appeal Division on June 21, 2017. The Tribunal wrote to the Applicant indicating that her application for leave to appeal was incomplete as she was lacking sufficient grounds for appeal [see Bossé v. Canada (Attorney General), 2015 FC 1142]. The Applicant provided further information in support of her application, and the Tribunal wrote to her again indicating that she had still not provided a ground for appeal. The Applicant provided further information to the Tribunal and the Tribunal acknowledged the application as complete.
Issue
[3] The Appeal Division must decide whether the appeal has a reasonable chance of success.
The law
Leave to appeal
[4] According to ss. 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an applicant may bring an appeal to the Appeal Division only if the Appeal Division grants leave to appeal. The Appeal Division must either grant or refuse leave to appeal.
[5] Subsection 58(2) of the DESDA provides that the Appeal Division refuses leave to appeal if it is satisfied that the appeal has no reasonable chance of success. An arguable case at law is a case with a reasonable chance of success [see Fancy v. Canada (Attorney General), 2010 FCA 63].
Grounds of appeal
[6] According to s. 58(1) of the DESDA, the following are the only grounds of appeal:
- (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.
Submissions
[7] The Applicant argues that the Tribunal has made a factual error under s. 58(1)(c) of the DESDA. It appears that the Applicant argues that she told the General Division that she had a tick bite (Lyme disease) but the General Division ignored this evidence.
[8] The Applicant also argues that while she waited for a decision from the General Division, she underwent a bone scan and a magnetic resonance imaging (MRI) that assist her in showing she cannot work. She submitted the MRI report as part of her application for leave to appeal.
Analysis
[9] The Applicant bears the onus of providing all the evidence and arguments required under s. 58(1) of the DESDA [see Tracey v. Canada (Attorney General), 2015 FC 1300]. However, the Appeal Division should go beyond a mechanistic review of the grounds of appeal [see Karadeolian v. Canada (Attorney General), 2016 FC 615]. A review of the General Division’s decision indicates that there are a number of possible errors under s. 58(1) of the DESDA.
[10] First, the General Division may have misstated and therefore may have failed to properly apply the legal test for a severe disability for the purpose of the CPP disability pension. The General Division indicated (at para. 31) as follows: “Based on the Appellant’s testimony, the Tribunal is unable to conclude that the Appellant was significantly functionally disabled and limited in her activities of daily living at the time of the MQP or prorated date.”
[11] It is arguable, based on this statement, that the General Division committed an error of law under s. 58(1)(b) of the DESDA. The General Division was tasked with determining whether the Applicant had a severe and prolonged disability on or before the MQP or the prorated date. In order to qualify for benefits under the CPP, the Applicant must be “incapable regularly of pursuing any substantially gainful occupation.” The General Division may instead have focused in error on whether the Applicant was “significantly functionally disabled and limited in her activities of daily living.”
[12] Second, while at para. 25 the General Division appropriately acknowledged the need to assess the severe criterion in a “real-world” context [see Villani v. Canada (Attorney General), 2001 FCA 248], it may be that the General Division failed to actually engage in this analysis. According to Villani, a decision-maker must consider factors such as age, level of education, language proficiency, and past work and life experience. In this case, the Applicant’s age is mentioned in the evidence but not at all in the analysis. Some of the Applicant’s work history is mentioned in the analysis (at para. 27), but there is no analysis involving her education or her degree of language proficiency. It appears from the record that the Applicant may have gone to high school in Bosnia Herzegovina, and the decision makes no reference to the Applicant’s language proficiency in English, which may have been relevant. The failure to engage in a Villani analysis can be the marker of an error under s. 58(1)(b) of the DESDA.
[13] Third, it is arguable that the General Division made an error relating to its treatment of the post-MQP evidence of part-time work from 2011 to 2013. The General Division seems to have relied on this evidence to determine that the disability was not severe, without explaining how this evidence supports its finding as to the severity on or before the end of the MQP. This is not simply a question of the sufficiency of the reasons more generally, which is not a “stand- alone” basis for appeal [see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62]. Rather, it is a question of whether the General Division provided reasons that allow for an understanding of the analysis it applied to the pre- and post-MQP evidence respectively.
[14] On the question of whether this part-time work was “regular” and “substantially gainful,” the General Division did not summarize the earnings detailed in the record, or expressly consider in its analysis the reason why the Applicant left the work. The General Division indicated that the Applicant worked some “long hours” (para. 29), and concluded as follows: “But, based on the large number of hours worked, the Tribunal finds that the Appellant was capable ‘regularly’ of pursuing substantially gainful employment until the date of the hearing” (para. 30).
[15] It is arguable that the reasons do not allow for an understanding of how the Tribunal determined that the part-time work was substantially gainful, as there is no reference to the earnings, or a clear finding of how predictable or regular the Applicant’s capacity for work was and how many hours the General Division considered to be a “large number.”
[16] Given that the Appeal Division has identified several possible errors under s. 58(1) of the DESDA, the Appeal Division does not need to consider any other grounds raised by the Applicant at this time. The DESDA s. 58(2) does not require that individual grounds of appeal be considered and accepted or rejected [see Mette v. Canada (Attorney General), 2016 FCA 276].
[17] The Applicant is not restricted in her ability to pursue the grounds raised in her application for leave to appeal, with one exception. The Appeal Division will not consider any argument on appeal that relies on new evidence that was not before the General Division (i.e. bone scan or MRI results that post-date the hearing). The Appeal Division does not normally grant leave on the basis of new evidence [see Mette].
[18] If the Applicant wishes to provide submissions about evidence that was ignored by the General Division about Lyme disease, she will need to provide more information about where this evidence is located in the record.
Conclusion
[19] The application for leave to appeal is granted. This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.