Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed and the matter is sent back to the General Division for reconsideration by a different member.

Overview

[2] In July 2013, the Appellant, Ms. E. C., applied for a disability pension under the Canada Pension Plan (CPP). Her application was based on complex regional pain syndrome, significant functional limitations, and cognitive difficulties caused by the medications that she takes. Her application was denied by the Minister, and an appeal from the Minister’s decision was dismissed by the Tribunal’s General Division.

[3] In November 2017, I granted the Appellant’s application requesting leave to appeal the General Division’s decision. Since then, the Minister has conceded that the General Division made reviewable errors that warrant overturning its decision (AD3). In the circumstances, I have concluded that the matter should now be returned to the General Division for reconsideration by a different member.

Issue

[4] Did the General Division commit errors that justify the Appeal Division’s intervention and, if so, what is the appropriate remedy on the facts of this case?

Analysis

Legal framework

[5] Before allowing the appeal, I must be satisfied that the General Division committed at least one of the three errors set out in subsection 58(1) of the Department of Employment and Social Development Act (DESD Act). Generally speaking, did the General Division fail to observe a principle of natural justice, commit an error in law when making its decision, or base 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] When considering the degree of scrutiny with which I should review the General Division’s decision, I have focused on the language set out in the DESD Act.^{Footnote 1} As a result, I am entitled to intervene based on any breach of natural justice or on any error of law. For an error of fact to justify my intervention, however, it must be an error on which the General Division’s decision was based and the error must have been made in a perverse or capricious manner or without regard for the material before it.

Did the General Division commit reviewable errors of fact and law? Yes.

[7] The General Division concluded that the Appellant did not have a severe disability, as defined in paragraph 42(2)(a) of the CPP. In my leave to appeal decision, however, I noted that the General Division’s analysis might have completely or partially overlooked important pieces of evidence that contradicted its findings, including:

1. the report of Dr. Naidoo, the Appellant’s family physician, in which she concluded that the Appellant has an ongoing permanent disability that renders her incapable of even the simplest of day-to-day activities and tasks of self-care (GD2-136);
2. the report of Dr. Gandhi, a psychiatrist, in which the Appellant was diagnosed with major depression, her recovery from which is complicated by chronic pain, and in which she was assessed as having a GAF score of 50–65 (GD2-59);
3. reports from three massage therapists that generally indicated that the Appellant’s condition had improved minimally over time and that she was unable to return to work (GD6-11 to 13);
4. the Appellant’s own oral testimony, in which she described her pain, her deteriorating physical and mental health, and her increasing functional limitations; and
5. written statements prepared by the Appellant’s mother and spouse, both of which spoke to a sudden and dramatic deterioration of the Appellant’s health, the challenges that she faces when performing her activities of daily living, and the side effects associated with the powerful pain medication that she takes on a daily basis (GD2-42 to 46). In the statement written by the Appellant’s spouse, he also described the toll that the Appellant’s deteriorating health had taken on him too.

[8] In addition, it does not appear that the General Division considered the cumulative effect of the Appellant’s pain, depression, and cognitive difficulties, as required by the Federal Court of Appeal in Bungay v. Canada (Attorney General).^{Footnote 2}

[9] Following my leave to appeal decision, the Minister conceded that the General Division had not addressed all of the evidence and had failed to assess the Appellant’s employability in light of all her medical conditions (AD3). I agree, and conclude that the General Division made reviewable errors of law and fact under paragraphs 58(1)(b) and (c) of the DESD Act.

[10] The Appellant raised other errors that the General Division might have made, such as a breach of natural justice by not allowing her mother and spouse to give evidence at the hearing, but I need not decide that issue in light of the concession and conclusion above.

What is the appropriate remedy on the facts of this case?

[11] Having found that reviewable errors were made, I must now decide among the possible remedies available to me under subsection 59(1) of the DESD Act. On the one hand, the Appellant argues that I should give the decision that the General Division ought to have given since it has been nearly five years since she first filed her application for CPP disability benefits (AD2-4). And on the other hand, the Minister argues that I should send the matter back to the General Division for reconsideration, highlighting the General Division’s role as the trier of fact (AD3-2).

[12] Importantly, the Minister concedes only that reviewable errors were made by the General Division. However, it remains unconvinced that the Appellant was disabled, as defined under the CPP, on or before December 31, 2012 (the end of her minimum qualifying period).

[13] In these situations, the Appeal Division normally sends matters back for reconsideration by the General Division, since weighing and assessing evidence lies at the heart of its mandate and jurisdiction.^{Footnote 3} Nevertheless, I am aware that I have the authority to grant the relief sought by the Appellant.^{Footnote 4} Factors that might persuade me to substitute my decision for that of the General Division include the relevant legal framework, the nature of the benefits, the obviousness of the outcome, the length of time that has passed since the application for a CPP disability pension was made, and whether any additional delay caused by sending the matter back for reconsideration could bring the administration of justice into disrepute.^{Footnote 5}

[14] While I am mindful of the delay in this case, the nature of the benefits and regulatory scheme at play, as well as the goals of quick and expeditious decision-making^{Footnote 6}, I have nevertheless concluded that the matter should be sent back to the General Division for reconsideration. I have reached that conclusion for the following reasons:

1. The outcome of this case is not obvious. Rather, there is contradictory evidence that needs to be weighed and assessed;
2. As highlighted by the Appellant, the nature of her condition and the lack of objective medical evidence to support it means that her credibility, and that of any supporting witnesses, becomes all the more important. This too is something that the General Division is best placed to assess; and
3. On a related note, the oral evidence of the Appellant’s mother and spouse has never been heard.

[15] In the circumstances, I have concluded that the matter should be sent back to the General Division for reconsideration by a different member, but with directions that are aimed at expediting the making of a fresh decision.

Conclusion

[16] The appeal is allowed, with the following directions:

1. The matter is sent back to the General Division for reconsideration by a different member;
2. To the extent possible, the General Division is asked to prioritize the assignment of this matter to a new General Division member;
3. Given the errors of fact and law that it contains, all copies of the General Division’s decision dated September 23, 2016, will be removed from the file prior to reassignment to a new General Division member; and
4. The audio recording of the videoconference hearing held on August 23, 2016, will remain on the file, thus leaving open the possibility that it may be relied on by the General Division (in whole or in part) when making a fresh decision. If this is an issue on which the parties wish to comment, they are encouraged to do so within 20 days of receiving notice of the new General Division file number, or within such additional time as the General Division may allow.