Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

Leave to appeal is granted.

Overview

[1] The Applicant, F. W., who is now 52 years old, attended school up to Grade 11 and worked for a number of years as a self-employed roofer. In August 2006, he was involved in a motor vehicle accident that left him with pain and limitations in his neck, back, and shoulders. He shut down his roofing business a year later. In 2008, he started another roofing company but was unable to make a go of it, because he could no longer manage the physical aspects of the business.

[2] In May 2013, Mr. F. W. applied for a disability pension under the Canada Pension Plan (CPP). The Respondent, the Minister of Employment and Social Development (Minister), refused his application because it determined that his disability was not “severe and prolonged” as of the minimum qualifying period (MQP), which ended on December 31, 2009.

[3] Mr. F. W. appealed the Minister’s refusal to the General Division of the Social Security Tribunal. In April 2016, the General Division dismissed the appeal. Mr. F. W. appealed this decision to the Appeal Division, which subsequently granted leave to appeal. The parties then reached an agreement to return the matter to the General Division for a de novo hearing. In July 2017, a different member of the General Division conducted a hearing by videoconference but, again, found that Mr. F. W. had failed to demonstrate that he was “incapable regularly of pursuing any substantially gainful occupation” as of the MQP. While the General Division acknowledged that Mr. F. W. was no longer capable of performing physical work such as roofing, it found that he had not made sufficient effort to pursue a more sedentary occupation.

[4] On November 6, 2017, Mr. F. W.’ legal representative requested leave to appeal from the Tribunal’s Appeal Division, alleging numerous errors on the part of the General Division.

Issues

[5] According to section 58 of the Department of Employment and Social Development Act (DESDA), there are only three grounds of appeal to the Appeal Division: The General Division (i) failed to observe a principle of natural justice; (ii) erred in law; or (iii) based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material. An appeal may be brought only if the Appeal Division first grants leave to appeal,^{Footnote 1} but the Appeal Division must first be satisfied that the appeal has a reasonable chance of success.^{Footnote 2} The Federal Court of Appeal has held that a reasonable chance of success is akin to an arguable case at law.^{Footnote 3}

[6] Mr. F. W.’ representative has raised the following questions:

1. Did the General Division err in law by failing to assess the severity of Mr. F. W.’ impairments in a “real-world context” as required by Villani v. Canada?^{Footnote 4}
2. Did the General Division erroneously infer, from the reports of Dr. Axelrod and Dr. Ogilvie-Harris, that Mr. F. W. had been cleared to pursue lighter work?
3. Did the General Division base its decision on an erroneous finding that Mr. F. W. was a successful “businessman,” with all the capacities and skills that the term connotes?

Analysis

[7] Having reviewed Mr. F. W.’ submissions against the record, I am satisfied that he has an arguable case.

[8] Mr. F. W.’ grounds of appeal are linked. He argues that the General Division failed to assess the severity of his claimed disability in the context of his limited education and work experience. Mr. F. W. further alleges that the General Division mischaracterized the latter, attributing to him a level of business sophistication that he did not possess. This leads to the question of whether Mr. F. W. had residual capacity and whether the General Division erred in finding that he had made insufficient effort to seek alternative work, as required by Inclima v. Canada.^{Footnote 5}

[9] There is no doubt that the General Division was cognizant of its responsibility to apply Villani, citing the case twice in its decision and referring repeatedly to Mr. F. W.’ age, education, and background. At this preliminary stage, I see no need to address every aspect of the submissions, but I do see an argument that the General Division may have mischaracterized Mr. F. W.’ work experience. In paragraph 48, the General Division wrote: “While he had just a grade 11 education, he was able to operate his own successful business prior to his accident which could provide him with a number of transferable skills.” Mr. F. W. denies that his business was successful and that he, himself, actually operated it. Rather, he claims that his wife took care of paperwork and general business affairs, with the assistance of an outside accountant; he “managed” his business only to the extent of overseeing job sites and the quality of work. That, he submits, was not sedentary work.

[10] Although I have not yet listened to the audio recording of the July 2017 videoconference, I think it is possible that the General Division disregarded evidence that Mrs. W., rather than Mr. F. W., was responsible for the administration of the roofing business. I am aware that, in paragraph 8 of its decision, the General Division took note of a December 2013 letter in which Mr. F. W. described his wife’s role in the venture, but I also see that this information played no part in its subsequent analysis. In my view, there is an arguable case that the General Division made an inference, unsupported by facts, that Mr. F. W. was, by himself, a successful businessman. If this was an erroneous finding, then it was likely a material one, affecting the General Division’s Villani and Inclima analyses.

Conclusion

[11] I am granting leave to appeal on all grounds. Should the parties choose to make further submissions, they are free to offer their views on whether a further hearing is required and, if so, what format is appropriate.

[12] This decision granting leave to appeal does not presume the result of the appeal on the merits of the case.