Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The application for leave to appeal is granted.

Overview

[2] The Applicant, N. T., owned and operated a home-based daycare from 2001 until September 3, 2014, when she stopped working. She applied for a disability pension under the Canada Pension Plan (CPP) in January 2015, saying that she suffered from pain and fatigue and was unable to walk, run, lift, or manage stairs (GD2-110). It is obvious, however, that there are other conditions that also interfere with the Applicant’s ability to work.

[3] The Respondent, the Minister of Employment and Social Development (Minister), denied the Applicant’s request for a CPP disability pension. The Applicant appealed the Minister’s decision to the Social Security Tribunal’s General Division, but it too ruled against her. The Applicant is now seeking leave to appeal the General Division’s decision. In particular, she alleges that the General Division inappropriately drew an adverse inference against her.

Issue

[4] Is it arguable that the General Division committed an error of law by drawing an adverse inference against the Applicant?

Analysis

[5] The Appeal Division must first grant leave (or give permission) before this appeal can proceed any further. This is an initial step that is intended to filter out cases that have no reasonable chance of success.^{Footnote 1} The legal test that applicants need to meet at this stage is a low one: Is there any arguable ground upon which the proposed appeal might succeed?^{Footnote 2} The Applicant must show that this legal test has been met.^{Footnote 3}

The General Division arguably committed an error of law by drawing an adverse inference against the Applicant

[6] In September 2014, the Applicant started to experience body tremors that were followed by periods of weakness and even paralysis. Despite numerous investigations, these episodes remain poorly understood, though they have increased in frequency and duration to the point that, in March 2017, they were occurring almost daily and lasting from 20 to 45 minutes. In a letter from the Applicant’s family physician, the condition was described as a severe Lyme-like illness that had, until then, been resistant to treatment (GD11-2).

[7] When dismissing the appeal, the General Division did not assess the medical evidence or the Applicant’s degree of disability per se. Rather, it concluded that the Applicant had withheld highly important evidence that it was within her power to obtain and tried to characterize some of that evidence as weighing in her favour. As a result, the General Division applied a legal presumption that the evidence being withheld by the Applicant would have undermined her position, and it ruled against her. This legal presumption is sometimes referred to as the drawing of an adverse or unfavourable inference.

[8] In support of her position, the Applicant submits that an adverse inference can only be drawn when the evidence that is withheld is in the exclusive control of the party against whom the inference is drawn.^{Footnote 4} In this case, however, the medical evidence was not in the Applicant’s exclusive control since she had signed consent forms allowing the Minister to obtain personal information from her doctors.^{Footnote 5} Furthermore, sections 68 and 69 of the Canada Pension Plan Regulations give the Minister broad powers to compel the production of medical information as it sees fit.

[9] In my view, the Applicant’s arguments amount to an arguable ground upon which the proposed appeal might succeed, and leave to appeal is granted accordingly. More specifically, by drawing an adverse inference against the Applicant, the General Division might have committed an error of law, as described in paragraph 58(1)(b) of the Department of Employment and Social Development Act.

[10] To this I would add the following related questions, which could give rise to a concern that the General Division failed to observe a principle of natural justice or committed a different error of law:

1. Did the General Division inform the Applicant that it might draw an adverse inference against her and request submissions in this regard?
2. If not, was the General Division under any obligation to do so?
3. Regardless of the adverse inference, was the General Division required to assess the evidence before it and determine whether the Applicant met the criteria for receiving a CPP disability pension?

[11] Should it be necessary to answer some of these questions, I have asked that an audio recording of the General Division hearing be provided with this decision. If any party intends to rely on that recording in its submissions, the relevant portions of the recording must be identified with timestamp references.

[12] Though I have confirmed that there is an arguable ground on which the appeal could succeed, nothing in this decision should be taken as prejudging the result of the appeal on its merits.

Conclusion

[13] The application for leave to appeal is granted.

[14] As part of any additional submissions the parties might file, they could also address whether an oral hearing is required at the merit stage and, if so, propose the appropriate form of hearing (i.e. teleconference, videoconference or in-person).