Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] Leave to appeal is granted.

Overview

[2] The Applicant, J. A., was born in X and is a high school graduate. She worked as a waitress and a cook and then left the labour market to raise a family. She later returned to paid work and, in April 2008, took a job as a retail sales clerk in a shopping mall kiosk. Her knees became sore in January 2009, and she resigned the following month because she could no longer stand for extended periods. She has been diagnosed with fibromyalgia and has neither worked, nor looked for work, since.

[3] In March 2010, the Applicant applied for a disability pension under the Canada Pension Plan (CPP). The Respondent, the Minister of Employment and Social Development (Minister), refused the application because the Applicant had failed to demonstrate that she suffered from a “severe and prolonged” disability, as defined by s. 42(2)(a) of the CPP, as of the minimum qualifying period (MQP), which ended on December 31, 2008, or the prorated date of March 31, 2009.

[4] In June 2015, the Applicant applied for the CPP disability pension a second time. The MQP dates were unchanged. The Minister refused her application again. This time, the Applicant appealed the Minister’s refusal to the General Division of the Social Security Tribunal of Canada. Following a hearing by videoconference, the General Division issued a decision dated January 17, 2018, dismissing the Applicant’s appeal. While the General Division acknowledged that the Applicant was not capable of working that required her to stand for long periods, it found that she had not made any effort to seek alternate employment that would have permitted her to sit down.

[5] On April 4, 2018, the Applicant’s legal representative filed an application requesting leave to appeal with the Tribunal’s Appeal Division, alleging that the General Division had committed the following errors:

1. In paragraph 31 of its decision, the General Division implied that an improvement in the Applicant’s condition after the MQP indicated a capacity to work. This finding disregarded evidence that the Applicant still lacked the capacity to engage in a substantially gainful employment despite that improvement.
2. The General Division erred in assigning too little weight to the post-MQP medical evidence, particularly the reports of the Applicant’s family physician. While post-MQP evidence may merit lesser weight, the General Division discounted Dr. Urban’s 2015 CPP medical report and 2016 narrative report even though they essentially mirrored the content of his 2010 CPP medical report, which was produced closer to the MQP.
3. The General Division erred in its assessment of the Applicant’s capacity to pursue alternative work, ignoring the fact that she was already doing fairly light sales work when her medical conditions forced her to stop working. Although her job at the kiosk did involve standing, she indicated that she was permitted to sit during less busy periods.

Issues

[6] According to s. 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 failed to observe a principle of natural justice; erred in law; or 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}

[7] I must determine whether any of the Applicant’s submissions fall into one of the three grounds enumerated under s. 58 of the DESDA and whether any of them raise an arguable case.

Analysis

[8] Having reviewed the General Division’s decision against the underlying record, I am satisfied that the Applicant has an arguable case. At this juncture, I will address only the argument that, in my view, offers the Applicant her best chance of success on appeal.

[9] The General Division’s decision turned on a finding that the Applicant had failed to fulfill her obligation—imposed by Inclima v. Canada^{Footnote 4}—to make an effort to obtain and maintain alternate employment. Specifically, the General Division found:

Her own evidence was that she left that position because she was not able to stand for long periods, however, she did not make any efforts to seek sedentary employment that might have allowed her to sit and stand. The Tribunal does not accept her reason for not doing so as there is an obligation on her to explore substantially gainful occupations within her limitations.

[10] The Applicant submits that the General Division disregarded her evidence that her last job—selling clothes and sunglasses at a mall kiosk—did, in fact, allow her to sit from time to time. She alleges that the General Division thus erroneously concluded that she had not explored a more sedentary occupation because there are few jobs that are more sedentary than the one she already held. I have not yet listened to the audio recording of the December 13, 2017, hearing, but if it contains testimony to the effect that she was afforded opportunities to rest her legs in her last job, then she may have an arguable case on appeal.

Conclusion

[11] For the reasons discussed above, I am granting the Applicant unrestricted leave to appeal. Should the parties choose to make further submissions, they are also free to offer their views on whether an oral hearing is required and, if so, what format is appropriate.

[12] I am also interested in receiving submissions on what remedy would be appropriate under s. 59(1) of the DESDA, should the appeal be allowed.

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