Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed.

Overview

[2] The Appellant last worked as a case subjects records and electronic file clerk. In October 2014, she submitted an application for a disability pension under the Canada Pension Plan (CPP). Her application was based on numerous health issues, including rheumatoid arthritis, chronic pain syndrome, fibromyalgia, irritable bowel syndrome, dyslipidemia, hepatic steatosis, hypertension, and endometriosis, along with related sensory and physical impairments.

[3] The Appellant’s CPP disability application was initially denied by the Respondent (Minister), and the Social Security Tribunal’s General Division later dismissed an appeal from the Minister’s decision. In January 2018, however, I granted leave to appeal to the Tribunal’s Appeal Division, concluding that the General Division might have committed an error by failing to consider certain medical documents simply because they were prepared after the end of Appellant’s minimum qualifying period. In addition, I invited submissions on whether the General Division might have committed an error of law or breached a principle of nature justice when it decided against holding an oral hearing in this case.

[4] Following that decision, the parties were given an opportunity to file submissions on the merits of the appeal. As part of that process, the Minister conceded that the General Division failed to observe a principle of natural justice in this case, that the appeal should be allowed, and that the matter should be sent back to the General Division for a newhearing by a different member. I agree.

Issue

[5] Did the General Division breach a principle of natural justice by failing to hold an oral hearing based on the circumstances of this case?

[6] Given the result on this issue, I do not need to deal with any of the other issues that the Appellant has raised.

Analysis

[7] The General Division had originally scheduled a teleconference hearing in this matter because (among other reasons) credibility was not a prevailing issue and there were “gaps in the information in the file and/or a need for clarification.”^{Footnote 1} At the appointed hour, however, the General Division member and the Appellant’s daughter were able to connect to the teleconference, but not the Appellant. As a result, the hearing did not go ahead. Nevertheless, it seems that the General Division member and the Appellant’s daughter might have had a discussion about options going forward.

[8] Later the same day, the Appellant wrote to the Tribunal, explaining the technical difficulties that she encountered while making numerous attempts to join the teleconference.^{Footnote 2} She also said that she had discussed the options with her daughter and felt comfortable with the matter proceeding in writing or via email and confirmed her contact information. While “written questions and answers” was a form of hearing available to the General Division member, she instead decided the case on the basis of the documents and submissions already filed, meaning that there was no hearing of any kind.

[9] Under these circumstances, I agree that the General Division’s decision to proceed on the basis of the written record amounted to a breach of the principles of natural justice, as described in paragraph 58(1)(a) of the Department of Employment and Social Development Act (DESD Act), because the General Division

1. a) decided against holding a hearing based (in part) on the completeness of the record, but in so doing, the General Division contradicted an earlier finding that it had made and never explained its contradiction;^{Footnote 3}
2. b) misinterpreted the Appellant’s email as indicating that it could proceed exclusively on the documents and submissions already filed;^{Footnote 4} and
3. c) ignored the Appellant’s letter dated November 7, 2016, in which she indicated that there were things that she wanted to explain at the hearing (because she did not have time to do so in writing) and because she wanted her daughter to give evidence at the hearing.^{Footnote 5}

[10]   Since the Appellant was denied a hearing, there is still evidence to be gathered and assessed. As a result, I also agree with the Minister’s submission that the matter should be sent back to the General Division for reconsideration by a different member, with the directions set out below.^{Footnote 6}

Conclusion

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

1. The matter is sent back to the General Division for a new hearing by a different member; and
2. All copies of the General Division’s decision dated April 21, 2017, should be removed from the file before reassignment to the new General Division member.