Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] The Appellant, 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 (MVA) 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.

[3] In May 2013, the Appellant 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.

[4] The Appellant appealed the Minister’s refusal to the General Division of the Social Security Tribunal. In April 2016, the General Division dismissed the appeal. The Appellant 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 the Appellant 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 the Appellant 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.

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

[6] In a decision dated September 21, 2017, I granted leave to appeal because I saw an arguable case that the General Division had (i) failed to assess the severity of the Appellant’s impairments in a real-world context; (ii) erroneously inferred that the Appellant had been cleared to pursue lighter work by two specialists; and (iii) found that the Appellant was a successful businessman, despite evidence to the contrary.

[7] Having reviewed the parties’ oral and written submissions, I have concluded that none of the Appellant’s reasons for appealing have sufficient merit to warrant overturning the General Division’s decision.

Issues

[8] Under the Department of Employment and Social Development Act (DESDA), the only grounds of appeal to the Appeal Division are that 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 that it made in a perverse or capricious manner or without regard for the material before it.^{Footnote 1}

[9] I must address the following questions:

Analysis

Issue 1: Did the General Division assess the severity of the Appellant’s impairments in a “real-world context?”

[10] The Appellant submits that the General Division failed to properly apply Villani v. Canada,^{Footnote 2} which requires a decision-maker, in assessing disability, to view the claimant as a whole person, taking into account background factors such as age, education, language proficiency, and work and life experience. In essence, the Appellant argues that the General Division did not direct its mind toward his real-world employability.

[11] I see little merit in this submission, which amounts to a request to reassess the evidence regarding the Appellant’s personal characteristics. I note the words of the Federal Court of Appeal in Villani:

[…] as long as the decision-maker applies the correct legal test for severity—that is, applies the ordinary meaning of every word in the statutory definition of severity in subparagraph 42(2)(a)(i) he or she will be in a position to judge on the facts whether, in practical terms, an applicant is incapable regularly of pursuing any substantially gainful occupation. The assessment of the applicant’s circumstances is a question of judgment with which this Court will be reluctant to interfere.

This passage suggests that the General Division, as trier of fact, should be afforded a degree of deference in how it assesses a claimant’s background. It also implies that whetherthe test for disability was applied matters more thanhow it was applied. This approach happens to align with recent Federal Court of Appeal^{Footnote 3} decisions that have sharply demarcated the three grounds of appeal available under s. 58(1) of the DESDA. In short, the court now holds that the Appeal Division does not have jurisdiction to intervene on questions of mixed fact and law; it is therefore necessary to ask whether a reason for appealing can be clearly characterized as an error of law or as an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.

[12] Whether the General Division correctly applied the real-world testis a question with high legal content. In this case, the General Division accurately summarized Villani in paragraph 41 of its decision and later assessed the impact of the Appellant’s impairments in the context of his personal characteristics:

[48] The Appellant submits that the Tribunal must consider his age, education and background and in doing so would find that only physical labouring positions would be available that he would not be able to do. In fact, the Appellant was just 43 years old and in 2009 had many years until the normal retirement age. 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.

[13] In applying Villani, the General Division relied on certain findings of fact that I will examine in the next section, but the issue at this juncture is not whether the General Division’s Villani analysis was reasonable but whether it contained an error of law. I see no reason to overturn the General Division’s assessment where it has noted the correct legal test and taken the Appellant’s background into account. While the Appellant may not agree with the outcome, it emerges from what strikes me as a good-faith attempt to assess his employability using the Villani principles.

Issue 2: Did the General Division base its decision on an erroneous finding that the Appellant was a “successful” businessman?

[14] The Appellant’s work history and business experience are questions of fact. Under s. 58(1)(c) of the DESDA, a decision is subject to appeal if it is “based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it.” This wording suggests that a factual error is fatal to a decision only if it is material to the outcome and clearly egregious or at odds with the record.

[15] There is little doubt that the General Division’s decision turned, at least in part, on the Appellant’s “success” in running a roofing company for many years. As seen in paragraph 48 of the decision (quoted above), the General Division found that the Appellant’s business experience balanced his lack of education, endowing him with transferrable skills that it believed would assist him in adapting to a new career. The Appellant submits that this finding disregarded the evidence on the record, which indicated that his business was at best modestly profitable and that it was a going concern only through the involvement of his wife, who handled all administrative functions.

[16] Having considered the parties’ submissions, I am satisfied that the General Division did not make an error that was squarely contradicted or unsupported by the evidence. My review of the written record indicates that the Appellant referred to his wife’s role in the roofing business once—in a December 2013 letter^{Footnote 4} in which he wrote:

Me and my wife worked together as one for about 6 hours per day over a 18-20 hour period per day over a 7 day week Around 5:00  am to about 12-1:00 am, now that's a long time frame, with very little work getting done because of my situation.

[17] However, the context of this statement makes it clear that the Appellant is referring to the period after his August 2006 MVA, when he struggled to get a new roofing venture up and running after the dissolution of his first business. Later in the letter, he contrasts his functionality before and after his injuries, leaving the impression that he was at one time able to manage all aspects of the business by himself:

Roofing is a seasonal job and always has been and even before my accident but I was a runner, supervisor, estimator and a very good leader. I was the key and I was unable to do my job and that was the problem.

[…]

Before my accident in Aug. 2006 my wife was a house wife looking after our 4 children and would help take some phone calls and messages, for me while I was out working and running the business.

This letter was summarized in the decision, although it played no role in the General Division’s analysis proper. Still, its contents—in particular, its reference to “running the business”—are not inconsistent with the General Division’s finding that the Appellant had acquired skills that went beyond manual labour. I have also listened to the audio recording of the July 2017 hearing and heard nothing to suggest that the Appellant’s wife had anything more than peripheral involvement in his business prior to the MVA.

[18] As for the Appellant’s insistence that his business was not successful, he again appears to be blurring the distinction between his pre- and post-MVA capacities. It would have been one thing had the evidence showed that the Appellant had never achieved any success as a self-employed roofer, but his own words indicate otherwise:

I was running a very successful business built up over 5 years and this was going to be my best year of about 1·million dollars in sales and my plan was to keep sales there or beyond for every year following. I would have been able to do that easily…^{Footnote 5}

The Appellant testified to similar effect at the hearing. The audio recording reveals that he was specifically asked about the state of his business prior to the MVA, to which he replied, “My business was really doing well.”^{Footnote 6}

[19] It may well have been that, even when he was healthy, the Appellant’s roofing business was kept afloat only through his wife’s assistance, but the record did not indicate this. A decision-maker can rely only on the material that is put before it, and I see no indication that the General Division misconstrued the available evidence pertaining to the Appellant’s potential adaptability in the labour market—certainly not to the degree demanded by s. 58(1)(c) of the DESDA.

Issue 3: Did the General Division erroneously infer, from the reports of Dr. Axelrod and Dr. Ogilvie-Harris, that the Appellant had been cleared to pursue lighter work?

[20] There is little doubt that the General Division based much of its decision on what it found was the Appellant’s failure to retrain or to attempt alternate work. At paragraph 45, the General Division found the Appellant’s testimony about his activities unreliable, adding, “This is not to say that the Appellant was not suffering from back and shoulder impairments, only that the evidence suggests that there was a capacity to do other, sedentary work at his MQP date.”

[21] In drawing an adverse inference from the Appellant’s supposed lack of effort to seek alternative employment, the General Division was rightly guided by Inclima v. Canada,^{Footnote 7} in which the Federal Court of Appeal imposed on CPP disability claimants a duty to mitigate their impairments:

[…] an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition.

Every word in this passage carries significance. First, only when there is somework capacity (as opposed to none at all) is a tribunal obligated to investigate whether a claimant has taken steps to find work that is suitable to his or her condition. Second, it is insufficient to show effort at obtaining employment; a claimant must also show effort at maintaining employment, suggesting that it is necessary to secure suitable work and give it a fair try. Finally, a claimant must prove that the suitable work came to an end because of his or her claimed health problems.

[22] As noted, the General Division relied on the reports of Dr. Axelrod and Dr. Ogilvie‑Harris to establish that the Appellant had residual capacity. In paragraph 44, the General Division wrote:

Dr. Ogilvie-Harris stated that the Appellant is going to need a job that is sedentary and light and Dr. Axelrod “wholeheartedly” agreed with him. Dr. Axelrod’s report is just 10 months prior to the MQP. At that time while he had some difficulties dressing he was able to “manage himself quite well”. He was also responsible for grass and snow care and that his sons helped him. During this time the Appellant continued to work at his business, albeit with some difficulty.

[23] The Appellant argues that neither Dr. Axelrod nor Dr. Ogilvie-Harris made definitive statements about his capacity; rather, they only indicted that he mightbe a candidate for sedentary work.

[24] My review of the documentary record compels me to disagree. A little more than a year before the end of the MQP, Dr. Ogilvie-Harris wrote that the Appellant would be unlikely to return to work as a roofer, adding, “He is going to need a job, which is sedentary to light in nature.”^{Footnote 8} A few months later, Dr. Axelrod also ruled out heavy labour for the Appellant but suggested that he “seek alternate employment in a sedentary type of field.”^{Footnote 9} There is nothing in these reports to indicate that the Appellant was completely disabled from all forms of work and that it was reasonable for the General Division to place weight on them in arriving at the conclusion that he had residual capacity, having also considered the Appellant’s impairments in the context of his background and personal characteristics. 

[25] In support of his claim to be completely disabled, the Appellant points to various items of evidence, or aspects thereof, that he submits the General Division ignored or unduly discounted. I am not persuaded by this argument. First, there is the general presumption, set out by the Federal Court of Appeal in Simpson v. Canada,^{Footnote 10} that a decision-maker is presumed to have considered all the evidence and need not refer in its reasons to each and every item of information before it. Second, at least one of the reports that the General Division supposedly overlooked was apparently never presented to it; I was unable to find the MDAC vocational report dated August 11, 2014,^{Footnote 11} anywhere in the hearing file. Finally, the Appellant submits that the General Division failed to consider his chronic pain syndrome, but its decision notes in paragraph 17 that he was diagnosed with this condition sometime after 2011. This diagnosis came well after the MQP, which may explain why the General Division apparently gave it little weight.

[26] In the end, I must find that the Appellant’s submissions on this point amount to a bid to reargue a major issue that was before the General Division. Because the Appeal Division does not have jurisdiction to consider evidence of disability on its merits, this ground of appeal cannot succeed.

Conclusion

[27] For the reasons discussed above, the Appellant has not demonstrated to me that, on balance, the General Division committed an error that falls within the grounds listed in s. 58(1) of the DESDA.

[28] The appeal is therefore dismissed.