Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed, and the matter is returned to the General Division for reconsideration in accordance with the reasons and the directions in this decision.

Overview

[2] The Appellant, K. C., seeks a disability pension under the Canada Pension Plan (CPP). She maintains that depression, fibromyalgia, perianal cancer, shoulder and back pain, bulging disks, and spinal stenosis prevent her from working. She last worked in 2013.

[3] The General Division of the Social Security Tribunal of Canada (Tribunal) found that the Appellant did not have a severe and prolonged disability prior to the end of her minimum qualifying period (MQP), and it thereby dismissed her appeal.

[4] The Appellant seeks to appeal that decision, based on alleged errors of law and serious errors in the findings of fact.

[5] The Respondent, the Minister of Employment and Social Development, submits that the General Division’s decision is defensible on the record and should be shown deference.

[6] The Tribunal’s Appeal Division granted leave to appeal on the basis that the appeal had a reasonable chance of success. The appeal hearing was held by telephone conference, and both parties participated.

[7] The Appeal Division finds that the General Division erred in law in making its decision.

Issues

[8] Did the General Division err in law by (a) failing to consider binding jurisprudence; or (b) failing to explain its reasons for deciding the weight to afford contradictory evidence?

[9] If the General Division did err in law, should the Appeal Division refer the matter back to the General Division for reconsideration, or can the Appeal Division render the decision that the General Division should have rendered?

Analysis

[10] The only grounds of appeal to the Appeal Division are that the General Division erred in law, failed to observe a principle of natural justice, or 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} Because the General Division may have erred in law in making its decision, the Appeal Division granted leave to appeal.

[11] The Appeal Division does not owe any deference to the General Division’s conclusions on questions of law.^{Footnote 2} In addition, the Appeal Division may find an error in law whether or not it appears on the face of the record.^{Footnote 3}

Issue 1: Did the General Division err in law?

Failure to consider binding jurisprudence

[12] In this case, the General Division failed to consider Federal Court of Appeal cases that are relevant to the issues in this matter and that are binding on this Tribunal.

[13] In order to qualify for a CPP disability pension, the Appellant must have had a severe and prolonged disability on or before December 31, 2005, or in the period from January 1, 2013, to May 31, 2013. The terms “severe” and “prolonged” are defined in the CPP and have been interpreted extensively in the jurisprudence.

[14] In its analysis of the issue of whether the Appellant had a disability as defined in the CPP, the General Division referred to Federal Court of Appeal jurisprudence. However, in its analysis, it is not apparent that the General Division applied this jurisprudence.

[15] The General Division cited the following case law: Villani v. Canada (A.G.), 2001 FCA 248; Canada (MHRD) v. Rice, 2002 FCA 47; Klabouch v. Canada (Social Development), 2008 FCA 33; Inclima v. Canada (A.G.), 2003 FCA 117; Bungay v. Canada (Attorney General), 2011 FCA 47.^{Footnote 4}

[16] However, in its one-paragraph analysis, the General Division does not say which of the cited jurisprudence it is applying. It states only:

[28] The Tribunal acknowledges that the Appellant has limitations due to the injuries sustained in her car accident. However, the medical evidence, and the fact that she was able to return to school and work after her MQP, demonstrate that she did not have a severe disability. There is also no indication that she became disabled between January 1, 2013 and May 31, 2013, as she continued to work after this time period. The majority of treatments for her symptoms occurred after her prorated MQP or are still outstanding. ^{Footnote 5}

[17] The Appellant was injured in a car accident in 2003 and was off work. She earned her GED in 2007 and took college courses in 2008. She returned to work in 2008 and held positions at Walmart, Tim Hortons, and Canada Post. The Appellant last worked in late 2013 or early 2014 at Canada Post as a seasonal worker.^{Footnote 6}

[18] The General Division was required to conduct an assessment of the “severe” criterion in a real-world context.^{Footnote 7} This means keeping in mind such factors as a person’s age, level of education, language proficiency, and past work and life experience, when determining whether that person is incapable regularly of pursuing any substantially gainful occupation. This assessment seeks to determine a claimant’s workforce attachment in light of their medical condition and the limitations resulting from this condition. If the General Division failed to reasonably determine the Appellant’s workforce attachment, then the Villani real-world assessment was not complete.^{Footnote 8}

[19] I find that the General Division’s assessment was incomplete. It considered the Appellant’s return to school and work and then concluded that this demonstrated that she did not have a severe disability. However, it did not consider whether her efforts to return to work were unsuccessful due to her health condition.

[20] The General Division appears to have concluded that her return to work and school after her 2005 MQP was necessarily meant that she did not have a severe disability by the end of 2005. The Appellant had a prorated MQP in the period from January 1, 2013, to May 31, 2013. The General Division appears to have concluded that her work at Canada Post in late 2013 demonstrated that she did not have a severe disability on or before the end of her 2013 MQP.

[21] In the D’Errico case, the claimant had made “numerous attempts to pursue work” during a period of time when her condition worsened from “its already poor state.”^{Footnote 9} Her actual real-world attempts to work demonstrated that she was unable to pursue “with consistent frequency” or “regularly” any “truly remunerative occupation.”^{Footnote 10}

[22] The General Division considered only the Appellant’s efforts to return to school and work. It did not, however, consider whether these efforts were unsuccessful due to her health condition, despite the Appellant’s submission on this point.

[23] The Respondent argues that certain documents in the appeal record demonstrate that the Appellant’s efforts to return to school and work were not unsuccessful due to her health condition and that where they were unsuccessful, it was for other reasons. The Respondent invites the Appeal Division to conclude that the Appellant’s last employment—at Canada Post—was unsuccessful because it was not suitable for the Appellant’s limitations.

[24] This approach to an appeal before the Appeal Division is problematic. It is not the Appeal Division’s role to find facts and assess the evidence; that is the General Division’s role. There was evidence before the General Division about the Appellant’s work at Canada Post. Had the Respondent been represented at the General Division hearing, its representative could have cross-examined the Appellant on the reason(s) her work at Canada Post was unsuccessful. Asking the Appeal Division to draw inferences from the evidence presented before the General Division is essentially asking the Appeal Division to find facts. The necessary fact-finding ought to have been done in the first instance. By asking the Appeal Division to find facts, the Respondent is saying that the General Division did not make necessary findings of fact.

[25] Contrary to binding jurisprudence, the General Division did not consider the following:

1. Whether the Appellant had capacity, prior to the end of her MQP, to perform part-time work, modified activities, sedentary occupations, or the like.^{Footnote 11} Instead of assessing the Appellant’s residual work capacity, if any, the General Division accepted that her school and work rule out a finding of disability.
2. If the Appellant had some work capacity prior to the end of her MQP, then she must show that efforts to obtain and maintain employment were unsuccessful by reason of a health condition.^{Footnote 12} The General Division noted that the Appellant had worked after her MQP; it considered this to mean that she did not have a severe disability. The General Division did not consider whether the Appellant’s efforts to obtain and maintain employment were unsuccessful by reason of her health condition.

[26] Therefore, I find that the General Division erred in law in making its decision.

Failure to explain reasons for the weight assigned to contradictory evidence

[27] Having already found that the General Division erred in law by failing to consider binding jurisprudence, I need not decide this issue. However, I will make some observations.

[28] The Respondent submits that in concluding that the Appellant did not have a severe disability, “it might have been preferable for the General Division to extend its analysis.” Nevertheless, the Respondent argues that the reasons provided were appropriate and sufficient.

[29] I disagree.

[30] If the General Division decides that contradictory evidence should be dismissed or assigned little or no weight at all, it must explain the reasons for the decision.^{Footnote 13}

[31] The Appellant presented evidence at the General Division that her efforts to return to work were unsuccessful due to her health condition. The Respondent points to documentary evidence that it argues demonstrates other reasons. These arguments are directly contradictory, yet the General Division did not explain its assessment of this evidence at all.

[32] By failing to explain its reasons for deciding the weight to be assigned to contradictory evidence, the General Division erred in law.

[33] I note that one of the purposes of written reasons is to explain to parties why a decision was made. This requires some explanation by the General Division of how it assessed and weighed the evidence. In addition, the General Division’s reasons must disclose an intelligible basis for its decision capable of permitting meaningful review by the Appeal Division.

Issue 2: If the General Division did err in law, should the Appeal Division refer the matter back to the General Division for reconsideration, or can the Appeal Division render the decision that the General Division should have rendered?

[34] In order to render a decision on whether the Respondent had a severe and prolonged disability on or before December 31, 2005, or in the period from January 1, 2013, to May 31, 2013, that considers and applies relevant jurisprudence, it will be necessary to review the facts in detail and weigh the evidence.

[35] I find that the General Division’s approach to fact-finding was not sufficiently complete for me to render the decision that the General Division should have rendered.

[36] In addition, it will be necessary to consider the evidence and credibility, find the facts, and weigh the evidence. These tasks are better suited to the General Division than to the Appeal Division.

Conclusion

[37] The appeal is allowed. The matter is referred back to the General Division for reconsideration.