Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is dismissed.

Overview

[2] A. H. (Claimant) was born in Pakistan. He lived and worked in Germany before moving to Canada. In Canada he operated a restaurant and worked at farmers’ markets. The Claimant was in a car accident in 2009 and was injured. As a result he has a number of medical conditions, including mental illness, chronic pain and hearing loss. The Claimant applied for a Canada Pension Plan disability pension and claimed that he was disabled by his medical conditions.

[3] The Minister of Employment and Social Development refused the application because it decided that the Claimant did not have a severe disability. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division held a hearing by teleconference and dismissed the appeal for the same reason.

[4] I granted leave to appeal the General Division’s decision to the Tribunal’s Appeal Division because there was a reasonable chance that the appeal would succeed on the basis that the General Division failed to observe a principle of natural justice when it proceeded by teleconference. However, after considering all of the documents filed with the Tribunal and the recording of the General Division hearing, I am not persuaded that the General Division made this error. The appeal is therefore dismissed.

Preliminary matters

[5] This appeal was decided on the basis of the documents filed with the Tribunal, after considering the following:

• the appeal was expedited because of the circumstances of the case;
• The legal issue to be decided is clear and straightforward;
• The parties’ legal positions on this issue were clear;
• The parties were given the opportunity to file written submissions. The Claimant did not file any written material; the Minister did;
• The Tribunal notified the parties that the decision would be made after submissions were filed; and
• The Social Security Tribunal Regulations require that proceedings be concluded as quickly as the considerations of fairness and natural justice permit.^{Footnote 1}

Issues

[6] Did the General Division fail to observe a principle of natural justice when it heard the Claimant’s appeal by teleconference rather than in-person?

Analysis

The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operation. It provides rules for appeals to the Appeal Division. An appeal is not a re-hearing of the original claim, but a determination of whether the General Division made an error under the DESD Act. The Act also states that there are only three kinds of errors that can be considered. They are that that the General Division failed to observe a principle of natural justice, made an error 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 before it.^{Footnote 2} 

[7] The principles of natural justice are concerned with ensuring that parties to an appeal have the opportunity to present their case to the Tribunal, to know and answer the other party’s legal case, and to have a decision made by an impartial decision maker based on the law and the facts.

[8] The Claimant argues that the General Division failed to observe a principle of natural justice when it held the hearing by teleconference. However, the Social Security Tribunal Regulations state that a hearing may be held in writing, by teleconference, videoconference or persona appearance.^{Footnote 3} It is for the General Division to decide what form the hearing will take. This is a discretionary decision, and this discretion is not to be fettered.

[9] The General Division gave reasons for proceeding by teleconference, including that the parties had previously attempted to participate in a hearing by videoconference and this did not work due to technical issues, so the parties agreed to a teleconference hearing.^{Footnote 4} The Claimant does not suggest that this was improper.

[10] The Federal Court considered a case where a disability pension claimant argued that the Tribunal had failed to observe a principle of natural justice when it held a teleconference hearing. The Court states that as the Claimant had not pointed to any evidence that was overlooked, did not allege that there were technical difficulties with the teleconference, and given that the General Division has discretion to decide how to hold hearings, the Tribunal had not erred because the hearing was held by teleconference.^{Footnote 5}

[11] This case is the same. The Claimant does not suggest that there were any technical problems with the teleconference hearing. He has not pointed to any evidence that was overlooked. I have listened to the General Division hearing recording. The Claimant was represented by counsel who presented his case by asking him questions and making oral argument. The General Division member also asked questions to clarify evidence and obtain evidence. Although the Claimant’s answers to some questions were not responsive, he was given adequate opportunities to clarify what he said. No important information was overlooked or misconstrued.

[12] The Claimant was also assisted by an interpreter. He does not suggest that the interpreter did not adequately interpret what was said during the hearing.

[13] In addition, during the General Division hearing the Claimant discussed his hearing loss, and that he first obtained hearing aids in 2002, and worked with them.^{Footnote 6} At no time did the Claimant say that he could not hear properly at the hearing, or that he did not understand questions posed to him because of his hearing loss.

[14] Therefore, I am satisfied that the General Division observed the principles of natural justice. The Claimant was able to fully present his case to the Tribunal and answer the other party’s legal case.  The appeal fails.

Conclusion

[15] The appeal is dismissed for these reasons.