Canada Pension Plan (CPP) disability

Decision and Reasons

Decision

[1] The appeal is allowed. This matter will be returned to the General Division for rehearing.

Overview

[2] The Claimant is a former truck driver who last worked in 2001. He is now 57 years old. In June 2000, he was involved in a motor vehicle collision that killed a passenger in the other vehicle. The Claimant did not sustain any physical injuries, but his family physician later diagnosed him with delayed-onset post-traumatic stress disorder (PTSD). In November 2001, the Claimant was involved in a second accident, falling 30 feet from tree while on a hunting trip. This time, he sustained multiple fractures on the left side of his body.

[3] In February 2014, the Claimant applied for a Canada Pension Plan (CPP) disability pension claiming that he could no longer work because of PTSD, anxiety, chronic myofascial pain, and post-traumatic arthritis. The Minister refused the application because it found that the Claimant’s disability was not “severe and prolonged,” as defined by the Canada Pension Plan, during his minimum qualifying period (MQP), which ended on December 31, 2002.

[4] The Claimant appealed the Minister’s refusal to the General Division of the Social Security Tribunal. The General Division conducted a hearing by teleconference and, in a decision dated June 22, 2016, found that the Claimant had not shown that he was disabled as of the MQP.

[5] In August 2016, the Claimant requested leave to appeal from the Tribunal’s Appeal Division, alleging that the General Division had committed various errors in rendering its decision. The Appeal Division granted leave to appeal and, in a decision dated March 27, 2018, found that the General Division had erred in law by failing to consider the totality of the Claimant’s condition. The Appeal Division specifically found that the General Division had not taken into account the Claimant’s anxiety and depression on his ability to work. The Appeal Division referred the matter back to the General Division for “reconsideration on this basis” without further direction.

[6] Against the Claimant’s objections^{Footnote 1}, the same member who presided over the first General Division hearing heard the second, which he conducted solely by way of documentary review. In a decision dated June 10, 2019, the presiding General Division noted that, except for his failure to consider the Claimant’s condition in its totality, the Appeal Division had endorsed his previous decision. He declared that, in accordance with the Appeal Division’s direction, he had considered all of the Claimant’s impairments—including his anxiety and depression—and had found no reason to change his mind. The member concluded by reaffirming his view that the Claimant was not disabled.

[7] The Claimant has now returned to the Appeal Division, alleging that the General Division created a reasonable apprehension of bias when it assigned his case to the same member who had heard it previously. The Claimant has also reiterated all of the alleged errors that he had previously raised in his August 2016 application for leave to appeal. Last September, I granted leave to appeal because I saw a reasonable chance of success on appeal for at least one of the Claimant’s arguments.

Issues

[8] There are only three grounds of appeal to the Appeal Division. A claimant must show that the General Division failed to observe a principle of natural justice (that is, acted unfairly), interpreted the law incorrectly, or based its decision on an important factual error^{Footnote 2}.

[9] I must answer the following questions:

1. Issue 1: Did the General Division act unfairly by assigning the Claimant’s case to the same member who had heard it previously?
2. Issue 2: Did the General Division commit an error when it considered the Claimant’s appeal for a second time

Analysis

Issue 1: Did the General Division act unfairly by assigning the Claimant’s case to the same member who heard it previously?

[10] The Claimant alleges that the General Division, as an institutional entity, breached a principle of natural justice when it assigned the Claimant’s second hearing to the same member who had presided over the first. The Claimant argues that the member, in effect, judged his own decision, which in turn gave rise to a reasonable apprehension of bias.

[11] For reasons that follow, I do not agree. I see nothing fundamentally wrong with the practice of returning matters to tribunal members for the purpose of correcting their own mistakes. Here, the presiding General Division member was not asked to judge his own decision, nor did he, in fact, do so.

[12] Bias suggests a state of mind that is in some way predisposed to a particular result. The threshold for a finding of bias is high, and the burden of proof lies with the party alleging that it exists. The Supreme Court of Canada has stated that test for bias is, “What would an informed person, viewing the matter realistically and practically and having thought the matter through conclude?” A real likelihood of bias must be demonstrated, with a mere suspicion not being enough. Whether there is bias depends on the particular facts and circumstances of each case^{Footnote 3}. Relevant considerations include, among others, the context in which the decision is made, the relationship of the issues on the two hearings, and the finality of the second decision^{Footnote 4}.

[13] In this case, the Appeal Division found that the General Division had failed to consider all of the medical evidence—in particular, information about the Claimant’s anxiety and depression. In her March 2018 decision, my colleague on the Appeal Division ordered the matter to be “referred back to the General Division for reconsideration on this basis.” She did not place any restrictions on who was to rehear the appeal, although she did implicitly limit the scope of the appeal to the one error.

[14] The Vice-Chair of the General Division, presumably in the interest of administrative efficiency, assigned the file to the same member who had heard the matter three years earlier. The member declined to admit further oral evidence, opting instead to proceed solely by way of documentary review. Since the Appeal Division had found fault with only one aspect of his June 2016 decision, he attempted to cure that decision by doing what he had neglected to do previously: address the Claimant’s depression and anxiety.

[15] One can criticize the member’s analysis and disagree with his conclusions, but I do not think one can reasonably say he was biased, and I do not think the General Division acted unfairly by assigning him this file on return.

[16] Members of administrative tribunals such as the General Division are presumed to be impartial. They are not infallible, and they inevitably bring their own attitudes, approaches, and outlooks to the decision-making process, but they are also trained to assess evidence as fairly and objectively as possible. When the General Division member considered this case for a second time, he accepted the Appeal Division’s finding that he had committed an error of law, and he made what strikes me as a good faith, if flawed, effort to address it. In dismissing the appeal for a second time, the member denied the Claimant a full hearing and again failed to consider the evidence in its totality, but I do not think that these errors by themselves were evidence of a closed mind.

[17] Of course, justice must not only be done, it must be seen to be done. While the Claimant perceived the member to be biased against him, that is not the applicable legal test. What matters is whether a reasonable person would apprehend bias. The key word is “reasonable.”

[18] I do not see the Claimant’s apprehension of bias as reasonable. His insistence that he could get a fair hearing only if his file were reassigned to another member implies that a judge or adjudicator cannot bring an open mind to proceedings where they have previously issued rulings on related matters. This goes against the presumption that courts and tribunals are unbiased. This presumption is so important that the Supreme Court has imposed a high standard of proof on a party alleging bias in judicial or quasi-judicial proceedings. It is perhaps understandable that the Claimant wanted his appeal reviewed by a “fresh set of eyes,” but this is insufficient reason for a decision-maker to be shifted from a case.

[19] In Janssen-Ortho Inc. v Apotex Inc^{Footnote 5}., the Federal Court of Appeal addressed the issue of reasonable apprehension of bias in the context of matters referred back for reconsideration. The Court concluded that judges or tribunals are not expected to recuse themselves simply because they considered the matter before: “Something much more fundamental must be present to justify a recusal. Indeed, we find it hard to believe that judges or tribunals would declare themselves biased simply because they are being asked to reconsider or re-determine a matter.”

[20] A finding against a particular party, even a series of findings against that party, is not in itself an indication of bias. There may be alternative explanations for the adverse finding, including the possibility that the party’s case is without substance. The General Division was ordered to correct its error, and the presiding member did so to the best of his ability. In the end, he committed further errors, but I do not think they were evidence of a closed mind, nor do I believe that the General Division was in effect judging his own decision.

Issue 2: Did the General Division commit an error when it considered the Claimant’s appeal for a second time?

[21] As discussed last month during the oral component of this hearing, the Appeal Division does not have any authority to revisit matters that it has already decided. However, it has a right and a duty, when called upon, to examine the General Division’s conduct on matters that have been sent back to it for reconsideration. Although I found no evidence of bias on the part of the General Division, that is not to say that its second decision was without error.

[22] The Appeal Division returned this matter to the General Division for the following reason:

1. [I]n the course of determining whether the Claimant suffered from a severe disability on or before the MQP and continuously thereafter, the member considered only the skeletal injuries and the PTSD. He concluded that neither condition rendered the Claimant incapable regularly of pursuing any substantially gainful occupation. He did not explicitly consider the Claimant’s depression and anxiety when he made this determination. As directed by the Court, all aspects of a claimant’s medical condition should be considered, not just the biggest impairment or the main impairment. On this basis, I find the General Division did not consider the totality of the Claimant’s medical condition [emphasis added].

The Appeal Division returned the matter to the General Division, whose vice chair assigned it to the same member who had presided over the first hearing. As I have said above, in the absence of any signs of bias, I see nothing wrong in requiring a decision-maker to correct his or her own errors. I also think it is not necessary in all cases for a decision-maker to conduct a completely new hearing on reconsideration; where the Appeal Division has identified only a few discrete errors, it may be acceptable for that decision-maker to avoid a complete redo of the hearing in favour of a narrow inquiry restricted to one or two issues.

[23] In this case, the Appeal Division identified only a single error in the General Division’s decision, but that error was broad. The Appeal Division found that the General Division had failed to consider the Claimant’s anxiety and depression, but it also found that it failed to consider his conditions in their totality, as required by Villani v Canada and other cases^{Footnote 6}. As in any disability claim, the General Division had to assess the Claimant’s capacity to perform substantially gainful employment in light of numerous factors—not just his physical injuries and his psychological condition, but also his background and personal characteristics, such as his age, education, and work experience. Because there is inevitably a complex interplay among all of these factors, they cannot be considered in isolation from one another, and must be assessed together—hence the need, emphasized by Villani, to look at claimants as “whole” persons.

[24] Case law repeatedly cautions decision-makers against considering claimants’ impairments in silos^{Footnote 7}, yet this is just what General Division did when it chose to consider the Claimant’s anxiety and depression in a separate decision. The General Division cited the appropriate law and stated that it intended to restrict its decision to reconsideration of the totality of the Claimant’s medical condition. However, it then spent the bulk of its analysis examining all of the medical reports that mentioned either depression or anxiety, finding that since the Claimant had not engaged in regular treatment with a mental health specialist, his psychological impairments were moderate. The General Division concluded that the Claimant had good intellectual skills and the potential to retrain if needed. It added:

1. I have considered the totality of impairments. Upon reconsideration I find the conclusion in paragraph 52 of the original decision is confirmed upon the assessment of the totality of impairments and the effect on the Claimant’s capability regularly of pursuing any substantially gainful occupation^{Footnote 8}.

However, saying that you have considered totality does not necessarily mean that you have actually done so. The General Division’s decision indicates that it assessed the Claimant’s depression and anxiety and then incorporated by reference all findings from its first decision, which by then was nearly three years old, into the second. This approach resulted in a fragmented analysis, and I saw no real attempt to look at the Claimant as a whole person. This perpetuated the error of law that led the Appeal Division to return this matter to the General Division in the first place.

[25] The General Division compounded the problem by opting to conduct its second hearing solely on the basis of the documentary record. The Tribunal has the discretionary authority to decide on the form of hearing^{Footnote 9}, but such discretion must be exercised in accordance with the principles of procedural fairness. One of those principles is the right to be heard. That right is not absolute, and whether to allow oral testimony will depend on various factors, including the importance of the matter to the claimant and the nature of the issues on appeal. In this case, the Claimant’s disability claim was vitally important to him, and it required the person deciding his claim to process a large volume of evidence documenting his complex medical condition. The General Division stood accused of ignoring an important component of that condition, and it is therefore reasonable to assume that the Claimant’s depression and anxiety—and their impact on his ability to work—were not top of the member’s mind when he spoke to the Claimant during the June 2016 teleconference hearing.

[26] When the Appeal Division returned the matter to the General Division, the member decided that there was no need to “re-hear” the Claimant’s testimony because he had already done so:

1. The Tribunal is to conduct proceedings as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. Certainly, it is quicker to decide a matter based on a review of the evidence than to have all the parties attend and repeat their evidence. A complete rehearing of the Appeal would not be the most expeditious and least expensive determination. Natural justice is not offended^{Footnote 10}.

At that point, this proceeding had been alive for more than four years, and I can understand why the member felt the need to bring it to a close. However, expediency is not the only consideration, and the Claimant was on record asking for another opportunity to testify about his disability. It was open to the member to limit the scope of that testimony to the Claimant’s anxiety and depression and the impact that it had, given his physical injuries and his personal profile, on his employability. Such testimony could have potentially offered greater insight into the Claimant as a whole person during the MQP, but the General Division chose not to hear it. In my view, given the circumstances that sent this matter to the General Division for a second time, that amounted to a failure of natural justice.

[27] I am aware that, if the General Division had followed my view of what it means to consider totality, then it would have ended up conducting something approaching a completely fresh hearing, rather than the abbreviated version that the member thought appropriate. So be it. Disability assessment has many moving parts, but it is not modular—one cannot easily switch in or switch out components without the entire apparatus falling apart.

Remedy

[28] The Appeal Division can provide a remedy for errors committed by the General Division. I have the power to give the decision that the General Division should have given; to refer the matter back to the General Division for reconsideration in accordance with directions; or to confirm, rescind, or vary the General Division’s decision^{Footnote 11}.

[29] The Appeal Division is required to conduct proceedings as quickly as circumstances and considerations of fairness allow^{Footnote 12} but, in this case, I feel my only option is to return this matter to the General Division for rehearing yet again.

[30] I do not think that the record is complete enough to allow me to decide this matter on its merits. The General Division’s failure to observe a principle of natural justice led to the exclusion of evidence that, had it been considered, might have produced a different outcome. Unlike the Appeal Division, the General Division’s primary mandate is to weigh evidence and make findings of fact. As such, it is better positioned than I am to hear the Claimant’s testimony about his anxiety and depression and to explore whatever avenues of inquiry that may arise from it.

Conclusion

[31] By considering the Claimant’s anxiety and depression in a separate decision, in isolation from its findings about his other impairments, the General Division replicated its prior failure to consider the Claimant’s work capacity in its totality. In doing so, it also denied the Claimant his right to a full hearing.

[32] Because the record is not sufficiently complete to allow me to decide this matter on its merits, I am referring it back to the General Division for another hearing to consider the Claimant’s condition in its totality as of the MQP.

[33] In keeping with my views on the subject, I will leave it to the General Division to decide whether this file would be best assigned to the same member who has heard it on previous occasions. However the General Division chooses to proceed, I am directing it to conduct an oral hearing by way of teleconference, videoconference, or personal appearance.