Canada Pension Plan (CPP) disability

Decision and reasons

Decision

[1] The appeal is dismissed.

Overview

[2] I. D. (Claimant) worked as a doctor in Russia before she moved to Canada. In Canada, the Claimant earned a university degree. She worked in an office until 2008, and sporadically after that.

[3] The Claimant applied for a Canada Pension Plan disability pension. She says that she is disabled by a number of medical conditions, including Meniere’s disease; panic attacks and depression; and back pain.

[4] The Minister of Employment and Social Development refused the application. The Claimant appealed this decision to the Tribunal. The Tribunal’s General Division dismissed the appeal. It decided that although the Claimant may not be able to work now, there was insufficient evidence to prove that she had a severe disability before the end of her minimum qualifying period (MQP – the date by which a claimant must prove that they are disabled to receive the disability pension). The Claimant’s MQP ended on December 31, 2012.

[5] I granted leave (permission) to appeal this decision to the Tribunal’s Appeal Division. The appeal had a reasonable chance of success because the General Division may have failed to provide a fair process when the interpretation at the hearing was imprecise.

[6] I have now read the parties’ written arguments and listened to their oral arguments. I have also read the General Division decision and listened to relevant parts of the General Division hearing recording. The General Division provided a fair process. It did not base its decision on any important factual errors. Therefore, the appeal is dismissed.

Preliminary matters

[7] At the Appeal Division hearing, the Claimant’s representative argued that I should be persuaded by a General Division decision in another case. She had not filed a copy of the decision with the Tribunal. The parties agreed that the representative would file a copy of the decision with the Tribunal. The Minister’s representative would respond to this in writing. I considered the parties’ arguments about this in making my decision.

[8] The Claimant filed a number of medical reports to support her position on appeal.^{Footnote 1} However, the Appeal Division does not ordinarily accept new evidence on appeal.^{Footnote 2} Therefore, I did not consider this evidence.

[9] The Claimant also filed two affidavits with her application to the Appeal Division.^{Footnote 3} They were not presented to the General Division. The Minister’s representative argues that they are new evidence and should not be considered in making the decision on this appeal. I have reviewed the affidavits. The first affidavit is a repetition of evidence that was filed with the General Division. The second affidavit repeats some evidence, and repeats arguments made in other written submissions. Therefore, I did not consider these affidavits in making this decision.

Issues

[10] Did the General Division fail to provide a fair process because:

1. the interpretation at the hearing was imprecise, or
2. it gave insufficient notice of the hearing to the Claimant?

[11] Did the General Division make an error in law because it failed to consider the Claimant’s condition holistically?

[12] Did the General Division make an error in how it weighed the evidence?

[13] Did the General Division base its decision on at least one of the following important factual errors:

1. that the Claimant’s ongoing bleeding was not related to her 2011 surgery;
2. that the Claimant’s mental health illness did not exist before the end of the MQP;
3. that the Claimant is intolerant of medications;
4. that the Claimant may have contracted an autoimmune disorder after a blood transfusion; or
5. that the Claimant developed a goitre when she developed thyroiditis as a complication to Hepatitis C?

Analysis

[14] An appeal to the Tribunal’s Appeal Division is not a rehearing of the original claim. Instead, the Appeal Division can only decide whether the General Division:

1. failed to provide a fair process;
2. failed to decide an issue that it should have, or decided an issue that it should not have;
3. made an error in law; or
4. based its decision on an important factual error.^{Footnote 4}

Fair process

[15] The General Division must provide the parties with a fair process. This means that each party to an appeal should have the opportunity to fully present their legal 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.

[16] The Claimant says that the General Division failed to do this in two ways.

[17] First, the Claimant says that the General Division failed to provide a fair process because the language interpretation was inadequate. Interpretation at a hearing need not be perfect. It must be continuous, precise, impartial, competent and contemporaneous. Precise means that the interpretation should reflect the evidence given without any improvement of form, grammar or any other embellishment. Competent means that the quality of the interpretation must be high enough to ensure that justice is done and is seen to be done.^{Footnote 5}

[18] The Claimant says that the interpretation was inadequate because the interpreter’s tone was harsh, so it did not reflect what she said, and he misinterpreted her words. However, despite being asked, the Claimant did not provide any examples of words or phrases that were misinterpreted or of harsh tone.

[19] In addition, before she began to testify at the General Division hearing, the Claimant said that she did not need complete interpretation during the hearing, but only some words, for example when she is tired or discussed her symptoms.^{Footnote 6} The remainder of the hearing was conducted in English.

[20] Further, at no time during the hearing did the Claimant or her representative raise any issue about interpretation or its inadequacy. This could easily have been done during the testimony or during the representative`s final submissions.

[21] For these reasons, I am not satisfied that the General Division failed to provide a fair process in this way.

[22] Second, the Claimant says that the General Division failed to provide a fair process because it gave only ten days’ advance notice of the hearing. Although this was not a lot of advance notice, it was not unfair. The Claimant filed a Notice of Readiness with the Tribunal in May 2020. In this document she stated that she was ready to proceed with the hearing, and had filed all her documents. The hearing was held approximately six months later, in September 2020. This six-month period allowed the Claimant additional time to fully prepare for the hearing.

[23] Further, the Claimant could have asked that the hearing be adjourned if she required more time to prepare. The Claimant’s representative says that she did not do so because the appeal process had taken so long and the Claimant is in dire financial circumstances. However, the Claimant could have requested a short adjournment, or at least investigated whether this was available. She did not.

[24] Finally, it is common for parties to be given an opportunity to file additional relevant documents after the hearing so they have a full opportunity to present their legal case. Again, the Claimant made no such request.

[25] For all of these reasons, the Claimant’s arguments that the General Division failed to provide enough notice for the hearing fail.

The Claimant’s condition was considered holistically

[26] The General Division must consider all of a claimant’s conditions holistically to decide whether they are disabled.^{Footnote 7} The Claimant says that the General Division made an error because it failed to do this.

[27] However, the General Division considered the evidence about all of the Claimant’s conditions, including complications from having Hepatitis C early in her life, gynecological surgery, and her mental health illnesses.^{Footnote 8} The decision concludes that the medical evidence does not show that the Claimant’s conditions, alone or in combination, had any effect on her capacity to pursue substantially gainful occupation.^{Footnote 9} This shows that the General Division examined the Claimant holistically.

[28] Therefore, this ground of appeal fails.

The evidence

[29] The Claimant disagrees with how the General Division weighed the evidence she presented. For example, she says that greater weight should have been given to the reports written by her family doctor. However, The General Division is to receive all of the evidence from the parties, weigh it and make a decision based on the facts and the law. It is not for the Appeal Division to reweigh the evidence to reach a different conclusion.^{Footnote 10} Therefore, the appeal must fail on the basis that the Claimant disagrees with how the General Division weighed the evidence.

[30] The Claimant also asks that the Appeal Division give greater weight to medical evidence that was filed with the Tribunal after the General Division made its decision. However, new evidence generally is not permitted on an appeal to the Appeal Division.^{Footnote 11} The medical evidence that the Claimant wishes to rely on does not fall into any exception to this rule.^{Footnote 12} Therefore, this evidence cannot be considered.

[31] Therefore, this ground of appeal fails.

Important factual errors

[32] The Claimant argues that the appeal should be allowed because the General Division based its decision on a number of important factual errors. To succeed on this basis, she must prove three things:

1. that a finding of fact was erroneous (wrong);
2. that the finding was made perversely, capriciously, or without regard for the material that was before the General Division; and
3. that the decision was based on this finding of fact.^{Footnote 13}

[33] Below are reasons why the appeal fails on this basis.

The Claimant’s post-surgery bleeding

[34] The first factual error that the Claimant points to is the statement in the General Division decision about her bleeding in 2011. The General Division decision summarizes the Claimant’s evidence, including her testimony that her doctors determined that the bleeding had nothing to do with her surgery.^{Footnote 14} The decision also states that medical records show that the Claimant was investigated for a number of things after her surgery, including bleeding.^{Footnote 15}

[35] However, the General Division makes no finding of fact regarding the cause of the bleeding. The decision also is not based on its cause.

The Claimant’s mental health illness

[36] The second factual error that the Claimant points to as an error is about her mental health illness. She says that the General Division found as fact that her mental health problems did not exist because she was not referred to a psychiatrist. However, the General Division did not make this finding of fact.

The Claimant’s medication intolerance

[37] Third, the Claimant says that the General Division’s finding of fact that she is intolerant of medication was wrong. The decision states that the Claimant testified that when she was a young girl she was ill and became intolerant of many medications.^{Footnote 16} This is not a finding of fact. It is part of the summary of the Claimant’s testimony.

[38] In addition, the decision is not based on the Claimant’s intolerance of medication.

The Claimant’s autoimmune disorder after transfusion

[39] Fourth, the Claimant says that the General Division’s finding of fact regarding her developing an autoimmune disorder after receiving a blood transfusion was wrong. However, the General Division made no finding of fact about this. The General Division decision states that the Claimant testified that she has blood transfusions after an appendectomy as a child, and may have contracted Hepatitis C or another autoimmune disorder as a result.^{Footnote 17} This is simply a summary of the Claimant’s evidence on this issue.

Complications to Hepatitis C

[40] Last, the Claimant says that the General Division was wrong when it wrote that she developed a goitre around 2002.^{Footnote 18} She says that she developed thyroiditis as a result of Hepatitis C, not a goitre. However, again the statement about the Claimant developing a goitre is not a finding of fact, but part of the summary of the Claimant’s testimony. In addition, the decision was not based on whether the Claimant developed a goitre or other condition as a result of Hepatitis C.

[41] The General Division did not overlook or misconstrue any important information.

Persuasive decision

[42] Finally, the Claimant says that the Appeal Division should allow the appeal, and that the General Division’s decision in another appeal is similar, and should guide the decision-making in this appeal.^{Footnote 19} I am not persuaded that I should follow that decision. The facts are different than in this appeal. In that case, the claimant only worked as a hairdresser. She became disabled after a car accident. The General Division relied on the claimant’s testimony because it was confirmed in written evidence, and the General Division found the Claimant credible.

[43] In this case, the Claimant earned post-secondary degrees in two countries, and had work experience as a doctor in Russia and in office work in Canada. The Claimant’s testimony and medical evidence differed. Therefore, I will not adopt the reasoning or conclusion from that decision.

Conclusion

[44] The appeal is dismissed for these reasons.