M. R. v. Minister of Employment and Social Development
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- Social Security Tribunal decision - Appeal Division
- Valerie Hazlett Parker
- Hearing date:
- June 27, 2018
- Hearing type:
- M. R. and Minister of Employment and Social Development
- Appeal dismissed
- Decision date:
- July 17, 2018
- Reference number:
- M. R. v. Minister of Employment and Social Development, 2018 SST 745
Other decision(s) related to this appeal:
Decision and reasons
 The appeal is dismissed.
 M. R. (Claimant) completed Grade 11 before joining the paid workforce. He worked in a number of physically demanding jobs, with troubled youth, and then for a church doing administrative tasks on a part-time basis. He left his job at the church when it was sold. He then worked at a call centre. The Claimant applied for a Canada Pension Plan disability pension and claimed that he was disabled by fibromyalgia, pain, mental illness and other symptoms.
 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. The Claimant’s appeal from this decision is dismissed because the General Division considered all of the relevant legal principles and did not base its decision on any erroneous finding of fact regarding the Claimant’s co-operation in his health care or that there was no medical evidence at the relevant time.
 At the hearing of the appeal, counsel for the Claimant argued, among other things, that the General Division member was biased. This argument had not been made in any of the written material. The leave to appeal decision states that the parties are not restricted to the grounds of appeal considered in that decision. The Respondent was given time to respond to this argument in writing because it had not had any notice that this argument would be made.
 At the hearing, counsel for the Claimant also abandoned her argument that the General Division had failed to observe a principle of natural justice because part of the General Division hearing recording was inaudible.
 Did the General Division make an error in law in one of the following ways:
- by failing to consider whether the Claimant’s last two employers were benevolent employers;
- by failing to consider whether the Claimant’s incapacity was regular;
- by failing to consider the legal principles in Canada (Attorney General) v. St-Louis;Footnote 1
- by failing to consider that the Claimant’s explanation for not participating in treatment was reasonable; or
- by failing to consider how the Claimant’s physical limitations impacted his employability?
 Did the General Division base its decision on any of the following erroneous findings of fact:
- that the Claimant failed to cooperate in his healthcare; or
- that there was a complete lack of medical reports at the relevant time?
 Was the General Division biased?
 The Department of Employment and Social Development Act (DESD Act) governs the Tribunal’s operation. It provides only three grounds of appeal that can be considered by the Appeal Division. They are that the General Division failed to observe a principle of natural justice or made a jurisdictional error, 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 The Claimant asserts that the General Division erred in law, based its decision on erroneous findings of fact and failed to observe a principle of natural justice because it was biased. These arguments are examined below.
Issue 1: Did the General Division err in law?
a) Benevolent employer
 To be found disabled under the Canada Pension Plan (CPP), a claimant must have a disability that is both severe and prolonged. The CPP says that a disability is severe if it renders the claimant incapable regularly of pursuing any substantially gainful occupation.Footnote 3 This definition has been refined by court decisions. The Federal Court of Appeal teaches that a claimant who works for a benevolent employer may still be disabled despite the fact that they are working.Footnote 4 A benevolent employer is one who changes work expectations, including hours of work, performance expectations, remuneration, etc. to accommodate an employee beyond what would be expected in the commercial marketplace.Footnote 5
 The Claimant argues that the General Division erred in law because it failed to consider whether the Claimant’s last two employers were benevolent. The evidence before it was that, when the Claimant worked at the church, he worked approximately 20 hours each week and that the employer was not concerned about when he worked, so long as his duties were completed. The Claimant’s last job was part-time at a call centre. He could sit or stand as required while working. He lost this job when the employer asked him to work the night shift and on a full-time basis.
 The General Division decision summarizes the evidence regarding these jobs.Footnote 6 It also considered that the Claimant left these positions for reasons not related to his health—the church because it was sold and the call centre because he refused to work full-time.Footnote 7 Nothing suggests that either of these employers was benevolent. There was no evidence regarding any difference in the Claimant’s remuneration at either of these employers or that work expectations had been altered for him. There was also no evidence of any hardship to the employers because of accommodations made for the Claimant. Therefore, there was no basis upon which it could consider whether these employers were benevolent. The General Division cannot be faulted for not considering a legal issue for which there was no evidence.
b) Regular incapacity
 To be disabled under the CPP, a claimant must be incapable regularly of pursuing any substantially gainful occupation. The Claimant argues that the General Division erred in law because it failed to consider the regular aspect of his disability. He bases this argument on the fact that he could not commit to work full-time for the call centre and that he could not commit to a work schedule.Footnote 8 However, it is settled law that capacity for work can include part-time or seasonal work.Footnote 9 The Claimant worked part-time at the call centre and left this job only when he was required to work full-time and at night. He did not seek comparable part-time work with another employer.Footnote 10
 The Federal Court of Appeal instructs that a claimant is not disabled if they are able to work predictably.Footnote 11 In Atkinson, the Court confirmed that the claimant was not disabled because, in part, she was able to attend work 70% of the time and work productively. In this case, there was no evidence that the Claimant did not work as scheduled at the call centre, that he did not complete what was required of him at the call centre or the church, or that his employers were dissatisfied with his productivity or attendance. There is no evidentiary basis that the Claimant’s capacity to work was not regular. The General Division cannot be faulted for not considering legal issues that have no evidentiary basis. Therefore, the General Division did not make an error in law in this regard.
c) Canada (Attorney General) v. St-Louis
 In the St-Louis decision, the Federal Court stated that a disability pension claimant must make reasonable efforts to submit to and follow treatment recommendations or, if not, establish that their non-compliance was reasonable. In addition, their entire condition must be examined in a “real world” fashion, such that the claimant’s personal characteristics must also be considered.
 The Claimant argues that the General Division erred in law because it failed to consider the impact of his physical limitations on his capacity to work and because it failed to rely on the 2014 medical report that accompanied his disability pension application.Footnote 12
 First, the General Division considered the Claimant’s physical limitations: the decision states that the Claimant wanted to work part-time because of his medical condition;Footnote 13 that his symptoms are unpredictable, he struggles daily with pain and concentration, and he can only keyboard for a few minutes;Footnote 14 and that he requires a flexible work schedule and has limitations with sitting, standing, climbing stairs and lifting.Footnote 15 The General Division also considered the Claimant’s chronic pain and that he was able to work part-time despite this in 2011.Footnote 16
 Second, regarding the 2014 medical report, the Claimant contends that the General Division erred because it did not appreciate that the report described the Claimant’s condition from 2011 to 2014, and therefore included the time of the Claimant’s minimum qualifying period (MQP) (the date by which a claimant must be found to be disabled to receive the disability pension). The Claimant’s MQP is December 31, 2102.
 The 2014 medical report is summarized in the General Division decision.Footnote 17 It states that Dr. Light had known the Claimant for three years , began to treat the main medical condition in February 2011 and that the last visit was in November 2014. Dr. Light lists diagnoses of fibromyalgia, chronic fatigue syndrome, chronic backache, and osteoporosis. He describes severe and troublesome symptoms and gives a poor prognosis, stating that fibromyalgia is a permanent illness with no cure.
 The General Division concluded that there was a complete lack of medical reports and objective evidence for the relevant time period (around the MQP) and that this was a significant factor in determining that the Claimant was not disabled.Footnote 18 This conclusion was based on the Claimant’s testimony that he did not consult with any medical professionals from 2011 to 2014, and the fact that the report was written in 2014, two years after the MQP. In light of the Claimant’s testimony, it was reasonable for the General Division to rely on the 2014 report as evidence of the Claimant’s condition at that time, not at the time of the MQP. The Claimant’s disagreement with this conclusion is insufficient for the appeal to succeed.
d) the Claimant’s explanation for not being treated
 The Federal Court of Appeal also instructs that it is necessary to consider whether a claimant’s refusal to undergo treatment is reasonable and what impact that refusal has on their disability status.Footnote 19 The Claimant contends that the General Division erred in law because it did not consider this principle when making its decision. He argues that he did not undergo medical treatment from 2011 to 2014 because he had been dealing with his conditions for many years, had tried chiropractic treatment, medication, physiotherapy and acupuncture in the past without benefit, and did not want to repeat failure. This argument is set out in the decision.Footnote 20 The General Division considered this. It concluded that medical treatment may have resulted in improvement, and noted that the Claimant has an obligation to mitigate his condition and to cooperate in his health care. It reasoned that the Claimant’s complete rejection of recommended treatment was not reasonable.Footnote 21 It is not for the Appeal Division to reconsider this legal issue to render a different decision.Footnote 22 The appeal cannot succeed on this basis.
e) Impact of physical limitations on employability
 The Claimant argues, in addition, that the General Division erred in law because it failed to consider all of the Claimant’s physical conditions and their impact on his capacity regularly to pursue any substantially gainful occupation. However, the General Division lists the Claimant’s physical restrictionsFootnote 23 and summarizes the medical evidence regarding them.Footnote 24 After considering the evidence, it concluded that there was insufficient objective medical evidence relating to the relevant time period to establish that the Claimant had a severe disability.Footnote 25 The General Division also considered the Claimant’s personal characteristics including his age, employment history and education and concluded that these were not barriers to employment.Footnote 26 It is therefore clear that the General Division considered the Claimant’s limitations and their impact on his employability. The appeal fails on this basis.
Issue 2: Erroneous findings of fact
 One ground of appeal under the DESD Act is that the General Division based its decision on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material that was before it. To succeed on appeal on this ground, the Claimant must prove three things: that a finding of fact was erroneous, that it was made perversely, capriciously, or without regard for the material that was before the General Division, and that the decision was based on this finding of fact. The Claimant says that the General Division made two erroneous findings of fact.
a) The Claimant failed to cooperate in his health care
 The Claimant argues that the General Division’s statement that the Claimant failed to cooperate in his health care was an erroneous finding of fact upon which the decision was based. The General Division decision states that the Claimant has a personal responsibility to cooperate in his health care. The Claimant had tried a number of different treatments for his conditions. However, he did not seek out or receive any medical treatment from 2011 to 2014. The decision explains that, as a result, his condition may have deteriorated or not improved. There is an evidentiary basis for the finding of fact that the Claimant did not cooperate in his health care. It is not erroneous. The appeal cannot succeed on this basis.
b) A complete lack of medical reports at the relevant time
 The Claimant also argues that the General Division’s finding of fact that there was a complete lack of medical reports and objective evidence for a relevant time periodFootnote 27 was also an erroneous finding of fact upon which the decision was based. However, there is no documentary evidence around the time of the MQP. The Claimant testified that he did not seek medical treatment between 2011 and 2014. The December 2014 medical report sets out that Dr. Light began to treat the Claimant in 2011. The General Division reasonably interpreted it to describe the Claimant’s condition at the time of the report, not at the time of the MQP. Thus, there is an evidentiary basis for the General Division’s finding of fact that there was no medical or objective evidence at a relevant time (the MQP). This finding of fact is not erroneous. The appeal cannot succeed on this basis.
Issue 3: Was the General Division biased?
 Finally, the Claimant argues that the General Division was biased. The legal test for bias is that of a “reasonable likelihood or suspicion of bias,” the emphasis being not on the court’s perception of what is bias, but rather on the opinion of the reasonable person. This test has been stated by the Supreme Court of Canada asFootnote 28 “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision maker], whether consciously or unconsciously, would not decide fairly?” The General Division decision summarizes all of the evidence that was before it, including the Claimant’s medical evidence and testimony that treatment recommendations were made and not followed and why they weren’t followed, and both parties’ legal submissions. It also set out clearly the legal test that had to be met. The General Division weighed the evidence and applied the correct legal test to reach its decision. I am satisfied that a reasonable person, viewing this appeal realistically and practically, would conclude that the General Division was not biased. The appeal cannot succeed on this basis.
 The appeal is therefore dismissed.
Method of proceeding:
June 27, 2018
M. R., Appellant
Bozena Kordasiewicz, Counsel for the Appellant
Marie-Andrée Richard, Counsel for the Respondent
- Date modified: