I. S. v. Minister of Human Resources and Skills Development
- Social Security Tribunal of Canada - Appeal Division - Leave to Appeal Decision
- Tribunal member:
- Valerie Hazlett Parker
- Hearing date:
- Hearing type:
- I. S. and Minister of Human Resources and Skills Development
- Application for leave to appeal is refused
- Decision date:
- April 30, 2014
- Reference number:
- I. S. v. Minister of Human Resources and Skills Development, 2014 SSTAD 33
 The Tribunal refuses leave to appeal to the Appeal Division of the Social Security Tribunal.
 On June 19, 2013, a Review Tribunal determined that a Canada Pension Plan disability pension was not payable. The Applicant filed an application for leave to appeal (the "Application") with the Appeal Division of the Social Security Tribunal (the Tribunal) on September 5, 2013, within the time permitted by the statute.
 The Tribunal must decide whether the appeal has a reasonable chance of success.
 According to subsections 56(1) and 58(3) of the Department of Employment and Social Development (DESD) Act, "an appeal to the Appeal Division may only be brought if leave to appeal is granted" and "the Appeal Division must either grant or refuse leave to appeal".
 Subsection 58(1) of the DESD Act states that the only grounds of appeal are the following:
- a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
- b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
- c) The General Division 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.
 The decision of the Review Tribunal is considered a decision of the General Division.
 Subsection 58(2) of the DESD Act provides that "leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success".
 The Applicant submitted that leave to appeal should be granted because:
- a) The Review Tribunal made an erroneous finding of fact regarding when the Applicant’s headaches became a problem;
- b) The Review Tribunal did not quote entire paragraphs of medical reports regarding the Applicant’s headaches, and fibromyalgia, but only sentences from the reports;
- c) The Review Tribunal did not consider the totality of the facts in the medical report regarding the Applicant’s headaches;
- d) The Review Tribunal cannot conclude that pain is not evident because the objective report revealed "no cause" for the pain;
- e) The Review Tribunal did not provide an analysis of how it concluded that the Applicant had residual capacity to work;
- f) The Review Tribunal took the Applicant’s and the medical evidence out of context.
 The Respondent made no submissions.
 Although a leave to appeal application is a first, and lower, hurdle to meet than the one that must be met on the hearing of the appeal on the merits, some arguable ground upon which the proposed appeal might succeed is needed in order for leave to be granted: Kerth v. Canada (Minister of Development),  FCJ No. 1252 (FC).
 Furthermore, the Federal Court of Appeal has found that an arguable case at law is akin to determining whether legally an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 4, Fancy v. Canada (Attorney General), 2010 FCA 63.
 The Applicant argued, first, that the Review Tribunal erred in finding when headaches became a problem for her. This may be so. In order for this to be a ground of appeal that has a reasonable chance of success, however, the error must be made in a perverse or capricious manner. The Concise Oxford Dictionary Ninth Edition defines "perverse" as deliberately or stubbornly departing from what is reasonable or required. It defines "capricious" as irregular or unpredictable. In this case, I find that the conclusion that headaches were not a problem for the Appellant until 2012 not to have been made in a perverse or capricious manner. The medical reports the Appellant referred to in support of this argument refer to neck pain investigations, not procedures for headaches. The Review Tribunal conclusion did not depart from what was reasonable, nor was the conclusion unpredictable. The Review Tribunal clearly considered the material before it. Therefore, this ground of appeal does not have a reasonable chance of success.
 Next, the Applicant argued that, in two instances, only sentences of medical reports were referred to in the Review Tribunal decision, not the entire paragraph. In the Simpson v. Canada (Attorney General), 2012 FCA 82 decision, the Federal Court of Appeal stated clearly that the Review Tribunal decision need not refer in its reasons to each and every piece of evidence before it, but is presumed to have considered all of the evidence. The Applicant has not rebutted this presumption in her argument, as she acknowledged that the reports were referred to. The Review Tribunal decision summarized all of the evidence before it. The sentences referred to were not taken out of context. Therefore, I find that this ground of appeal does not have a reasonable chance of success.
 The Applicant argued, further, that the Review Tribunal did not consider the totality of the evidence before it. She did not, however, outline any evidence that was before the Review Tribunal and not considered by it. The Review Tribunal decision considered all of the Applicant’s medical conditions and acknowledged her functional limitations. Therefore, this ground of appeal does not have a reasonable chance of success.
 The Applicant also argued that the Review Tribunal cannot conclude that because no cause for pain was found it did not exist. This is a correct statement. The Review Tribunal did not find that the pain did not exist; it found that the Applicant was not disabled under the CPP. Hence, this argument is not a ground of appeal that has a reasonable chance of success.
 Next, the Applicant argued that the Review Tribunal did not provide any analysis as to how it concluded that the Applicant had residual capacity to work. I find that it did. The Review Tribunal decision sets out reasons for this conclusion. Therefore, the Applicant has not raised a ground of appeal with a reasonable chance of success with this argument.
 Finally, the Applicant argued that the Review Tribunal took the oral and medical evidence out of context. She did not provide any factual basis for this argument. Without this I cannot find that this ground of appeal has a reasonable chance of success.
 With the above arguments, the Applicant essentially asks that I reconsider and reweigh the evidence that was before the Review Tribunal. The Simpson decision is clear that assigning weight to evidence is for the trier of fact, not the Member considering leave to appeal from that decision. Therefore, this invitation to reweigh the evidence to reach a different conclusion than that of the Review Tribunal does not raise grounds of appeal with a reasonable chance of success.
 The Application is refused for the reasons set out above.
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