T. C. v. Minister of Employment and Social Development
- Social Security Tribunal decision - Appeal Division - Leave to Appeal decision
- Hazelyn Ross
- Hearing date:
- Hearing type:
- T. C. and Minister of Employment and Social Development (formerly Minister of Human Resources and Skills Development)
- Application for leave to appeal is granted
- Decision date:
- May 25, 2015
- Reference number:
- T. C. v. Minister of Employment and Social Development, 2015 SSTAD 637
Other decision(s) related to this appeal:
 Leave to appeal to the Appeal Division of the Social Security Tribunal of Canada is granted.
 On March 2, 2015 the General Division of the Social Security Tribunal, (the Tribunal), issued a decision denying the Applicant a Canada Pension Plan, (CPP), disability benefit. The Applicant has filed an application seeking leave to appeal, (the Application), the General Division decision.
 The issue before the Tribunal is “does the Appeal have a reasonable chance of success?”
 Appeals of a General Division decision are governed by sections 56 to 59 of the Department of Employment and Social Development Act, (DESD Act). Subsections 56(1) and 58(3) govern the grant of leave to appeal, providing that “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(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.” Subsection 58(1) sets out the only grounds of appeal. They include breaches of natural justice; errors of law and errors of fact and errors of mixed fact and law.Footnote 1
 Counsel for the Applicant has submitted that, in its decision, the General Division made numerous errors of law, fact and errors of mixed law and fact as well as several breaches of natural justice.
 Applications for leave to appeal are the first stage of the appeal process. The threshold is lower than that which must be met on the hearing of the appeal on the merits. However, in order to be granted leave to appeal, the Applicant must present some arguable ground upon which the proposed appeal might succeed: Kerth v. Canada (Minister of Human Resources Development),  FCJ No. 1252 (FC).
 The Federal Court of Appeal has found that an arguable case at law is akin to whether, legally, an applicant has a reasonable chance of success: Canada (Minister of Human Resources Development) v. Hogervorst, 2007 FCA 41; Fancy v. Canada (Attorney General), 2010 FCA 63. Therefore, the Tribunal must first determine if the reasons for the Application relate to a ground of appeal that would have a reasonable chance of success.
Did the General Division commit Errors of Fact?
 The Applicant alleges that the General Division committed the following errors of fact. First, the General Division failed to comment on the Applicant’s credibility. In the submission of Counsel for the Applicant, the failure to comment on the Applicant's credibility renders it unclear as to whether the General Division considered any of the Applicants testimony regarding her functional limitation. This argument, in the Tribunal’s view requires something of a leap in logic. The Tribunal is not persuaded that the failure to make express comments on an applicant’s credibility inexorably leads to the conclusions proffered by the Applicant and her Counsel. In the Tribunal’s view the Applicant has not established an arguable case on this point.
 The Tribunal reaches the same conclusion with respect to the Applicant’s submission that the General Division erred when it stated that the various tests she underwent did not show the existence of significant pathology in her lumbar spine. She argues that this statement demonstrated that the General Division did not weigh all of the evidence. Moreover, the Applicant argues that the General Division did not provide reasons for failing to accept the medical evidence. The medical documents do not support the Applicant’s position; therefore, this is not a ground on which the appeal would likely succeed.
 Similarly, the Tribunal found that the General Division did not commit an error by concluding that there was no evidence to suggest that the Applicant was incapable of sedentary work. The General Division did have the July 2009 and September 2009 opinions of Drs. Hoffman and Rosenbluth before it, however, neither medical practitioner expressly ruled out sedentary work. Accordingly, the Tribunal is not satisfied that this is a ground that could succeed on appeal.
 The last error of fact the General Division is alleged to have made is with respect to its description of the Applicant’s medical treatment as being “conservative.” The Applicant submits that she was prescribed “powerful, addictive, dangerous painkillers.” In the Applicant’s submission these painkillers amount to more than conservative treatment. Further, the Applicant contends that the General Division failed to take into account that “someone on consuming these drugs would be unable to work reliably.”
 The General Division Member makes the statement at paragraph 46 of the decision. However, he does not elaborate on how he reached this conclusion. This, in the Tribunal’s view, leaves room for argument. The Tribunal is satisfied that the Applicant has raised an arguable case in this regard.
Errors of Mixed Fact and Law
 The Applicant raised a number of arguments under this head. Among her arguments is that the General Division neither considered nor addressed her functional limitations or abilities with respect to the activities of daily living or employability. The General Division did note that the main disabling conditions were back pain, depression and anxiety. However, in the context of a decision that focused on retained work capacity and in light of the evidence of the Applicant’s ability to provide care of a physically demanding nature for her daughter, the Tribunal finds that the General Division did not err in this regard.
 A further argument was made that the General Division failed to specify the evidence it preferred to the comments of Dr. Hoffman and failed to give a reason for preferring that evidence. While true, the Tribunal is not persuaded that in the overall context of the decision, this failure is necessarily fatal. Leave will not be granted on this basis.
 The Applicant also submitted that the General Division failed to discuss and amplify certain VillaniFootnote 2factors, namely, her educational background and to properly apply a “real world” approach to its analysis. The Tribunal relies on the decision of the Federal Court of Appeal in GiannarosFootnote 3for the proposition that such a failure is not necessarily fatal to the decision.
 According to the Federal Court of Appeal, a “real world” analysis would not be necessary where the decision maker is not persuaded that there is a serious medical condition. Thus, in the Tribunal’s view, Giannaros would apply to the instant case because the General Division made an anterior finding that the Applicant did not suffer from a severe medical condition. Therefore there is no error of law in this regard, on the part of the General Division.
 The Applicant also argued that the General Division misinterpreted the difficulties of caring for her severely disabled daughter. In her submission, the General Division should have addressed how her physical and mental issues would be compounded by the difficulties of caring for a profoundly disabled child. The Applicant makes the further submission that her caregiving is evidence that she is disabled, rather than evidence that she is not. The Tribunal is perplexed by this argument. It was the Applicant’s testimony, as recorded in the decision, that she stopped working as a casino dealer because of back pain, anxiety and depression. In relation to the Applicant’s care of her child and her medical conditions, paragraphs 41 and 42 of the decision references the comments of medical practitioners that heavy lifting was an aggravating factor. The Tribunal does not see how the caregiving is evidence that the Applicant is disabled. In any event the Tribunal is not persuaded that the General Division erred in its conclusion that the Applicant’s ability to care for her child was indicative of retained work capacity.
Errors of Law
 The Applicant submits that the General Division focused on her conditions and who was treating them as opposed to her functional limitations. The Tribunal finds that the allegations are not supported. In the Tribunal’s view the focus of the General Division was always on the issue of whether or not the Applicant could obtain regularly a substantially gainful occupation. The Tribunal finds no error on the part of the General Division.
 The Applicant also made the argument that the General Division failed to apply the new test for “substantially gainful.” This argument seeks to give retrospective application to a legislative provision that contains no such provision. The Applicant did have earnings in 2010, (resulting in a pro-rated MQP of June 30, 2010); however, the new RegulationsFootnote 4apply to CPP disability pension applications made after May 29, 2014. The Applicant’s application for CPP disability benefits predates the coming into force of the Regulations, clearly rendering the argument moot. Thus the General Division committed no error.
Breaches of Natural Justice
 The Applicant submits that the General Division breached natural justice by breaching the requirement for a fair hearing. The breach is alleged to have occurred in two ways. First, that the Applicant was denied the opportunity to be heard because “in its analysis of the severity of the Applicant’s medical issues little or no reference was made to the Applicant’s oral testimony and no reference was made to her oral evidence.” Counsel for the Applicant goes on to deduce that “it is reasonable to assume that no weight was given to the Applicant’s oral evidence”. The second breach of natural justice is alleged to have occurred as a result of the General Division failing to include an assessment of the Applicant’s credibility in its decision.
 The Tribunal considered both of these novel arguments, but rejected them. In the Tribunal’s view the first argument is not made out because not only did the General Division dedicate a significant portion of its decision to recounting the Applicant’s oral testimony, more than half of the General Division’s analysis is given over to a consideration of the Applicant’s oral testimony. Even if a denial of the right to be heard could be made out by the absence of a reference to an Applicant’s oral testimony, in the Tribunal’s view, this would not be the applicable case; The Applicant has not established an arguable case on this ground.
 With respect to the Applicant’s submission that the General Division was required to include a credibility assessment in its decision and that the failure to do so amounted to a breach of the requirement for a fair hearing, the Tribunal can find no statutory or other basis for this submission. Accordingly, this submission too, fails as a ground of the appeal.
 Counsel for the Applicant presented a number of arguments that he submitted supporting the granting of the Application. Of the arguments made, the Tribunal has found that he has raised an arguable case in relation to the General Division’s description of the Applicant’s medical treatment as being “conservative”. The Tribunal found that the failure to elaborate on or set out the reasoning by which the General Division came to this conclusion raised an arguable case that the General Division had committed an error of fact.
 At the Application stage an Applicant need only succeed in raising one ground of appeal. The Tribunal finds that she has done so. The Application for Leave to Appeal is granted.
- Date modified: