G. M. v. Minister of Employment and Social Development
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- Social Security Tribunal decision - Appeal Division
- Shu-Tai Cheng
- Hearing date:
- Hearing type:
- G. M. and Minister of Employment and Social Development (formerly known as the Minister of Human Resources and Skills Development)
- Application for leave to appeal is refused
- Decision date:
- October 31, 2016
- Reference number:
- G. M. v. Minister of Employment and Social Development, 2016 SSTADIS 425
Reasons and decision
 On May 6, 2016, the General Division (GD) of the Social Security Tribunal of Canada (Tribunal) determined that a disability pension under the Canada Pension Plan (CPP) was not payable to the Applicant.
 The Applicant filed a handwritten letter which was treated as an incomplete application for leave to appeal (Application) with the Appeal Division (AD) of the Tribunal on May 24, 2016.
 The Tribunal asked the Applicant to provide missing information, and the Applicant sent a fax attaching a filled-in “Application Requesting Leave to Appeal to the Appeal Division” Form on June 6, 2016.
 The Application was filed within the time limit for appeal to the AD.
 Whether the appeal has a reasonable chance of success.
 Pursuant to subsections 57(1) and (2) of the Department of Employment and Social Development Act (DESD Act), an application for leave to appeal must be made to the AD within 90 days after the day on which the CPP decision appealed from was communicated to the appellant. Further, “the Appeal Division may allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.”
 According to subsections 56(1) and 58(3) of the 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(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) 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 Applicant’s reasons for appeal can be summarized as follows:
- He would like to work, but he cannot work;
- The reasons he cannot work include:
- He suffers from many joint pains, anxiety, depression, and lack of focus;
- The medications he is taking cause him to be dizzy and drowsy;
- No one will employ him because he would only be able to work 2-3 hours a day;
- He is suing his former employer for wrongful dismissal, and no one will want to hire someone who is suing an employer; and
- He was told by “worker’s compensation” that he should not work.
 1The Applicant applied for a disability pension in October 2012. The Respondent denied the application initially and upon reconsideration, on the basis that while the Applicant identified limitations resulting from his medical condition and may not be able to do his usual work, the Respondent had concluded that he should still be able to do some type of work.
 The Applicant requested reconsideration of this decision, and the Respondent maintained its initial decision.
 The Applicant appealed that decision to the GD of the Tribunal.
 The GD decided to proceed by way of a teleconference hearing. The Applicant was present and testified at the hearing, and his wife was also present. The Respondent was not present, but had filed written submissions prior to the hearing.
 The issue before the GD was whether the Applicant had a severe and prolonged disability on or before December 31, 2013, which was his minimum qualifying period (MQP).
 The GD reviewed the Applicant’s evidence (testimonial and documentary) and the submissions of the parties. It rendered a written decision that was understandable, sufficiently detailed, and provided a logical basis for the decision. The GD weighed the evidence and gave reasons for its analysis of the evidence and the law. These are proper roles of the GD.
 The Application and documents submitted by the Applicant to the AD argue that he is disabled and cannot work. He points to his joint pains, anxiety, depression and difficulty focusing as the medical conditions, as well as his medications and other personal factors which he believes makes him unemployable.
 Before the GD, the Applicant advanced similar arguments to those in the Application. The Applicant’s evidence was included, in detail, in the GD decision on pages 3 to 10. The Applicant’s submissions before the GD were summarized on page 10 and discussed at pages 11 to 14; they included many of the points in support of the Application and are noted in paragraphs  and  above.
 The GD stated the correct legislative basis and legal tests. It found that the Applicant had capacity to work at a substantially gainful employment after his MQP.
 The GD decision noted, in particular:
 The Tribunal finds that there is evidence of ability to work and the Appellant is compelled to have followed his doctor’s advice in attempting to work on a part time basis for the therapeutic effect on negative cognitive set. In addition, the Tribunal finds that the Appellant was bound to pursue the University Day Program and that delaying his participation over five years to pursue litigation against his former employer, while a decision the Appellant is free to have made, is not a reasonable delay for a person seeking to qualify for CPP disability benefits. In order to meet the burden of proof to qualify for CPP disability benefits the Appellant is obligated to have done all that he reasonably can to regain his capacity for work.
 Where there is evidence of work capacity, a person must show that effort at obtaining and maintaining employment has been unsuccessful by reason of the person’s health condition (Inclima v. Canada (A.G.), 2003 FCA 117). In the Appellant’s case, he was assessed as not only having the potential capacity for part time work but as likely to derive a therapeutic benefit from working. The Appellant made some enquiries to find employment he thought he might like to try but he did not actively make a true effort to obtain and maintain employment. The Tribunal finds that stopping in at schools in his neighborhood to ask if they needed anyone falls short of meeting his obligation. The Appellant indicated that he would not have considered any position he felt lacked the same level of regard as his former position. Without having made some genuine and concerted effort to obtain and maintain some form of part time employment the Appellant cannot succeed as the Federal Court of Canada has determined he must show he tried to work but failed due to the limitations of his medical condition.
 The Appellant has failed to meet the burden of proof in showing he met the criteria of a severe disability as that term is defined by the CPP by December 31, 2013 and onward.
 The Appellant has not followed all recommended treatment programs suggested by his treating physicians. He has been advised he would benefit from the structure of a work schedule and has been advised to find a part time job within his limitations. The Appellant has also been advised that he would benefit from participation in the University of Alberta psychotherapy Day Program by two specialists. He was declined as a candidate for the program because he was involved in an ongoing lawsuit and this external stressor would preclude him as a viable candidate in the program.
 The Tribunal is sympathetic to the emotional shock the Appellant suffered when he was laid off from a company he had worked for over ten years and in an industry he had worked in over 40 years, however, delaying pursuit of recommended treatment to pursue a law suit is not acceptable in terms of meeting the criteria of a prolonged disability under the CPP. The Appellant has a positive obligation to mitigate his circumstances by following all recommended treatment programs unless he can show that his failure to do so is a reasonable choice in all of the circumstances. The Tribunal finds that the Appellant’s single mindedness in insisting on pursuing a lengthy law suit that is detrimental to his mental health and that has delayed his ability to pursue a treatment program is not a reasonable choice in all of the circumstances.
 As the Appellant has not yet pursued all recommended treatment programs it is not possible to assess whether his condition is prolonged. It cannot be said that the Appellant has reached maximum medical improvement as long as recommended treatment remains unexplored. It remains possible that if the Appellant were to pursue the recommended treatment program he may well recover from his medical condition. As such, he cannot be said to suffer from a prolonged disability.
 The Appellant has failed to meet the burden of proof in showing he met the criteria of prolonged disability, as that term is defined by the CPP, by December 31, 2013, and onward.
 For the most part, the Application repeats the Applicant’s evidence and submissions before the GD. In particular, the Applicant reiterates that he is unable to work and is not employable for various reasons.
 Once leave to appeal has been granted, the role of the AD is to determine if a reviewable error set out in subsection 58(1) of the DESD Act has been made by the GD and, if so, to provide a remedy for that error. In the absence of such a reviewable error, the law does not permit the AD to intervene. It is not the role of the AD to re-hear the case de novo. It is in this context that the AD must determine, at the leave to appeal stage, whether the appeal has a reasonable chance of success.
 I have read and carefully considered the GD’s decision and the record. There is no suggestion that the GD failed to observe a principle of natural justice or that it otherwise acted beyond or refused to exercise its jurisdiction in coming to its decision. The Applicant has not identified any errors in law or any erroneous findings of fact which the GD may have made in a perverse or capricious manner or without regard for the material before it, in coming to its decision.
 In order to have a reasonable chance of success, the Applicant must explain how at least one reviewable error has been made by the GD. The Application is deficient in this regard, and I am satisfied that the appeal has no reasonable chance of success.
 The Application is refused.
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