J. A. v. Minister of Employment and Social Development

Institution:
Social Security Tribunal decision - Appeal Division
Member:
Jennifer Cleversey-Moffitt
Hearing date:
N/A
Hearing type:
N/A
Between:
J. A. and Minister of Employment and Social Development
Decision:
Application for leave to appeal is granted
Decision date:
November 27, 2017
Reference number:
AD-16-1110
Citation:
J. A. v. Minister of Employment and Social Development, 2017 SSTADIS 682

Other decision(s) related to this appeal:

Reasons and decision

Introduction

[1] On June 2, 2016, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that a disability pension under the Canada Pension Plan (CPP) was not payable. The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division, which received it on September 8, 2016.

[2] There was no issue regarding the minimum qualifying period (MQP) because the parties agree and the General Division found that the MQP date December 31, 2011, and continuously thereafter or at a possible prorate date of April 2012.

Issue

[3] The Member must decide whether the appeal has a reasonable chance of success.

The law

[4] According to subsections 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), “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.”

[5] Subsection 58(2) of the DESDA provides that “[l]eave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success.”

[6] According to subsection 58(1) of the DESDA, the only grounds of appeal are the following:

  1. a) The General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
  2. b) The General Division erred in law in making its decision, whether or not the error appears on the face of the record; or
  3. c) 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 before it.

[7] The process of assessing whether to grant leave to appeal is a preliminary one. The review requires an analysis of the information to determine whether there is an argument that would have a reasonable chance of success on appeal. This is a lower threshold to meet than the one that must be met on the hearing of the appeal on the merits. The Applicant does not have to prove the case at the leave to appeal stage: Kerth v. Canada (Minister of Human Resources Development), 1999 CanLII 8630 (FC). The Federal Court of Appeal, in Fancy v. Canada (Attorney General), 2010 FCA 63, determined that an arguable case at law is akin to determining whether, legally, an appeal has a reasonable chance of success.

Submissions

[8] The Applicant submits that the General Division based its decision on an erroneous finding of fact when it determined that Dr. Moriarty’s June 2014 report did not provide insight into the Applicant’s condition as of December 2011 (the MQP). The submissions argue that the General Division decision failed to fully consider the report and the fact that this psychologist had been treating the Applicant since September 2010.

Analysis

Does the Applicant have a reasonable chance of success on appeal on the basis that the General Division based its decision on an erroneous finding of fact by not properly assessing Dr. Moriarty’s June 2014 report?

[9] The submissions argue that the June 2014 report was not assessed properly. In support of this argument, the submissions note that Dr. Moriarty was the treating clinical psychologist beginning in September 2010—a time well before the MQP. Additionally, the submissions reference where the June 2014 report outlines symptoms and where Dr. Moriarty comments on the Applicant’s prognosis going forward.(GD2-64 and GD2-65):

Due to the severity of his illness however, despite his best efforts, his day-to-day functioning is severely impaired which has resulted in his being limited in the tasks he can manage in his daily life. Mr. J. A. has not been able to successfully pursue and complete educational goals or maintain employment because of his illness,  and  it  does  not  appear  Mr. J. A.’s circumstances will change in the foreseeable future.

[10] The General Division did comment on the June 2014 report and, at paragraph 40 of the decision, the member states:

Dr. Moriarty has been treating him since before the MQP. Regrettably, her June 2014 report which attempts to retrospectively account for a disability based on his inability regularly to seek employment does not provide an insight into his actual condition as of December 2011.

[11] The submissions argue that the General Division’s mention of the June 2014 neglects to reference the fact that treatment began in September of 2010 and that it also fails to mention the psychologist’s commentary on his prognosis.

[12] There is the potential that this report was not considered appropriately, as the General Division decision noted the report’s inability to speak to the Applicant’s condition as of December 2011 with no mention of treatment prior to that date despite evidence that Dr. Moriarty had been treating the Applicant as early as September 2010. The psychologist appears to have information on the Applicant’s health condition prior to the MQP and also comments on his health going forward. This appears to be absent from the General Division analysis. The submissions raise an arguable case. As such, I am satisfied that the appeal has a reasonable chance of success on this ground.

[13] The Federal Court of Appeal in Mette v. Canada (Attorney General), 2016 FCA 276, indicated that it is unnecessary for the Appeal Division to address all the grounds of appeal that an applicant has raised. At paragraph 15 of that decision, the Federal Court of Appeal explained: “The provision [section 58(2) of the DESDA] does not require that individual grounds of appeal be dismissed […] individual grounds may be so inter-related that it is impracticable to parse the grounds so that an arguable ground of appeal may suffice to justify granting leave.”

[14] This application is one of the situations described in Mette. The alleged erroneous finding of fact and the analysis of whether the Applicant’s medical condition was severe and prolonged may be interrelated; therefore, it is unnecessary at this stage to deal with the other arguments that the Applicant has raised.

Conclusion

[15] The Application is allowed.

[16] This decision granting leave to appeal does not, in any way, prejudge the result of the appeal on the merits of the case.

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