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

Institution:
Social Security Tribunal decision - Appeal Division
Member:
Kate Sellar
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 30, 2017
Reference number:
AD-17-386
Citation:
J. A. v. Minister of Employment and Social Development, 2017 SSTADIS 698

Reasons and decision

Introduction

[1] On March 21, 2017, the General Division of the Social Security Tribunal of Canada (Tribunal) determined that a disability pension under the Canada Pension Plan was not payable. The Applicant filed an application for leave to appeal (Application) with the Tribunal’s Appeal Division on May 16, 2017.

Issue

[2] The Appeal Division must decide whether the appeal has a reasonable chance of success.

The law

Leave to appeal

[3] According to ss. 56(1) and 58(3) of the Department of Employment and Social Development Act (DESDA), an applicant may bring an appeal to the Appeal Division only if the Appeal Division grants leave to appeal. The Appeal Division must either grant or refuse leave to appeal.

[4] Subsection 58(2) of the DESDA provides that the Appeal Division refuses leave to appeal if it is satisfied that the appeal has no reasonable chance of success. An arguable case at law is a case with a reasonable chance of success [see Fancy v. Canada (Attorney General), 2010 FCA 63].

Grounds of appeal

[5] According to s. 58(1) of the DESDA, the following are the only grounds of appeal:

  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 that it made in a perverse or capricious manner or without regard for the material before it.

Submissions

[6] The Applicant submits that the General Division ignored the evidence about his mental health condition in deciding that he had not had a severe disability on or before his minimum qualifying period (MQP), which ended on December 31, 2015. The Application states:

I think that my mental health illness was not taken into consideration from the judge. I was seeing a mental health professional (psychiatrist) for a period of time. My mental health issues did not resolve and I continue to struggle with them. I think the judge did not explore this further with me or ask questions.

Analysis

[7] In general, ignoring evidence about a disabling condition could constitute an error under s. 58(1)(c) of the DESDA, but it could also constitute a failure to consider all the possible impairments, not just the biggest impairments or the main impairment as required [see Bungay v. Canada (Attorney General), 2011 FCA 47], which could fall under s. 58(1)(b) of the DESDA.

[8] In the decision, the General Division outlined the evidence about the Applicant’s mental health disability in some detail. At para. 13, the General Division notes that the Applicant was referred to a psychiatrist for counselling after the robbery at his work and that, in the referral, the provisional diagnosis was acute distress disorder and major depressive disorder.

[9] The decision noted that, in his application for the disability pension, the Applicant indicated he was taking Zoloft, that he had seen a psychiatrist and that he was seeing a social worker on a regular basis (para. 17). The Applicant clarified at the hearing that he saw the psychiatrist for two months, and then began seeing a psychologist (paras. 18 and 19). The psychologist diagnosed post-traumatic stress disorder (PTSD) and major depressive disorder (single episode). The General Division noted that the Applicant had tried cognitive behavioural therapy and had taken prescribed medication (para. 21).

[10] The General Division decision cites a February 6, 2016, assessment (post-MQP) in which the Applicant was diagnosed with major depressive episode and acute stress disorder. The General Division stated (para. 27) that the Applicant

stayed in the basement during the day and only left his home during the daytime but still felt people were looking at him and talking about his behaviour during the robbery. At the hearing, he said that he still had similar problems, although he had less difficulty in leaving the house. He said he was still worried about people walking behind him and/or looking at him.

[11] At para. 30, the General Division decision says the Applicant testified that

[h]e still had stress and anxiety but was not being treated for it anymore. He also was not taking medication for stress, anxiety or appetite  anymore, because he felt it was bad to take medication for a long period of time. He said that his doctor supported his decision but insisted that he continue to take Tylenol 3 for pain. When asked what he was doing to deal with his ongoing issues, the Appellant said that he tried to be around family and friends in order to stop thinking about those issues.

[12] The Applicant submits that he qualified for the disability pension because he suffered from mental health conditions, such as PTSD and major depressive disorder since 2015 and that he continues to have difficulty coping with day-to-day life (para. 36).

[13] Following that review of the evidence, in its analysis, the General Division expressly acknowledged the need to look at impairments in their totality, and then it relied on a series of factors in determining that the Applicant’s mental health illness was no longer contributing in a significant way to his reported work limitation (paras. 42–44). The General Division relied on, among other things, the fact that the Applicant had no mental health treatment after the February 6, 2016, assessment and that he testified about work he believed he could do that was within his physical restrictions.

[14] The General Division’s treatment of the medical evidence relating to the Applicant’s mental health does raise an arguable case under s. 58(1)(b) or (c) of the DESDA. It seems the General Division relied on post-MQP evidence to determine the question of severity on or before the MQP, without adequately explaining how the post-MQP evidence supported its conclusion.

[15] The Applicant’s evidence from the Anxiety Treatment and Research Clinic of July 2015 (GD 9-2) was clear about the impact the Applicant’s mental health was having on his day-to-day living at that time. That report is referenced in the General Division’s decision (para. 19). Continuing depression and anxiety were evident in the rapid consult assessment completed on February 6, 2016 (GD 9-12), and that report is referenced in the General Division’s decision (para. 25). However, the General Division weighed that evidence against other post-MQP evidence, including the testimony the Applicant had given about his mental health related conditions at the time of the hearing, and it concluded that the “worrisome PTSD-related symptoms he initially reported, such as staying in his basement all day, do not appear to be as significant as they once were and he is no longer receiving any mental health treatment.” (para. 46)

[16] It is arguable that the General Division made an error under s. 58(1)(b) or (c) of the DESDA. The General Division relied on post-MQP evidence (in the form of the Applicant’s testimony about treatment and symptoms at the time of the hearing) to determine that the disability was not severe, without explaining how this evidence supports its finding as to the severity on or before the end of the MQP. This is not simply a question of the sufficiency of the reasons more generally, which is not a “stand-alone” basis for appeal [see Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62]. Rather, it is a question of whether the General Division provided reasons that allow for an understanding of the analysis it applied to the pre- and post-MQP evidence respectively.

[17] Leave to appeal is granted on the question as to whether the General Division erred in relying on post-MQP evidence to make a determination about the severity of the disability on or before the MQP.

Conclusion

[18] The Application is granted. The decision granting leave to appeal does not presume the result of the appeal on the merits of the case.

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