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

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Institution:
Social Security Tribunal decision - Appeal Division
Member:
Valerie Hazlett Parker
Hearing date:
N/A
Hearing type:
N/A
Between:
Minister of Employment and Social Development and A. B.
Decision:
Appeal allowed
Decision date:
December 4, 2017
Reference number:
AD-16-1401
Citation:
Minister of Employment and Social Development v. A. B., 2017 SSTADIS 702

Other decision(s) related to this appeal:

Reasons and decision

Decision

[1] The appeal is allowed and the matter returned to the General Division for reconsideration.

Overview

[2] The Respondent applied for a Canada Pension Plan disability pension. He claimed that he was disabled by a fractured vertebra, osteoporosis, irritable bowel syndrome and dyspepsia. He had worked for a number of years as an instrument fitter/pipefitter until he injured his back in 2012. He claimed that he could work in this position because it was a noisy environment and he could take breaks so his irritable bowel symptoms were not noticed. Once he could no longer do this job because of the back injury, his medical conditions prevented him from working in other work environments.

[3] The Appellant denied his application initially and on reconsideration. The Respondent appealed the reconsideration decision to the Social Security Tribunal. On September 24, 2016, the Tribunal’s General Division allowed the appeal and found that a disability pension was payable.

[4] The Appellant requested leave to appeal the General Division decision, and leave to appeal was granted on September 5, 2017.

[5] In a letter filed with the Tribunal on September 27, 2017, the Respondent stated that he would not be filing any submissions in this matter, stated that he would not be participating in any hearing and requested that a decision be made quickly. The Appellant filed no submissions on the appeal.

[6] This appeal was decided on the basis of the written record for the following reasons:

  1. The request of the Appellant; and
  2. The requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.

Analysis

[7] The Federal Court of Appeal decision Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93, decided that administrative tribunals must look first to their home statutes for guidance in determining their role and what standard of review is to be applied upon a review of a decision. The Department of Employment and Social Development Act (DESD Act) is the home statute for this Tribunal.

[8] The only grounds of appeal available under the DESD Act 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 that it made in a perverse or capricious manner or without regard for the material before it.

[9] Paragraphs 58(1)(a) and (b) of the DESD Act do not qualify errors of law or breaches of natural justice, which suggests that the Appeal Division should afford no deference to the General Division’s interpretations on such issues. The word “unreasonable” is not found in paragraph 58(1)(c), which deals with erroneous findings of fact. Instead, the test contains the qualifiers “perverse or capricious” and “without regard for the material before it.” As suggested by Huruglica, those words must be given their own interpretation. The language suggests that the Appeal Division should intervene when the General Division bases its decision on an error that is clearly egregious or at odds with the record.

[10] The Appellant argues that the General Division in this case erred in law and based its decision on erroneous findings of fact made in a perverse or capricious manner or without regard to the material that was before it.

[11] Regarding errors of law, the Appellant submits that the General Division did not apply the legal principle set out in the Federal Court of Appeal decision, Inclima v. Canada (Attorney General), 2003 FCA 117. The legal principle from this decision is that if a disability pension claimant has some residual work capacity, they must demonstrate that they could not obtain or maintain employment because of their disability in order to receive the Canada Pension Plan disability pension. The General Division decision in this matter did not refer specifically to this decision. Simply not referring to a decision is not an error in law. However, I am satisfied that the General Division did not consider the legal principle from this decision.

[12] The General Division decision summarized the written and oral evidence that was presented. This included the Respondent’s lengthy work history as an instrument fitter/pipefitter. The decision found that the Respondent was able to do this work despite suffering from irritable bowel syndrome and its embarrassing and inconvenient symptoms. There was also evidence that it would be embarrassing for the Respondent to work with these symptoms in a different environment. The medical evidence from Dr. Arnold was that the Respondent should not perform heavy manual work, not that he could not work at all.

[13] Therefore, it was incumbent on the General Division to consider whether the Respondent had some residual work capacity, and was able to obtain or maintain any work within his limitations. It accepted the Respondent’s testimony that he could not do any other work without investigating whether he had any attempts to do so (paragraph 26). I am satisfied that this was an error in law.

[14] Pursuant to the terms of the DESD Act, the Appeal Division is not to show any deference to the General Division when it makes an error of law. The appeal is granted on this basis.

[15] Since I have found that the appeal must be granted because of this error, I need not consider whether the General Division also erred by not requiring objective medical evidence of a severe and prolonged condition or whether it made any erroneous findings of fact.

[16] Section 59 of the DESD Act provides for the remedies that can be granted on an appeal. In this case, it is appropriate that the matter be returned to the General Division for reconsideration as evidence will have to be weighed. It is for the General Division to hear and weigh evidence.

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