Citation: M. B. v. Minister of Employment and Social Development, 2018 SST 499 Tribunal File Number: AD-18-98 BETWEEN: M. B. Applicant and Minister of Employment and Social Development Respondent SOCIAL SECURITY TRIBUNAL DECISION Appeal Division Leave to Appeal Decision by: Jude Samson Date of Decision: May 7, 2018
- 2 - DECISION AND REASONS DECISION [1] The application for leave to appeal is refused. OVERVIEW [2] In 2014, the Applicant, M. B., applied for a disability pension under the Canada Pension Plan (CPP), saying that he was unable to work due to the cumulative effects of prior injuries, coronary artery disease (including two myocardial infarctions), chronic pain, fatigue, and a lack of concentration. Later, he was diagnosed with fibromyalgia. [3] The Respondent (Minister) refused the Applicant s application initially and on reconsideration. The Applicant then appealed the Minister s decision to the Tribunal s General Division, but it dismissed the appeal. The Applicant is now requesting leave to appeal the General Division s decision, arguing that it breached the principles of natural justice and committed numerous errors of law and fact. [4] For the reasons below, I have concluded that the appeal has no reasonable chance of success. As a result, leave to appeal is refused. ISSUES [5] I must determine whether the Applicant has raised at least one arguable ground on which the appeal might succeed. [6] Specifically, the Applicant alleges that the General Division a) should have conducted the hearing by videoconference or in person; b) misapplied the legal test for severity, as set out in the CPP; c) gave too much or too little weight to certain parts of the evidence; and d) made inappropriate findings or failed to access information that is readily available on the Internet.
- 3 - ANALYSIS Legal Framework [7] The Tribunal has two divisions that operate quite differently. At the Appeal Division, the focus is on whether the General Division might have committed one or more of the three reviewable errors (or grounds of appeal) that are set out in s. 58(1) of the Department of Employment and Social Development Act (DESD Act). Generally speaking, these reviewable errors concern whether the General Division a) breached a principle of natural justice or made an error relating to its jurisdiction; b) rendered a decision that contains an error of law; or c) 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. [8] There are also procedural differences between the Tribunal s two divisions. The Appeal Division s process is in two steps: the leave to appeal stage is first, followed by the merits stage. This appeal is at the leave to appeal stage, meaning that permission must be granted before it can proceed any further. This is a preliminary hurdle that is intended to filter out cases that have no reasonable chance of success. 1 The legal test that applicants need to meet at this stage is low: Is there any arguable ground upon which the appeal might succeed? 2 [9] While the Applicant has the responsibility of showing that this legal test has been met, I am not limited to the precise grounds of appeal that he has raised in his written materials. 3 Rather, if important evidence has arguably been overlooked or misconstrued, leave to appeal should normally be granted regardless of any technical problems that might be found in those materials. 4 1 DESD Act at s. 58(2). 2 Osaj v. Canada (Attorney General), 2016 FC 115, at para. 12; Ingram v. Canada (Attorney General), 2017 FC 259, at para. 16. 3 Tracey v. Canada (Attorney General), 2015 FC 1300, at para. 31. 4 Griffin v. Canada (Attorney General), 2016 FC 874, at para. 20; Karadeolian v. Canada (Attorney General), 2016 FC 615, at para. 10.
- 4 - Issue 1: Should the General Division have conducted the hearing by videoconference or in person? [10] I interpret the Applicant s argument under this issue as potentially engaging the principles of natural justice. Generally speaking, the principles of natural justice include the rights of parties to a fair and reasonable opportunity to present their case. In my view, however, this argument has no reasonable chance of success. [11] In its decision, the General Division raised concerns about the Applicant s credibility. It did not reject his oral evidence outright, but it did find that the evidence revealed a recurring theme of conflict between the [Applicant] and his care providers. 5 As a result, the General Division approached the Applicant s evidence with a degree of caution and said that it preferred to assign more weight to objective medical documentation. 6 [12] Since credibility was such an important factor, the Applicant argues that the General Division should have chosen an in-person hearing, because that is the best forum in which to conduct a credibility assessment. [13] First, the Applicant s argument presupposes that a witness s demeanor is the best guide to his or her credibility. The courts rejected that view some time ago. 7 Rather, a person s demeanor is just one of many factors that can be used as part of a credibility assessment. Indeed, one court referred to the use of demeanor as a guide to assessing credibility as a troublesome guide at best. 8 [14] Second, the form of hearing is a highly discretionary decision that General Division members are entitled to make. 9 I agree with my colleagues who have held that the choice between teleconference, videoconference, and in-person hearings is not one that should be interfered with lightly. 10 5 General Division decision at para. 76. 6 Ibid. at para. 77. 7 Faryna v. Chorny, 1951 CanLII 252 (BC CA). 8 K. (I. F.) v. College of Physicians and Surgeons of British Columbia, 1998 CanLII 4713, at para. 39 (BC CA). 9 Social Security Tribunal Regulations at s. 21. 10 S. P. v. Minister of Employment and Social Development, 2016 SSTADIS 261, aff d Parchment v. Canada (Attorney General), 2017 FC 354; D. B. v. Minister of Employment and Social Development, 2015 SSTAD 806.
- 5 - [15] And third, for natural justice concerns to be considered, they must be raised at the earliest opportunity. 11 In this case, the Applicant completed a hearing information form, on which he raised no objections to a teleconference hearing. 12 In addition, the notice of hearing provided him with two months notice that his hearing would be held by teleconference, but he does not appear to have objected to this form of hearing at any time prior to or during the hearing. 13 Finally, the Applicant does not allege that there were technical or any other difficulties during the hearing that interfered with his ability to present his case. [16] Therefore, I have concluded that this argument has no reasonable chance of success. Issue 2: Did the General Division commit an error of fact or law in the way that it assessed the Applicant s claim against certain requirements set out in the CPP? [17] I am unable to accept that any of the potential errors falling within this issue amount to an arguable ground on which the appeal might succeed. [18] In order to be disabled within the meaning of s. 42(2) of the CPP, a person must have a severe and prolonged disability on or before a certain date (in this case, January 31, 2015). As part of this assessment, certain determinations must be made in the prescribed manner, which means that the claimant must provide certain medical information. Relevant provisions from the CPP and the Canada Pension Plan Regulations (CPP Regulations) are reproduced below. In addition, the Federal Court and Federal Court of Appeal have provided important guidance as to how these statutory provisions should be interpreted and applied. [19] The Applicant seems to argue that the General Division misapplied the severity requirement that is part of the test under s. 42(2) of the CPP. In particular, he asserts that the General Division committed the following errors: a) It failed to consider all of the Applicant s possible impairments; b) It ignored the variability of the Applicant s symptoms and his inability to commit to a schedule or to attend at a place of employment with any predictability; 11 Sharma v. Canada (Attorney General), 2018 FCA 48, at para. 11. 12 GD6-2. 13 GD0.
- 6 - c) It misunderstood the nature of chronic pain; d) It failed to apply the liberal approach to disability assessments, as required by the Federal Court of Appeal in Villani v. Canada (Attorney General); 14 and e) It overlooked the Policy Directive of Income Security Programs. [20] For the reasons described below, I am unable to conclude that these arguments have a reasonable chance of success. At the outset, however, it is worth highlighting that the Applicant did not expand on these arguments in much detail. As a result, it is unclear, for example, which of the Applicant s possible impairments the General Division is alleged to have ignored. [21] In my view, the General Division cited the relevant legal principles in paragraph 69 of its decision and spent considerable time summarizing the oral and documentary evidence advanced by the Applicant. Indeed, the General Division s decision refers specifically to the Applicant s numerous conditions and impairments, including chronic pain, musculoskeletal and abdominal pain, fibromyalgia, headaches, coronary artery disease, myocardial infarctions, ischemic heart disease, hypertension, past injuries and accidents, fatigue, depression, muscle weakness, dysuria, irritable bowel syndrome, chlamydia, and diarrhea, along with certain cognitive difficulties, such as limited concentration and focus. [22] In addition, there are other places in the General Division s decision where it made clear that it was considering the cumulative effect of the Applicant s impairments. 15 Nevertheless, it should be recognized that there are aspects of the Applicant s condition that the General Division had difficulty assessing, because the Applicant failed to provide much, if any, medical evidence on these topics. Mental health is one such area in which there was a lack of corroborating medical evidence. [23] In light of the General Division s lengthy and detailed reasons, the Applicant has not raised an arguable case that the General Division overlooked the totality of his condition. 14 Villani v. Canada (Attorney General), 2001 FCA 248. 15 For example, at paras. 72 and 79.
- 7 - [24] With respect to the variability of the Applicant s symptoms and his dependability as a worker, the Applicant s evidence in these regards was acknowledged in paragraph 55 of the General Division s decision. However, this evidence was also subject to an overall assessment regarding the reliability of the Applicant s testimony, which the General Division concluded was less persuasive unless corroborated by other evidence. The General Division was entitled to come to this conclusion and it provided reasons for doing so. I do not see this submission as rising to the level of an arguable ground upon which the appeal might succeed. [25] The Applicant also asserts that the General Division failed to recognize that some people experience disabling pain despite a lack of objective medical findings. In my view, it is clear from the General Division s decision that it was alive to this possibility. The General Division did not insist on medical images or other diagnostic tests to support a finding of chronic pain. Rather, the General Division thoroughly assessed all the evidence and the Applicant s credibility to determine whether a claim of chronic pain could be established on a balance of probabilities. In the circumstances, I am unable to find that this argument amounts to an arguable ground upon which the appeal might succeed. [26] With respect to the Federal Court of Appeal s decision in Villani, that case is normally relied on to say that the Applicant s disability need not be total. Rather, as part of its disability assessment, the General Division must consider the Applicant s employability, while bearing in mind a number of personal characteristics, such as the Applicant s age, education level, language proficiency, and past work and life experience. 16 Based on my review of the General Division s decision, I am satisfied that it both understood and properly applied these legal principles. The Applicant did not point to, nor did I see, anything in the General Division s decision to suggest that it would have been unsatisfied with anything short of a total disability. [27] Villani also states that decision-makers should be cautious about concluding that a person s ability to do certain household chores is indicative of a capacity to work. 17 In this case, while the General Division did refer to the Applicant s ability to do certain household chores, it is but one of several factors that the General Division reasonably took into account. Again, 16 Villani, supra, note 14, at paras. 38 and 42 to 44. 17 Ibid. at para. 47.
- 8 - therefore, I do not see the Applicant s arguments around Villani as having any reasonable chance of success. [28] Finally, the Applicant alleges that the General Division should have considered the Policy Directive of Income Security Programs when assessing whether an occupation meets the threshold of substantially gainful. I am not aware of this Policy Directive and the Applicant has not provided a copy of it. I can only assume that, like other policy directives, it is nonbinding. 18 In addition, I see no indication that it was raised before the General Division. The General Division cannot be faulted for ignoring something that was never brought to its attention. [29] Admittedly, by introducing s. 68.1 of the CPP Regulations in May 2014, Parliament did try to better define the meaning of substantially gainful. However, it is difficult to see how that provision would apply in this case, since the Applicant did not have any earnings in 2014 or afterwards. [30] In sum, therefore, none of these arguments amount to an arguable ground on which the appeal might succeed. Issue 3: Did the General Division give too much or too little weight to certain parts of the evidence? [31] By asking me to reweigh and reassess the evidence, the Applicant has not raised a ground of appeal that is recognized under s. 58(1) of the DESD Act. As a result, I find that arguments falling within this issue have no reasonable chance of success. [32] The Applicant argues that the General Division gave too much weight to some pieces of evidence and too little weight to others. The weighing and assessing of evidence lies at the heart of the General Division s jurisdiction. 19 Indeed, the Federal Court has held that leave to appeal should normally be refused when claimants seek only to reargue their position or have the 18 Gordon v. Canada (Attorney General), 2016 FC 643, at para. 41. 19 Hussein v. Canada (Attorney General), 2016 FC 1417.
- 9 - evidence reweighed. 20 Notably, the Applicant has not pointed to any important evidence that was overlooked or to important contradictions in the evidence that were ignored. Issue 4: Did the General Division make inappropriate findings or fail to access information that is readily available on the Internet? [33] I interpret the Applicant s arguments under this issue as alleging that the General Division may have made an error of fact or law. Again, however, I have concluded that the Applicant has not raised an arguable ground on which the appeal might succeed. [34] The Applicant claims that the General Division engaged in speculation, mischaracterized the evidence, and failed to access readily available information in the following ways: a) It failed to do an online search for the specialty of various doctors at the Lockwood clinic; b) It suggested that the Applicant was stockpiling narcotic medications; c) It made findings regarding the Applicant s financial ability to undergo particular treatments at his own expense; d) It mischaracterized the Applicant s farming activities and relied on its own opinion regarding the physical demands associated with farming activities; and e) It misinterpreted various clinical notes. [35] To begin, the Applicant was obligated to prove, on a balance of probabilities, that he met the requirements set out in the CPP. 21 While the Applicant alleges that the General Division should have gone online to find information in support of his claim, he did not specify the source of that obligation, nor am I aware of any such obligation. As a result, I do not see this argument as having any reasonable chance of success. 20 Canada (Attorney General) v. Tsagbey, 2017 FC 356, at para. 83; Bellefeuille v. Canada (Attorney General), 2014 FC 963, at para. 31. 21 Dossa v. Canada (Pension Appeals Board), 2005 FCA 387, at para. 6.
- 10 - [36] I now turn to the General Division s comments with respect to the Applicant s use of medication, his financial ability to undergo particular treatments, and the General Division s characterization of his farming activities. [37] The Applicant had little objective medical evidence to corroborate his symptoms. The General Division nevertheless went on to consider the Applicant s claims, but the strength of his oral evidence, meaning his credibility, became very important. [38] As part of its credibility assessment, the General Division did not restrict itself to just one or two factors. Rather, it took multiple factors into account, including a) the Applicant s pain relief medication. The General Division noted concerns, however, as expressed by various health professionals, that the Applicant might not have been taking that medication in the manner in which it was prescribed. These concerns stemmed from blood test results that failed to reveal traces of the medications that he was prescribed, and the Applicant s insistence on medications that were not recommended for his conditions, such as fibromyalgia; b) contradictions between the Applicant s assertions regarding his financial well-being, his inability to afford certain treatments, and the uncontested fact that he had bought an expensive farm tractor; and c) the Applicant s asserted limitations (including the inability to drive his car, motorcycle, and snowmobile for long periods) and his decision to buy a tractor and take up farming. [39] These factors, and numerous others, contributed to the General Division s overall conclusion that the Applicant was unable to establish, on a balance of probabilities, that his disability was severe on or before January 31, 2015. [40] In the circumstances, I do not see the Applicant s arguments as having a reasonable chance of success: these are all areas that the General Division was entitled to explore as part of its credibility assessment. In addition, while the Applicant might not like the inferences that were drawn by the General Division, the underlying facts on which these inferences were drawn are largely uncontroversial.
- 11 - [41] Similarly, the Applicant did not raise an arguable ground upon which the appeal might succeed when he alleged that the General Division committed an error by observing that farming is a labour-intensive activity. [42] While it is undoubtedly true that some people farm in more and less labour-intensive ways, the critical statement at paragraph 90 of the General Division s decision remains accurate: it is difficult to reconcile [the Applicant s decision to take up farming] with his claimed symptoms and limitations. [43] In paragraph 8 of his application requesting leave to appeal, the Applicant further alleges that the General Division misinterpreted some of the clinical notes written by his health care providers and cherry-picked from others. 22 [44] The General Division need not refer to every piece of evidence that it has in front of it. Rather, it is presumed to have reviewed all of the evidence. 23 However, the General Division can commit an error if it fails to assess evidence that is sufficiently relevant or ignores important contradictions in the evidence. 24 [45] In my view, the Applicant has not raised an arguable case that one of those errors might have occurred here. Rather, the General Division s decision was lengthy and thorough. It assessed the most relevant pieces of evidence and explained why it was giving more weight to some pieces of evidence than others. It also identified important contradictions in the evidence and dealt with those contradictions. [46] Unlike what the Applicant alleges, I do not see the General Division s decision as suggesting that there was nothing wrong with the [Applicant s] level of functioning. 25 The Applicant is clearly limited in certain ways. However, the General Division was entitled to highlight certain aspects of the evidence to explain its conclusion that the Applicant s struggles did not rise, on or before January 31, 2015, to the level of a severe disability. 22 AD1-12 to 14. 23 Simpson v. Canada (Attorney General), 2012 FCA 82, at para. 10. 24 Lee Villeneuve v. Canada (Attorney General), 2013 FC 498, at para. 51; Canada (Minister of Human Resources Development) v. Quesnelle, 2003 FCA 92; Canada (Attorney General) v. Ryall, 2008 FCA 164. 25 AD1-12.
- 12 - [47] That said, I do agree with the Applicant that the General Division might have overstated the meaning of Nurse Harvey s clinical note dated April 22, 2014, where she recorded this following the Applicant s request for help in completing a medical form needed in support of his application for a CPP disability pension: Will [discuss] with Dr. Toupin and [nurse practitioner] regarding filling out these forms ([patient] is capable of working). 26 [48] On the one hand, the General Division found that this note reflects Ms. Harvey s opinion that the Applicant is capable of working. On the other hand, the Applicant submits that it is unlikely that Ms. Harvey would have arrived at such an opinion without first discussing the issue with the doctor and nurse practitioner. According to him, the parenthetical comment is more likely a simple statement of the question to be addressed in the medical form, rather than Ms. Harvey s opinion. [49] Even if the General Division misinterpreted Ms. Harvey s note, not all errors of fact warrant the Appeal Division s intervention. Rather, the Appeal Division intervenes only when the General Division bases 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. 27 In my view, the Applicant has no reasonable chance of successfully arguing that this potential error rises to this level. CONCLUSION [50] Although I have great sympathy for the Applicant, I have concluded that his appeal has no reasonable chance of success. [51] Nevertheless, I am mindful of Federal Court decisions in which the Appeal Division has been instructed to go beyond the four corners of the written materials and consider whether the General Division might have misconstrued or failed to properly account for any of the evidence. 28 [52] After reviewing the underlying record and examining the decision under appeal, I am satisfied that the General Division neither overlooked nor misconstrued any relevant evidence. In 26 GD3-15. 27 DESD Act at s. 58(1)(c). 28 Griffin, supra, note 4; Karadeolian, supra, note 4.
- 13 - my view, the General Division accurately summarized the key aspects of the evidence and explained why the Applicant did not meet the requirements for obtaining a CPP disability pension. [53] As a result, the application requesting leave to appeal is refused. Jude Samson Member, Appeal Division REPRESENTATIVE: Lisa D. Belcourt, for the Applicant
- 14 - APPENDIX Canada Pension Plan When person deemed disabled 42(2) For the purposes of this Act, (a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph, (i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and (ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; and (b) a person is deemed to have become or to have ceased to be disabled at the time that is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person including a contributor referred to in subparagraph 44(1)(b)(ii) be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made. Canada Pension Plan Regulations Determination of Disability 68 (1) Where an applicant claims that he or some other person is disabled within the meaning of the Act, he shall supply the Minister with the following information in respect of the person whose disability is to be determined: (a) a report of any physical or mental disability including (i) the nature, extent and prognosis of the disability, (ii) the findings upon which the diagnosis and prognosis were made, (iii) any limitation resulting from the disability, and (iv) any other pertinent information, including recommendations for further diagnostic work or treatment, that may be relevant;