Docket: A-201-17
Citation:
2018 FCA 48
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CORAM:
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STRATAS J.A.
NEAR J.A.
WOODS J.A.
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BETWEEN:
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SANTOSH SHARMA
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
NEAR J.A.
I.
Overview
[1]
The applicant, Santosh Sharma, applies for
judicial review of an order of the Social Security Tribunal (Appeal Division)
dated May 24, 2017. The Appeal Division dismissed the applicant’s appeal from a
decision of the Social Security Tribunal (General Division) which found that
the applicant does not suffer a severe disability.
II.
Background
[2]
The applicant stopped working due to various
medical conditions including sleep apnea, asthma, hypertension, diabetes,
depression, and chronic pain in his hip and ankle. He applied for a disability
pension under the Canada Pension Plan, R.S.C. 1985, c. C-8 (Act).
Paragraph 42(2)(a) of the Act provides that a person is disabled for the
purposes of the Act if the disability is both severe and prolonged:
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When person deemed disabled
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Personne
déclarée invalide
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42(2) For the purposes of this Act,
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42(2) Pour
l’application de la présente loi :
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(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,
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a) une personne
n’est considérée comme invalide que si elle est déclarée, de la manière
prescrite, atteinte d’une invalidité physique ou mentale grave et prolongée,
et pour l’application du présent alinéa :
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(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
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(i) une invalidité n’est grave que si elle rend la personne à
laquelle se rapporte la déclaration régulièrement incapable de détenir une
occupation véritablement rémunératrice,
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(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
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(ii) une
invalidité n’est prolongée que si elle est déclarée, de la manière prescrite,
devoir vraisemblablement durer pendant une période longue, continue et
indéfinie ou devoir entraîner vraisemblablement le décès;
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The Minister of Employment and Social
Development denied the application initially and on reconsideration. Then the applicant
appealed the decision to the General Division.
III.
General Division Decision
[3]
The General Division found that the applicant
was not eligible for a disability pension because he had not established a
severe disability. It explained that the evidence did not establish on the
balance of probabilities that he lacked the capacity to pursue sedentary,
non-physically demanding employment and so the applicant had an obligation to
seek alternative employment but did not do so. Further, the General Division
explained that the applicant did not meet his duty to mitigate because he did
not follow medical advice and did not provide a reasonable explanation for his
failure to do so. Therefore, the disability was not severe. The applicant sought
leave to appeal this decision to the Appeal Division. The only issue for which
leave to appeal was granted was whether the General Division applied the proper
legal test on the issue of whether the disability was severe.
IV.
Appeal Division Decision
[4]
The Appeal Division dismissed the appeal. It
found that the General Division did not apply the proper test for severity as
it did not analyze how the applicant’s personal characteristics impacted his
capacity to pursue any substantially gainful occupation in a “real world” context in accordance with Villani v.
Canada (Attorney General), 2001 FCA 248, [2002] 1 F.C.R. 130 (Villani).
It found, however, that this error is moot because the General Division also
found that the applicant did not make reasonable efforts to follow medical
advice to alleviate his conditions or provide a reasonable explanation why he
did not do so (Lalonde v. Canada, 2002 FCA 211, 299 N.R. 229). The
Appeal Division explained that it should not intervene in the General
Division’s assessment of whether non-compliance was reasonable as this is a
question for the trier of fact and that the General Division considered this
question.
[5]
The applicant filed an application for judicial
review in this Court.
V.
Issues
[6]
I would characterize the issues for us to
determine in this judicial review as follows:
- Can the
applicant submit new evidence?
- Did the General
Division breach the applicant’s right to procedural fairness?
- Was the decision
of the Appeal Division reasonable?
VI.
Analysis
A.
The applicant cannot submit new evidence.
[7]
The applicant submits new evidence regarding his
language proficiency, work experience, and reasons for not following treatment
recommendations in the form of multiple affidavits. Generally, a party cannot
submit new evidence on an application for judicial review: Bernard v. Canada (Revenue Agency), 2015 FCA 263, 479 N.R. 189; Delios
v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171. The role of this
Court is to decide whether the decision of the Appeal Division was reasonable
based on the evidence that was before it (Connolly v. Canada (Attorney General),
2014 FCA 294, 466 N.R. 44). The respondent argues that a judicial review should
not be an opportunity to correct the deficiencies of the applicant’s testimony
at the hearing before the General Division. I agree.
[8]
The rule against permitting new evidence in a
judicial review proceeding respects the differing roles played by judicial
review courts and administrative decision-makers (Association of
Universities and Colleges of Canada v. Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at para. 16, 428 N.R. 297 (Access
Copyright)). Parliament gave the Social Security Tribunal the power to
decide facts relating to disability status and this Court the power to review
that decision based on the facts before the Tribunal (Access Copyright
at para. 17). The three enumerated exceptions for when new evidence can be
introduced in a judicial review proceeding respect these differing roles—as
must any potential additional exceptions. New evidence may be admitted where
(1) it provides general background in circumstances where that information
might assist in understanding the issues relevant to the judicial review but
does not add new evidence on the merits (2) it highlights the complete absence
of evidence before the administrative decision-maker on a particular finding,
or (3) it brings to the attention of the judicial review court defects that
cannot be found in the evidentiary record of the administrative decision-maker:
Access Copyright at para. 20; Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128; Tsleil-Waututh Nation
v. Canada (Attorney General), 2017 FCA 116. As this Court explained
in Access Copyright at paragraph 20, “[i]n fact,
many of these exceptions tend to facilitate or advance the role of the judicial
review court without offending the role of the administrative decision-maker”.
[9]
Our role is to review the decision of the Appeal
Division based on the facts before it. It is not to consider new evidence that
should have been placed before the General Division and the Appeal Division.
The new evidence in this matter does not provide general background
information, highlight the complete lack of evidence before the decision-maker
on a particular finding, or point out defects not evident in the record.
Ultimately, the new evidence tendered by the applicant here provides additional
information that was available at the time of the hearing before the General
Division and that goes to the merits. Thus, the new evidence is inadmissible and
so it must be struck from the record.
B.
The General Division did not breach the
applicant’s right to procedural fairness.
[10]
It is not necessary to set out the standard of
review for procedural fairness because there was no breach of procedural
fairness in this case on any standard.
[11]
The applicant argues that his right to
procedural fairness was breached because he was not provided an opportunity to
have an interpreter at the hearing before the General Division. I disagree. The
General Division’s Notice of Hearing informed the applicant that he could
request an interpreter. The applicant, who was represented by a fluent
paralegal at the General Division hearing, chose not to make this request. The
applicant has a duty to raise issues of procedural fairness at the earliest
opportunity. If the applicant felt that there was a breach of procedural
fairness by the General Division, he or his paralegal should have raised this
issue before the General Division. This, however, is the first time that the
applicant has raised this argument and, in my view, it is not open to this Court
to review this issue of procedural fairness.
C.
The Appeal Division’s decision that the
applicant does not suffer from a severe disability is reasonable.
[12]
In my view, the question before this Court is
not whether the Appeal Division applied the correct legal test. It did. Rather the
question is whether the Appeal Division properly applied that legal test. This
is a question of mixed fact and law and should be reviewed on the standard of
reasonableness: Dunsmuir v. New Brunswick 2008 SCC 9 at para. 53, [2008]
1 S.C.R. 190 (Dunsmuir). As long as the decision of the Appeal Division
is justifiable, transparent, and intelligible and “falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law”, this Court will not intervene (Dunsmuir at
para. 47).
[13]
It is not for this Court to re-weigh evidence
that was before the Appeal Division. The Appeal Division upheld the General
Division’s finding that the applicant did not make reasonable efforts to follow
medical advice and that this makes any analysis of the applicant’s personal
characteristics as outlined in Villani moot. This was reasonable based
on the evidence before it. In my view, the analysis to establish a severe
disability under paragraph 42(2)(a) of the Act requires an analysis of
both the personal characteristics outlined in Villani and the duty to
mitigate outlined in Lalonde. If either aspect fails, the applicant does
not establish a severe disability.
[14]
The Appeal Division cited paragraphs 72 and 73
of the decision of the General Division where the General Division found that
the applicant did not make reasonable efforts to follow medical advice because
he did not use his sleep mask as instructed and left the hospital against
medical advice. The Appeal Division explained its approach to these findings at
paragraph 16 of its decision:
[16] The Appeal Division should not be
conducting its own assessment of whether an appellant’s non-compliance is
reasonable, provided that the General Division is aware of and considers whether
an appellant’s non-compliance with treatment recommendations is reasonable, and
what impact that refusal has on an appellant’s disability status. I am
satisfied that, in this case, the General Division considered whether the
Appellant’s non-compliance with treatment recommendations was reasonable and
what impact that had on his disability status.
[15]
In my view, given that the Appeal Division found
that the applicant did not meet his duty to mitigate, it was reasonable for it
to find that any error on the part of the General Division to adequately
consider the personal characteristics outlined in Villani was moot. This
decision is reasonable in light of the evidence that was before the Appeal
Division.
VII.
Conclusion
[16]
For the foregoing reasons, I would dismiss the
application for judicial review with costs in the amount of $250.00.
"David G. Near"
"I agree.
David Stratas J.A."
"I agree.
J. Woods J.A."
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