Docket: T-664-16
Citation:
2016 FC 1254
Ottawa, Ontario, November 10, 2016
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
|
|
KARA JOHNSON
|
|
Plaintiff
|
|
and
|
|
THE ATTORNEY GENERAL OF CANADA
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
decision dated December 15, 2015 of a member of the Appeal Division of the
Social Security Tribunal of Canada [Appeal Division], refusing an application
requesting leave to appeal a decision dated August 10, 2015 by the General
Division – Income Security Section of the Social Security Tribunal [General
Division] to deny the Applicant disability benefits under the Canada Pension
Plan, RSC 1985, c C-8 [CPP]. The Applicant seeks an order granting the
request for leave to appeal to the Appeal Division.
[2]
As explained in greater detail below, this
application is dismissed because the Appeal Division’s decision, refusing leave
to appeal on the basis that the Applicant’s appeal would not have a reasonable
chance of success, is reasonable, falling within a range of possible,
acceptable outcomes which are defensible in respect of the facts and the law.
II.
Background
[3]
The Applicant, Kara Johnson, last worked as a
waitress in a restaurant, from March 1998 until February 7, 2006, and has not
worked since. She previously worked as a waitress and marina attendant in a
family-owned business from 1985 until 1995.
[4]
Ms. Johnson stopped working after she was
involved in a motor vehicle accident on February 8, 2006, in which she
rear-ended a pick-up truck at 80-90 kilometers per hour. As a result of the accident,
Ms. Johnson sustained injuries to her skull, face, jaw, and foot, which
required several surgeries. Her evidence is that her symptoms from the accident
include headaches, pain and numbness in her back and legs, left foot pain,
short term memory loss, confusion and disorientation at times, and depression.
She takes pain medication to get through her days and to help with sleep.
[5]
Ms. Johnson’s position is that she is disabled
and incapable of regularly pursuing any substantially gainful occupation on a
full-time, part-time, or seasonal basis. She claims her disability continues
and is of indefinite duration. Ms. Johnson applied for CPP disability benefits
on February 27, 2012. Her application was denied initially and following a
request for reconsideration. She then appealed the reconsideration decision to
the Office of the Commissioner of Review Tribunals, and the appeal was
transferred to the General Division of the Social Security Tribunal pursuant to
section 257 of the Jobs, Growth and Long-Term Prosperity Act, SC 2012, c
19.
[6]
On August 10, 2015, the General Division issued
its decision, dismissing the appeal. The General Division noted that, to
receive disability benefits under the CPP, Ms. Johnson was required to
establish a severe and prolonged disability on or before the end of the minimum
qualifying period [the MQP Date] for which she had made CPP contributions. The
parties agreed, and the General Division found, that the MQP Date for Ms.
Johnson was December 31, 2007. Having noted that a person is considered to have
a severe disability if he or she is incapable regularly of pursuing any
substantially gainful occupation, the General Division concluded that Ms.
Johnson failed to establish such incapability before her MQP Date, December 31,
2007, and continuously thereafter.
[7]
Ms. Johnson sought leave to appeal the General
Division’s decision to the Appeal Division on the ground of appeal prescribed
by section 58(1)(c) of the Department of Employment and Social Development
Act, SC 2005, c 34 [the Act], that the General Division erred by basing 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]
On December 15, 2015, the Appeal Division issued
its decision refusing Ms. Johnson’s application for leave to appeal, as it
found that the General Division did not err as alleged by Ms. Johnson and was
therefore not satisfied that the appeal would have a reasonable chance of
success.
III.
Issues and Standard of Review
[9]
Ms. Johnson describes the issue in this
application as whether she should be granted leave to appeal the General
Division’s decision. The Respondent refers to two
issues:
A.
Should portions of the Applicant’s affidavit
filed in this judicial review application be struck?
B.
Was the Appeal Division’s decision refusing the
Applicant’s application for leave to appeal reasonable?
[10]
The Respondent’s articulation of the second
issue relies on its position that, in reviewing a decision regarding leave to
appeal from the General Division of the Social Security Tribunal, the standard
of review is reasonableness ( see Tracey v. Canada (Attorney General),
2015 FC 1300, at paras 17-23; Canada (Attorney General) v Hoffman, 2015
FC 1348, at paras 26 -27). Ms. Johnson has made no submissions on the standard
of review. I agree that the authorities cited by the Respondent support the
conclusion that the applicable standard of review is reasonableness, and I so find.
The Court’s role is to consider whether the Appeal Division’s decision falls
within a range of possible, acceptable outcomes, defensible in respect of the
facts and the law (see Dunsmuir v New Brunswick, 2008 SCC 9, at paras
47-49).
[11]
I therefore adopt the Respondent’s articulation
of the issues to be decided by the Court in this application.
IV.
Analysis
A.
Should portions of the Applicant’s affidavit
filed in this judicial review application be struck?
[12]
The Respondent submits that portions of Ms.
Johnson’s affidavit, specifically paragraphs 7, 11-12, and 16-18, should be
struck as they contain opinions and arguments. The Respondent relies on the
reasoning of the Federal Court of Appeal in Canada (Attorney General) v
Quadrini, 2010 FCA 47, at para 18, for the position that an affidavit is to
be confined to facts and should not include opinion or argument.
[13]
Ms. Johnson concurs that paragraphs 7 and 11 of
her affidavit represent opinions, but her position is that paragraphs 12 and 16
to 18 of her affidavit represent a combination of facts and opinions, and she
leaves it to the Court to address the affidavit appropriately.
[14]
As noted by the Respondent, the impugned
paragraphs of the affidavit, or at least the substance thereof, are reproduced
in Ms. Johnson’s Memorandum of Fact and Law filed in this judicial review.
Therefore, while the impugned paragraphs contain some material that is not
appropriate for an affidavit, the arguments contained therein are properly
before the Court through Ms. Johnson’s written submissions. In reliance on Zurita
Vallejos v. Canada (Citizenship and Immigration), 2009 FC 289, at paras 16
to 17, I give no weight to paragraphs 7, 11, and 12, and the last sentence of
each of paragraphs 16 and 18 (all of which I find to represent argument or expressions
of opinion). However, given the reproduction of these arguments in Ms.
Johnson’s written submissions, my decision on this issue does not adversely
affect Ms. Johnson’s ability to advance her arguments in full in this judicial
review.
B.
Was the Appeal Division’s decision refusing the
Applicant’s application for leave to appeal reasonable?
[15]
Ms. Johnson explained that her main argument in
challenging the Appeal Division’s decision is that the General Division and
Appeal Division both erred in determining that her back injury was not a result
of the motor vehicle accident. She submits that she did not have back issues
prior to the accident and that it was not until her participation in a work
hardening program following the accident that she began experiencing back pain.
The work hardening program began in July 2008, and she began to notice back
pain in September 2008, approximately 8 months after her MQP Date. She also
notes that the record includes CT scan results from September 3, 2010 which
indicate a prominent bulging/herniated disc at L4 – L5. Ms. Johnson submits
that that her back injury must have been caused by the accident and that, if
she had started the work hardening program earlier, she would have discovered
the injury prior to the MQP Date.
[16]
The Appeal Division’s decision demonstrates that
it considered this argument. However, it noted that, based on Ms. Johnson’s own
testimony, she did not suffer from back pain on or before the MQP Date. The
Appeal Division also considered the CT scan results and found that the General
Division did not dispute these findings. Rather, the General Division concluded
that the findings came too far after the MQP Date to establish that Ms. Johnson
had a disability that was severe and prolonged on or before the MQP Date. The
Appeal Division therefore found that the General Division did not err in this
aspect of its decision.
[17]
As noted above, the Court’s role is to consider
whether the Appeal Division’s decision was reasonable, in considering whether
Ms. Johnson had a reasonable chance of success in arguing under section
58(1)(c) of the Act that 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. The Appeal Division’s decision demonstrates
that it considered Ms. Johnson’s argument but found no such error by the
General Division. I agree with the Respondent’s position that Ms. Johnson was
asking the Appeal Division to reweigh the evidence related to her back injury
and is again asking the Court to reweigh this evidence in this judicial review.
This is not the role of either the Appeal Division or the Court. I find that
the Appeal Division’s analysis falls within a range of possible, acceptable
outcomes, defensible in respect of the facts and the law, and is therefore
reasonable.
[18]
While referring to this next argument as a more
minor point, Ms. Johnson also submits that the Appeal Division should have
recognized an error by the General Division in concluding that there were
inconsistencies in her answers in a questionnaire she submitted in support of
her application and her answers at the hearing before the General Division. This
argument is based on the following portion of paragraph 10 of the General
Division’s decision:
[10] … She indicated in the Questionnaire
for Disability Benefits (Questionnaire) dated February 22, 2012, the
impairments that prevent her from working were degenerative disc disease, facet
joint disease, chronic back pain, headaches, and jaw pain. She testified the
main reason she has been unable to work since February 8, 2006, is low back
pain and cognitive difficulties.
[19]
Ms. Johnson submits that her answers, in the
questionnaire and at the hearing, were not inconsistent. She refers to her
evidence that she suffered from “multiple head injuries”
and argues that the Appeal Division erred in finding that the General
Division’s omission of this item from the above paragraph was not material. Ms.
Johnson’s argument is that the omission is material, because credibility is
essential in cases involving disability benefits, and inconsistencies in an
applicant’s evidence raise credibility concerns.
[20]
In considering this argument by Ms. Johnson in
her application for leave to appeal, the Appeal Division noted that the General
Division referred to headaches in paragraph 10 of its decision and was not
persuaded that the omission of a specific reference to “multiple
head injuries” was an omission material enough to invoke the application
of section 58(1)(c) of the Act. The Appeal Division also expressed the view
that paragraph 10 was no more than a recitation of the conditions that Ms.
Johnson either stated or testified prevented her from working. It found that
there was no inconsistency.
[21]
I note that paragraph 10 of the General
Division’s decision does not describe Ms. Johnson’s questionnaire and testimony
as being inconsistent. Nor does it make an adverse credibility finding. I
consider the Appeal Division to have reached a reasonable conclusion in
interpreting that paragraph as merely reciting the list of conditions
identified by Ms. Johnson in her questionnaire and testimony. I also find that
the Appeal Division reasonably concluded that the omission of “multiple head injuries” from the list in paragraph 10
is immaterial, given the General Division’s reference to headaches. Based on
the record, I see no support for Ms. Johnson’s argument that that the Appeal
Division overlooked an erroneous negative credibility determination by the
General Division.
[22]
Finally, Ms. Johnson notes that the General
Division’s decision was based in part on a conclusion as to the conservative
nature of her treatment. She argues that the treatment she undertook was
prescribed by her insurance company and her physicians and other advisors
identified by the insurer. Her position is that this treatment was extensive,
that she followed it, and that it was therefore an error to conclude on this
basis that she did not have a severe disability.
[23]
I must again agree with the Respondent’s
position that, in advancing this argument, Ms. Johnson is asking that the
evidence before the General Division be re-weighed. In her Memorandum of Fact
and Law, her submissions on this argument focus in particular upon the General
Division’s reference to the absence of treatment such as cognitive behavioural
therapy. She argues that she received treatment for her cognitive issues from
the case manager appointed by her insurer and that the General Division erred
in failing to recognize such treatment.
[24]
The Appeal Division considered this argument and
noted in particular a psychiatric assessment performed upon Ms. Johnson and the
reports of her occupational therapist. The Appeal Division was not persuaded
that the General Division had erred when it concluded that Ms. Johnson had not
participated in cognitive behavioural therapy sessions, and therefore was not
satisfied that this ground of appeal would have a reasonable chance of success.
[25]
The Respondent argues that cognitive behavioural
therapy is a specific form of treatment and that, notwithstanding references in
the record to discussion of cognitive strategies between Ms. Johnson and her
occupational therapist, it was reasonable for the Appeal Division to conclude
that the General Division did not err in stating that Ms. Johnson had not
undergone cognitive behavioural therapy. Ms. Johnson has not adduced evidence
as to what cognitive behavioural therapy entails. The record before the Court
does not support a conclusion that the Appeal Division reached an unreasonable
decision, outside the range of possible acceptable outcomes, when it found that
this ground of appeal would not have a reasonable chance of success.
[26]
Having round no reviewable error by the Appeal
Division, this application for judicial review must be dismissed. Neither party
has claimed costs, and none are awarded.
Email this Content