Docket: T-192-16
Citation:
2016 FC 1208
Ottawa, Ontario, November 2, 2016
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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DAPHNE MURPHY
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application for judicial review
brought by Daphne Murphy [the Applicant] under s. 18.1 of the Federal Courts
Act, RSC 1985, c F-7 of a decision made on October 8, 2015, by a member of
the Social Security Tribunal – Appeal Division (SST-AD) [SST-AD Decision]
denying the Applicant’s application for leave to appeal. The Applicant sought
leave in order to appeal a decision of the Social Security Tribunal – General
Division (SST-GD) made on August 28, 2015 [SST-GD Decision], which had
dismissed the Applicant’s appeal from a decision denying her application for
Canada Pension Plan (CPP) disability benefits.
[2]
The Applicant is a self-represented litigant.
She designated her husband as a representative to assist her after suffering a
stroke in November 2011.
[3]
Judicial review is granted for the following
reasons.
II.
Facts
[4]
The Applicant is a 58-year-old woman from
Gander, Newfoundland. The record shows that she has a significant speech
impairment, which was apparent at the hearing. She advises she was unable to
speak until she was 7 years old. She obtained a grade 8 education. She married
in 1979 and it appears she divorced in 1993. Her husband was in the armed
forces. She has two children.
[5]
She has a very extensive history of attendances
on physicians. A very large number of visits to various doctors and associated
reports are documented in the Certified Tribunal Record (CTR) from 2011 going
back to the 1990s.
[6]
She is able to access the CPP through credits
accumulated by way of credit-splitting with her former husband from 1979 to
1993. The record indicates she was not otherwise working; she was raising her
two children and advises she was doing some babysitting to make her own money.
She also has contributions from her own work in 2007 and 2008, but they were not
sufficient to entitle her to disability under the Canada Pension Plan,
RSC 1985, c C-8 [CPP Act]. This will be discussed in more detail later.
[7]
Her application for a CPP disability pension was
made under the ‘late application provisions’,
the effect of which is that she may obtain a CPP disability pension if she
establishes she was severely disabled (as defined) as of December 31, 1997, and
remained severely disabled continuously since then.
[8]
The SST-AD conceded the Applicant is currently
disabled as a consequence of injuries to her right knee sustained in a fall on
September 1, 2009, and damages resulting from a stroke on November 29, 2011.
Following the stroke, the Applicant has not been able to work. She has trouble
speaking, spelling and walking without a cane or walker. She is only able to
walk a little distance before her knee gives out on her and as a result, she is
continuously falling. She drags her foot when walking and requires assistance
in order to shower, bathe, eat, go for walks and/or do housework. As noted,
she has a significant speech impairment – she stutters and therefore has
trouble expressing her thoughts.
[9]
Therefore, the issue is not whether she is
severely disabled now; the issues are whether she was severely disabled as of
December 1997, and whether she has remained so continuously.
[10]
On April 19, 2011, the Applicant’s claim for
disability benefits was denied [Denial Letter]. On January 18, 2012, her claim
was again denied after reconsideration by CPP staff [Reconsideration Denial
Letter]. The Denial Letter included a list of documents that had been reviewed
and considered and specific factors that were considered in coming to a
decision. It provided the following as the basis for denial:
We recognize you have identified limitations
resulting from your knee injury and we realize that you may not have been able
to do labour intensive work since 2009. However, we concluded that your
condition did not start until 2009 and this would not have any effect or [sic]
an ability to work in December 1997.
[11]
She appealed to the SST-GD.
[12]
One relevant factor in the Applicant’s appeal
was her work experience. Her contact with the workplace between 1979 and 2011
was minimal. She only made work-related contributions to CPP in 2 of those 32
years, namely 2007 and 2008. She did not work enough in either 2006 or 2010 to
warrant CPP premiums, and the small premium she paid in 2006 ($60.53) was
refunded. She made no payment in 2010. According to the Respondent’s Record,
she worked six months at Tim Hortons’s in Windsor, Nova Scotia, three weeks at
Baskin Robbins and two months at Swiss Chalet in Sackville, Nova Scotia. As I
mentioned earlier, she also did some babysitting a long time ago.
[13]
The Applicant’s appeal to the SST-GD was a paper
appeal. In other words, although the Applicant might have had a de novo
hearing, the matter proceeded without a hearing on the basis of a file review.
The Applicant was given notice that the SST-GD intended to conduct a paper
appeal; she was invited to comment and submit additional material, but took no
position in that regard. In its decision, the SST-GD explained its reasons for
conducting a paper appeal:
[2] The hearing
of this appeal was by decision on the record for the following reasons:
a) The
issues under appeal are not complex;
b) There are no gaps in the information in the file or need for
clarification;
c) Credibility
is not a prevailing issue;
d) The form of hearing respects the requirement under the Social
Security Tribunal Regulations to proceed as informally and quickly as circumstances,
fairness and natural justice permit.
[14]
I pause to note that the paper record before the
SST-GD contained a notation by CPP staff, dated September 28, 2011, that the
Applicant had a “significant speech impairment.”
The same note states that: “[H]er speech impediment
prevents her from doing phone work as well as her education.” The
decision by the SST-GD to proceed without an oral hearing does not refer to
this notation, nor to the Applicant’s speech impairment.
[15]
Based on its paper review, the SST-GD denied the
Applicant’s appeal. The SST-GD found that the Applicant failed to prove, on a
balance of probabilities, that she had a severe and prolonged disability on or
before her minimum qualifying period (MQP) of December 31, 1997.
[16]
On the issue of the severity of the Applicant’s
disability, the SST-GD stated:
[16] There is very little medical evidence
prior to the Appellant’s MQP [the date her minimum qualifying period ended,
i.e., December 31, 1997]. The evidence on file indicates the Appellant suffered
from general medical ailments. The evidence also indicates that the Appellant
was able to work for numerous years and attend school after her MQP. Her
education and limited work experience may present barriers to employment, but
the Tribunal must consider her medical condition as the primary factor.
[emphasis added]
[17]
Although the SST-GD acknowledged that the
Applicant was unable to work at the time of its review, it concluded that there
was “no evidence to support that [the Applicant] had a
severe disability on or before December 31, 1997 that continues to this day.”
Because the test for disability under the CPP Act is conjunctive, the
Member did not make a finding on the prolonged criterion.
[18]
The Applicant sought leave to appeal to the
SST-AD, which denied her application on October 8, 2015.
III.
Decision under Review
[19]
The SST-AD indicated that, in order to succeed
on an application for leave to appeal to the SST-AD under the Department of
Employment and Social Development Act, SC 2005, c 34 (DESDA), the
Applicant must present some arguable ground upon which the proposed appeal
might succeed, citing Kerth v Canada (Minister of Development), [1999]
FCJ No 1252 (FC) [Kerth]. The SST-AD also cited case law for the
proposition that an arguable case is “akin to whether legally
an applicant has a reasonable chance of success”: Canada (Minister of
Human Resources Development v Hogervorst, 2007 FCA 41; Fancy v Canada
(Attorney General), 2010 FCA 63.
[20]
The SST-AD noted that, pursuant to s. 58(1) of DESDA,
there are only three grounds under which an appeal to the SST-AD can be
considered:
a)
the General Division failed to observe a
principle of natural justice or otherwise acted beyond or refused to exercise
its jurisdiction;
b)
the General Division erred in law in making its
decision, whether or not the error appears on the face of the record; or
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.
[21]
The SST-AD member made the following findings:
[6] The Applicant requested leave to
appeal on the basis that she disagreed with the General Division decision. She
set out her physical limitations to support this argument. I accept that the
Applicant currently has these limitations. The General Division decision
correctly stated, however, that in order for the Applicant to receive a Canada
Pension Plan disability pension, she had to have been disabled on or before
December 31, 1997. It clearly set out the basis for its conclusion that the
Applicant was not disabled at that time.
[7] The Applicant’s arguments in
support of her request for leave to appeal do not point to any error made by
the General Division, or to any breach of the principles of natural justice.
Therefore, they are not grounds of appeal under the Act.
[8] The Applicant also argued that
she needed money to pay for medication. This argument also does not point to
any error or to a breach of natural justice by the General Division. Leave to
appeal cannot be granted on this basis.
[22]
The SST-AD found that the Applicant had not
presented a ground under s. 58 of DESDA upon which she had a reasonable
chance of success and consequently denied her application for leave to appeal.
[23]
It is from this decision that the Applicant
seeks judicial review.
IV.
Issues
[24]
This matter raises the following issues:
1.
Whether the SST-AD member’s finding that the
Applicant did not present a ground of appeal with a reasonable chance of
success under s. 58 of DESDA was reasonable?
2.
Whether there is an arguable issue under any of
the grounds provided in s. 58(1) of DESDA?
3.
Whether the Member acted unreasonably in finding
that there was no reasonable chance for success pursuant to s. 58(2) of DESDA,
considering the evidence provided by the Applicant and the law surrounding the
definition of “severe”?
V.
Standard of Review
[25]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
The Respondent correctly submits that the decision by the SST-AD granting or
refusing leave to appeal should be reviewed in this Court on the reasonableness
standard: Tracey v Canada (Attorney General), 2015 FC 1300 at para 17; Canada
(Attorney General) v Hoffman, 2015 FC 1348 at para 27. In addition, Canada
(Attorney General) v O’Keefe, 2016 FC 503 at para 17 indicates that “substantial deference” should be given to the SST-AD.
[26]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
VI.
Relevant Provisions
[27]
DESDA governs the
operation of the Social Security Tribunal. The grounds for appeal are
specifically set out in s. 58(1) of DESDA. The grounds for granting
leave to appeal are set out in s. 58(2):
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Grounds of appeal
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Moyens d’appel
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58 (1) The only grounds of appeal
are that
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58 (1) Les seuls moyens d’appel sont les
suivants :
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(a) the General Division failed to
observe a principle of natural justice or otherwise acted beyond or refused
to exercise its jurisdiction;
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a) la division générale n’a pas observé un
principe de justice naturelle ou a autrement excédé ou refusé d’exercer sa
compétence;
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(b) the General Division erred in
law in making its decision, whether or not the error appears on the face of
the record; or
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b) elle a rendu une décision entachée d’une
erreur de droit, que l’erreur ressorte ou non à la lecture du dossier;
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(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.
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c) elle a fondé sa décision sur une
conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans
tenir compte des éléments portés à sa connaissance.
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Criteria
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Critère
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(2) Leave to appeal is refused if
the Appeal Division is satisfied that the appeal has no reasonable chance of
success.
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(2) La division d’appel rejette la demande
de permission d’en appeler si elle est convaincue que l’appel n’a aucune
chance raisonnable de succès.
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Decision
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Décision
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(3) The Appeal Division must either
grant or refuse leave to appeal.
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(3) Elle accorde ou refuse cette
permission.
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[28]
The requirements for disability benefits are set
out in sections 42 and 44 of the CPP Act. Subsection 44(1)(b)(ii) is
referred to as the ‘late applicant provision’
and applies to the Applicant in this case. Under section 44(1)(b)(ii), a
disability pension may be paid to a contributor:
•
Who has not reached 65 years of age;
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To whom no retirement pension is payable;
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Who is disabled; and,
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Who is a contributor to whom a disability
pension would have been payable at the time the contributor is deemed to have
become disabled if an application for a disability pension had been received
before the contributor’s application for a disability pension was actually
received.
[29]
Subsection 42(2) sets out when a person is
deemed disabled. A person is considered disabled when they have a “severe and prolonged” mental or physical disability.
A disability is considered “severe” when it
renders the person incapable regularly of pursuing any substantially gainful
occupation: CPP Act s. 42(2)(a)(i). A disability is considered “prolonged” where it is likely to be long continued
and of indefinite duration or is likely to result in death: CPP Act s.
42(2)(a)(ii). This section is conjunctive; a person must satisfy both the “severe” and “prolonged”
criteria in order to be found disabled within the meaning of the CPP Act.
If they fail to satisfy one of the two criteria, the other need not be
assessed. Paragraph 42(2)(b) puts a temporal limit on when a person may be
deemed disabled.
VII.
Analysis
[30]
In my respectful view, judicial review should be
granted in this case.
[31]
I say this because, on the critical issue of the
severity of the Applicant’s disability, the SST-GD misapprehended critical and
central evidence concerning the Applicant’s attachment to the workplace,
thereby erring in law and basing its decision on an erroneous finding of fact
without regard for the material before it, which in my respectful opinion are
both bases upon which the SST-AD acting reasonably ought to have granted leave
to appeal.
[32]
This critical misapprehension occurs in the
following passage of the reasons of the SST-GD:
The evidence also indicates that the
Appellant was able to work for numerous years and attend school after
her MQP.
[emphasis added]
[33]
The case turned on the Applicant’s
employability, that is, her ability to work. This finding is of central
importance because it misstates the nature of the Applicant’s ability to work,
and does so in a manner that is not defensible on the record because it is
contrary to the record.
[34]
There was in fact no evidence that the Applicant
was able to work for a single continuous year, let alone the “numerous years” found by the SST-GD. The facts of
this case do not support the finding that she “was able
to work for numerous years”.
[35]
Indeed, the record shows that over the relevant
32 year period (1979 to 2011), the Applicant’s attachment to the workforce was
extremely limited: her short term work in 2007 (in Newfoundland) and 2008 (in
Nova Scotia) and very little else except babysitting many years ago in
Newfoundland. In my respectful view, the SST-GD’s conclusion regarding the
Applicant’s workforce attachment was not supported by the evidence before it.
The decision is based on a misapprehension of the evidence; in addition, in
this central respect, there is no evidence to support it which is an error of
law.
[36]
In my respectful view, this misapprehension of
the evidence, and the absence of evidentiary support, reasonably meets the test
set out in paragraph 58(1)(c) of DESDA which provides that a ground of
appeal exists where the SST-GD “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”. This finding also
constituted an error of law per paragraph 58(1)(b) of DESDA. In my view,
the Applicant therefore had two arguable grounds upon which her proposed appeal
might succeed per Kerth; the Applicant has a reasonable chance of
success on these grounds.
[37]
In my view, a proper consideration of the evidence may have led
to a different outcome, namely the grant of leave to appeal with the possible
result that the SST-AD would refer the matter to the General Division for
redetermination pursuant to s. 59(1) of DESDA, or grant other relief.
[38]
As a consequence, the SST-AD’s decision was not
reasonable because it was not justified on the facts and law, as Dunsmuir
requires. In my view, this aspect of the decision’s unreasonableness is
sufficient basis on which to grant judicial review.
[39]
I wish to add that the Applicant, during the
hearing before me, said that she was unable to obtain work because of her
speech impediment, which, as was noted by CPP staff, is a significant
impairment. She advised that employers she contacted declined to hire her
because her speech impediment would be disruptive to other staff and upsetting
to customers. She stated she was not wanted because of the speech impediment
she was born with. She said she could not even get employment in a back room of
a chain restaurant because of her speech impediment. She says she was
dismissed on account of her speech impairment. She challenges one record
suggesting otherwise: an employer said she ceased working because she moved
and, although she had moved, it was only from Sackville to Bedford, which she
said is a 20 minute drive.
[40]
The jurisprudence, as the SST-GD acknowledged,
establishes that the ‘severity’ criteria for CPP
disability pension purposes must be assessed in a “real
world” context: Villani v Canada (A.G.), 2001 FCA 248, which
entails keeping in mind factors such as age, level of education, language
proficiency and past work, life experience and, importantly, employability.
[41]
In my view, in making these verbal submissions
to the Court at the hearing, the Applicant raises her “real
world” considerations which, if accepted, might entitle her to the
disability pension she seeks because these submissions speak directly to the
core issue of her employability. Villani requires consideration of the “real world” matters of her significant speech
impediment, and employability which may be related, in the assessment of her
alleged severe disability.
[42]
The Federal Court of Appeal describes the “real world” approach. In the words of Isaac, J.A. (as
he then was):
[33] The “real world” approach
was first adopted by the Board in Edward Leduc v. Minister of National
Health and Welfare, CCH Canadian Employment Benefits and Pension Guide
Reports, Transfer Binder 1986-1992 at ¶ 8546, pp. 6021-6022 (January 29,
1988). In that case, the Board found for the applicant on the following
basis:
The Board is advised by medical
authority that despite the handicaps under which the Appellant is suffering,
there might exist the possibility that he might be able to pursue some
unspecified form of substantially gainful employment. In an abstract and
theoretical sense, this might well be true. However, the Appellant does
not live in an abstract and theoretical world. He lives in a real world,
people [sic] by real employers who are required to face up to the realities of
commercial enterprise. The question is whether it is realistic to postulate
that, given all of the Appellant’s well documented difficulties, any employer
would even remotely consider engaging the Appellant. This Board cannot
envision any circumstances in which such might be the case. In the
Board’s opinion, the Appellant, Edward Leduc, is for all intents and purposes,
unemployable.
[43]
The Federal Court of Appeal in Villani
requires that the SST-GD and SST-AD interpret and apply the CPP Act in a
large and liberal manner: paragraph 27 of Villani states:
In Canada, courts have been especially
careful to apply a liberal construction to so-called ‘social legislation.’ In Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para 36, the Supreme
Court emphasized that benefits-conferring legislation ought to be interpreted
in a broad and generous manner and that any doubt arising form the language of
such legislation ought to be resolved in favour of the claimant…. has been
adopted in a number of Supreme Court decisions dealing with the Unemployment
Insurance Act, 1971.
[44]
At paragraph 28, Villani also notes that
the CPP Act is benefits-conferring legislation, and at para 29 states
that any ambiguity flowing from its words must be resolved in favour of a
claimant for disability benefits. Also of importance for the case at bar is
that Villani requires that the proper application of the severity test
involves consideration of the applicant’s employability:
44 In my respectful view, the Board has
invoked the wrong legal test for disability insofar as it relates to the
requirement that such disability must be "severe". The proper test
for severity is the one that treats each word in the definition as contributing
something to the statutory requirement. Those words, read together, suggest
that the severity test involves an aspect of employability.
[45]
The failure to reasonably determine the Applicant’s workforce attachment
means that her Villani real-world assessment was incomplete at
best. This is further reason why judicial review must be granted. The Applicant
had a statute-established right, supported by the case law, to a more
comprehensive disability review that considers her employability in the “real world” in which she lived
and lives. In my view, she did not have such a review.
[46]
In this connection, I doubt very much that a proper Villani
assessment may take place without a de novo hearing before the
SST-GD given her limited education and limited ability to make written
representations, her speech impediment as documented by CPP staff, coupled with
the difficulty she has expressing her thoughts.
[47]
While the Applicant did not explicitly
raise these real world considerations in her written filings, they certainly were
on the record as a result of her discussions with CPP staff. As outlined
above, the paper record reviewed by the SST-GD contained a CPP staff member’s
note that the Applicant had a “significant speech
impairment”. In addition, to reiterate, the same CPP staff stated that: “[H]er speech impediment prevents her from doing phone work
as well as her education.”
[48]
Importantly, this Applicant is still in the system and
in my view should have an opportunity to have these considerations addressed;
they are important to her, they were raised on the record, but were not
considered either by the SST-GD, or by the SST-AD. In my respectful view, it is
not safe to leave them unaddressed.
[49]
In my view, the Applicant’s “real world” issues and employability are best
assessed in a de novo appeal before the SST-GD.
[50]
I am concerned as all parties must be with delay
in resolving the Applicant’s rights. Her significant speech impediment and “real world” situation and employability were first
documented by CPP staff more than five years ago: the relevant CPP’s
Development Contact Record is dated September 28, 2011. Given this and the
importance of bringing this matter to a resolution, and in light of the fact
that the Applicant is now disabled, and considering subsection 18.3(3) of the Federal
Courts Act, I considered but decided against directing that the SST-AD cause
the SST-GD to proceed with a fresh appeal de novo so that the
Applicant’s real world employability may be assessed as required by Villani,
together with other issues the Applicant may raise. I decline to do so
because this is a matter for the SST-AD to determine.
VIII. Conclusion
[51]
Judicial review is granted.
IX.
Costs
[52]
The Respondent did not seek costs; in my view
this is not a case for costs.
X.
Procedural Note – Style of Cause
[53]
The Respondent correctly requests that the style
of cause in this matter be amended to show the respondent as the Attorney
General of Canada. The Applicant consents and therefore it is so ordered,
effective immediately.
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