Docket: A-374-13
Citation:
2014 FCA 187
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CORAM:
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DAWSON J.A.
GAUTHIER J.A.
TRUDEL J.A.
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BETWEEN:
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KRISTINE ATKINSON
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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
TRUDEL J.A.
I.
Introduction
[1]
This is an application for judicial review of a
decision of the Social Security Tribunal, Appeal Division (SST) dated October
15, 2013 (CP 28929 [SST Decision]), dismissing Mrs. Kristine Atkinson’s (the
applicant) appeal and confirming that she no longer qualifies for disability
benefits under the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP).
Paragraph 70(1)(a) of the CPP provides that a disability pension ceases
to be payable with the payment “for the month in which
the beneficiary ceases to be disabled”. In turn, paragraph 42(2)(a)
of the CPP explains that an individual will be considered disabled “only if he is determined…to have a severe and prolonged
mental or physical disability” and that “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”. The SST found that the Minister of Human Resources
and Skills Development Canada (the Minister) had met the burden of proving that
Mrs. Atkinson had regained a capacity for gainful employment and was therefore
not disabled pursuant to paragraph 42(2)(a) as of January 2011.
[2]
After careful consideration of the parties’
written and oral submissions, I propose to dismiss the application for judicial
review. The applicant has failed to convince me that the SST committed a
reviewable error in applying paragraph 42(2)(a) to the facts at hand,
and in determining that Mrs. Atkinson no longer qualifies for disability
benefits. The SST interpreted paragraph 42(2)(a) in a manner consistent
with prior jurisprudence and I have not found that the SST’s decision falls
outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and the law” (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47 [Dunsmuir]).
[3]
The CPP’s definition of disabled is highly
restrictive; the focus is on those physical and mental limitations that affect
a claimant’s capacity to work. Thus, individuals who experience significant and
prolonged health challenges may nonetheless not qualify for a disability
pension if they are found to be capable regularly of pursuing a substantially
gainful occupation. The record before our Court demonstrates that Mrs. Atkinson
is a remarkable individual who has managed to pursue substantially gainful
employment since 2009 despite her significant physical limitations. As a
result, although I am sympathetic to the applicant’s situation, I am unable to
conclude that the SST’s decision to deny her disability benefits was
unreasonable.
II.
Factual Background and Procedural History
[4]
Mrs. Atkinson was born in 1967. At around age
12, she started experiencing progressive difficulties using her arms and, to a
certain extent, her legs as well. She had impaired sensation in both arms with
worse symptoms on the right side. In 1993, she was found to have a tumour in
her cervical cord associated with a large cyst. She underwent surgery during
which the tumour was partially removed (respondent’s record, volume 1 at pages
209-210). This operation resulted in a spinal fluid leak that caused further
damage. She now suffers from paresis and atrophy of her right arm and right leg
and has limited use of her left hand. She walks with a spastic gait and is
unsteady on her feet. She also suffers from Crohn’s disease but this medical
condition does not form the basis of her disability claim.
[5]
In 1993, Mrs. Atkinson applied for and was
granted disability benefits pursuant to paragraphs 44(1)(b) and 42(2)(a)
of the CPP. Paragraph 44(1)(b) provides, inter
alia, that in order to qualify for disability
pension, an individual must be under the age of 65, not be in receipt of CPP
retirement pension, have made valid contributions to the CPP for not less than
the Minimum Qualifying Period and must be disabled within the meaning afforded
to this term under the CPP. Paragraph 42(2)(a), in turn, provides the
CPP’s definition of disabled.
[6]
It reads:
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(2) For the
purposes of this Act,
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(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;
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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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[7]
The Government of Canada’s website also sets out
a “Canada Pension Plan Adjudication Framework” in order to assist CPP
decision-makers interpreting and applying subsection 42(2) of the CPP.
Importantly for the purposes of this case, this document explains that
individuals who are working for a “benevolent employer” could still be
considered severely disabled under subparagraph 42(2)(a)(i), even if
they work regular hours and receive income that is considered “substantially
gainful.” It defines “benevolent employer” as follows :
A “benevolent
employer” is someone who will vary the conditions of the job and modify
their expectations of the employee, in keeping with her or his limitations. The
demands of the job may vary, the main difference being that the performance,
output or product expected from the client, are considerably less than the
usual performance output or product expected from other employees. This reduced
ability to perform at a competitive level is accepted by the
"benevolent" employer and the client is incapable regularly of
pursuing any work in a competitive workforce. Work
for a benevolent employer is not considered to be an "occupation" for
the purposes of eligibility or continuing eligibility for a CPP disability
benefit (http://www.esdc.gc.ca/eng/disability/benefits/framework.shtml).
[8]
Between 1993 and 2009, Human Resources and
Skills Development Canada (HRSDC) reassessed Mrs. Atkinson’s eligibility for
disability benefits five times. In 2001 and 2005, HRSDC initially discontinued
her benefits, as it found that her employment rendered her ineligible
(applicant’s record at pages 29 and 43). However, in both instances the
applicant appealed these decisions to the Review Tribunal and, prior to her
appeal being heard, her benefits were restored (applicant’s record at pages 37
and 45).
[9]
In 2009, she began her current employment as the
Restorative Justice Coordinator with the Royal Canadian Mounted Police
Detachment in the City of Campbell River, British Columbia. Her position
involves reviewing emails and police records to determine whether offenders are
suitable for restorative justice, interviewing offenders and victims, and
arranging and facilitating forums in which the offender and victim agree how
the wrong committed might be remedied. She has earned approximately $43,000 to
$45,000 per year from this employment between 2009 and 2012 as compared to
earnings ranging from $0 to $19,144 between 2000 and 2008.
[10]
Mrs. Atkinson has received a number of accommodations
from her current employer. For instance, she is permitted to park in the fire
lane, 20 steps from the door to her office building; her meetings and forums
are held exclusively within the building where she works; she wears a headset
when using the telephone; her husband or another employee sets up furniture for
each forum she conducts and her husband purchases and carries refreshments for
these forums; her co-workers assist her by doing up her zippers or buttons and
by lifting and carrying binders and other items for her. As well, while her
employment contract states that she is required to work six hours a day for a
total of 30 hours per week, she is not required to record or account for her
hours each week like other employees. Aside from a few months, she has worked
over 70% of the hours required of her.
[11]
In December 2010, HRSDC reassessed Mrs. Atkinson
and found that she no longer qualified for disability benefits on account of
her current employment (applicant’s record at page 51). Mrs. Atkinson requested
a reconsideration of that decision; however, in March 2011 Service Canada
confirmed that her benefits could not be reinstated. It explained that
part-time work, even on a flexible schedule, is considered regular work for the
purposes of CPP disability benefits. It also explained that while her employer
was providing her with accommodations, it was not a benevolent employer as she
was receiving a substantial salary and it found no evidence that her employer
had lowered expectations of her productivity or work performance. Service
Canada also noted that she has been able to maintain her position for several
years and that her benefits had been continued in 2009 because it was believed
that she would be unable to sustain her work as she would be undergoing surgery
(applicant’s record at pages 54-55).
[12]
Mrs. Atkinson appealed this decision before the
Review Tribunal, which dismissed her appeal. The Tribunal found that the
Minister had “met the burden of proof in demonstrating
that the Appellant has shown her capacity to regularly pursue substantially
gainful employment within her limitations and that the accommodations provided
by her employer can reasonably be expected in any competitive work environment”
(Review Tribunal Decision at paragraph 13).
[13]
The applicant then sought leave to appeal to the
Pension Appeals Board (PAB) pursuant to subsection 83(1) of the CPP. In a
decision dated October 31, 2012, a member of the PAB granted leave to appeal,
finding that Mrs. Atkinson had established an arguable case.
[14]
On April 1, 2013, the SST replaced the PAB and
thus Mrs. Atkinson’s appeal was set down for hearing before the new SST.
Because the applicant had a legitimate expectation that the PAB would conduct a
de novo appeal, the SST
explained that “the appeal determination will be made
on the basis of an appeal de novo in accordance with subsection 84(1) of the
CPP as it read immediately before April 1, 2013” (SST Decision at
paragraph 6).
[15]
The SST ultimately dismissed the appeal, finding
that the applicant is not currently disabled within the meaning of the CPP and
has not been since 2011, as she “has obtained
substantially gainful work within her limitations, and maintained it at least
since she began her current job in January 2009” (SST Decision at
paragraph 45). The SST explained that the respondent met the burden of proving,
on a balance of probabilities, that Mrs. Atkinson had ceased to be disabled
under the CPP. The SST found that while Mrs. Atkinson’s employer accommodated
her needs, it was not a benevolent employer and her employment was
substantially gainful as “she is paid well for valuable
work, and her income is not nominal” (SST Decision at paragraph 36).
Moreover, it explained that she is able to complete the essential tasks of her
job without assistance and has been able to attend work regularly and
predictably.
[16]
The applicant now seeks judicial review to our
Court.
III.
Applicant’s Position
[17]
The applicant argues that the SST erred in
interpreting and applying paragraph 42(2)(a) and advances three primary
arguments to support this claim.
[18]
First, Mrs. Atkinson argues that the SST erred
in finding that she was capable regularly of pursuing a substantially gainful
occupation. She maintains that the term “regularly” connotes that an individual
must be capable of being able “to come to the place of
employment whenever and as often as is necessary” and that “predictability is the essence of regularity” (applicant’s
memorandum at paragraph 69). She explains that since she was unable to predict
when she could attend work and how long she could stay, she was not capable regularly
of pursuing an occupation and thus ought to still be entitled to receive
benefits.
[19]
Second, she maintains that the SST misapplied
the concept of “benevolent employer” and erred in finding that her current
employer is not benevolent. The applicant explains that this concept is “part
of the scheme” of what amounts to being disabled under paragraph 42(2)(a).
She also asserts that the evidence before the SST – regarding her employer’s
accommodations, the assistance she received from her co-workers and husband,
and the fact that she was paid for full attendance despite working 70% of her
required hours – demonstrates that her employer was benevolent and that she
therefore remained disabled under the CPP, despite her employment.
[20]
Finally, she argues that the SST erred by
shifting the burden onto the applicant to demonstrate that her employer was
benevolent. In support of this argument, she cites to a passage of the SST’s
decision in which it states that the “appellant
provided no evidence that these accommodations are beyond what is required of
an employer in the competitive marketplace” (SST Decision at paragraph
35). She argues that the onus was on the Minister to show that the employment
was not benevolent in order to demonstrate that she no longer qualified for
disability benefits.
IV.
Analysis
[21]
This case requires our Court to determine two
primary issues. First, what is the appropriate standard of review for the SST’s
Decision? Second, whether the SST erred in finding that the applicant was no
longer disabled according to paragraph 42(2)(a) of the CPP and thus no
longer qualified for disability pension pursuant to paragraph 70(1)(a).
A.
Standard of Review
[22]
On an application for judicial review, courts
must first consider whether prior jurisprudence has established the appropriate
standard of review to be applied to the issue or category of question at hand (Dunsmuir
at paragraph 62). If this first inquiry is “unfruitful,
or if the relevant precedents appear to be inconsistent with recent
developments in the common law principles of judicial review” then the
court must engage in a contextual standard of review analysis to determine the
applicable standard (Agraira v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paragraph 48 [Agraira]).
This second contextual inquiry involves considering the factors set out at
paragraphs 51 to 61 of Dunsmuir – i.e. the presence or absence of
a privative clause; the purpose of the tribunal in view of its enabling
legislation and the tribunal’s expertise; and the nature of the question at
issue – and examining whether these factors point towards a standard of
reasonableness or correctness in the case at hand. I note that no argument was
made that the SST’s de novo determination of Mrs. Atkinson’s appeal
affects the standard of review analysis.
[23]
Prior jurisprudence demonstrates that our Court
afforded deference to the PAB when reviewing its decisions as to whether an
individual is disabled within the meaning of paragraph 42(2)(a) (see
e.g. Farrell v. Canada (Attorney General), 2010 FCA 181, [2010] F.C.J.
No. 895; Kaminski v. Canada (Social Development), 2008 FCA 225, leave to
appeal to S.C.C. refused, 32807 (October 22, 2009)) but that the PAB’s interpretation
of paragraph 42(2)(a) was subject to a correctness standard of review (Canada
(Minister of Human Resources Development) v. Scott, 2003 FCA 34, 120
A.C.W.S. (3d) 310 [Scott]; Villani v. Canada (Attorney General), 2001 FCA 248,
[2002] 1 F.C. 130 [Villani]).
[24]
However, our Court is now reviewing, for the
first time, a decision of the new SST, not the PAB. As a result, I conclude
that prior jurisprudence has not adequately established the standard applicable
to the issue at hand and that I must turn to a contextual analysis to determine
the appropriate standard of review anew. For the reasons that follow, I find
that the SST’s interpretation and application of paragraph 42(2)(a) of
the CPP are reviewable on a standard of reasonableness.
[25]
The Supreme Court of Canada has clarified that
there exists a presumption that the standard of review is reasonableness where
an administrative decision-maker is interpreting its “home statute” (i.e. its
enabling statute) or a statute “closely connected to
its function and with which it will have particular familiarity” (Dunsmuir
at paragraph 54; Alberta (Information and Privacy Commissioner) v. Alberta
Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at paragraphs 30
and 34 [Alberta Teachers]; Agraira at paragraph 50). This
presumption, however, is not absolute. For instance, it may be rebutted if the “interpretation of the home statute falls into one of the
categories of questions to which the correctness standard continues to apply” (Alberta
Teachers at paragraph 30). These exceptional categories include “constitutional questions, questions of law that are of
central importance to the legal system as a whole and that are outside the
adjudicator’s expertise, …[q]uestions regarding the jurisdictional lines
between two or more competing specialized tribunals [and] true questions of
jurisdiction or vires” (Ibidem). This presumption may also be rebutted through a contextual
analysis, and, more specifically, in cases where tribunals and courts may both
be tasked with considering the same legal question at first instance (Rogers
Communications Inc. v. Society of Composers, Authors and Music Publishers of
Canada, 2012 SCC 35, [2012] 2 S.C.R. 238 at paragraph 16; McLean v.
British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895
at paragraphs 22-24). Our Court, in turn, has also found that the presumption
may be rebutted if the Dunsmuir factors point towards a correctness
standard of review (Canada (Citizenship and Immigration) v. Kandola,
2014 FCA 85, [2014] F.C.J. No. 322 at paragraphs 38-45; Takeda Canada Inc.
v. Canada (Health), 2013 FCA 13, leave to appeal to S.C.C. refused, 35276
(June 13, 2013) at paragraphs 28-29).
[26]
In the present case, the SST is interpreting and
applying its home statute and I find that the presumption of a standard of
reasonableness is not rebutted. The alleged legal errors do not fall within any
of the recognized exceptional categories, this is not an instance in which
tribunals and courts may be called upon to determine the same issue at first
instance and the Dunsmuir factors, considered together, do not weigh in
favour of a correctness standard.
[27]
The Department of Employment and Social
Development Act, S.C. 2005, c. 34 [DESDA], which created the SST, contains
a privative clause at section 68 which states: “The
decision of the Tribunal on any application made under this Act is final and,
except for judicial review under the Federal Courts Act, is not subject to
appeal to or review by any court.” Typically a privative clause points
towards a standard of reasonableness; however, this privative clause explicitly
enables our Court to review the SST’s decisions. Therefore, the existence of
this privative clause does not support a deferential standard of review.
[28]
With regard to the SST’s expertise and mandate,
one might suggest that the SST’s membership, composition and legislative powers
indicate that it has less expertise than the PAB in interpreting the CPP, and
thus that our Court owes even less deference to the SST than it did towards the
PAB. Subsection 83(5) of the former version of the CPP required that the PAB be
partially composed of judges of the Federal Court of Appeal, the Federal Court
or a superior court of a province. In turn, subsection 82(3) also used to
require that the Review Tribunal’s membership contain twenty-five percent
lawyers and twenty-five percent doctors. By contrast, the DESDA does not
require that any of the SST’s members be judges, lawyers or doctors. Rather,
subsection 45(1) of this statute states that the SST will be composed of no
more “than 74 full-time members to be appointed by the
Governor in Council” while subsection 45(2) states that the Governor in
Council will also designate one of the full-time members as the Chairperson,
and three as Vice-chairpersons.
[29]
In addition, whereas the PAB was tasked with
hearing appeals specifically relating to the interpretation or application of
the CPP, the SST’s Appeal Division currently has a broader mandate. The General
Division of the SST (the first level of appeal) is divided into the Employment
Insurance Section, which hears appeals of reconsideration decisions made by the
Canada Employment Insurance Commission, and the Income Security Section, which
hears appeals from reconsideration decisions regarding CPP or Old Age Security
Pension/Benefits (DESDA at section 44). The Appeal Division of the SST, in
turn, hears appeals from both sections of the General Division. Thus one might
suggest that the Appeal Division of the SST has less expertise than the PAB, as
it does not hear appeals exclusively relating to the CPP.
[30]
The creation of the SST represents a major
overhaul of the appeal processes regarding claims for employment insurance and
income security benefits. It was intended to provide more efficient, simplified
and streamlined appeal processes for Canada Pension Plan, Old Age Security and
Employment Insurance decisions by “offering a single
point of contact for submitting an appeal” (online: Social Security Tribunal –
Canada.ca http://www.canada.ca/en/sst/). The changes made are not
limited to the composition and structure of the SST, but also to the rules of
practice (see the Social Security Tribunal Regulations, SOR/2013-60).
[31]
In my view, the differences between the SST and
the PAB’s structure, membership and mandate do not diminish the need to apply a
deferential standard in reviewing the SST’s decisions. One of the SST’s
mandates is to interpret and apply the CPP and it will encounter this
legislation regularly in the course of exercising its functions. Moreover, subsection
64(2) of the DESDA also restricts the type of questions of law or fact that the
Tribunal may decide with respect to the CPP, presumably in order to better
ensure that the SST is only addressing issues that fall within its expertise.
These factors suggest that Parliament intended for the SST to be afforded
deference by our Court, as it has greater expertise in interpreting and
applying the CPP.
[32]
Finally, with regard to the nature of the legal
questions raised on this application, these are not questions of central
importance to the legal system as a whole nor do they fall outside the
specialized expertise of the SST. They are also not constitutional questions or
jurisdictional questions. With regard to the alleged factual errors or errors
made in applying the law to the facts at hand, these are also reviewable on a
standard of reasonableness (Dunsmuir at paragraph 53).
[33]
Having concluded that the standard of review is
reasonableness, I now turn my analysis to whether the SST’s interpretation and
application of paragraph 42(2)(a) was reasonable.
B.
Paragraph 42(2)(a)
[34]
The purpose of the CPP is to assist Canadians
who experience a loss of earnings as a result of retirement, disability or the
death of a wage earning family member by providing them with social insurance.
However, as the Supreme Court of Canada has pointed out, the CPP “is not a social welfare scheme. It is a contributory plan
in which Parliament has defined both the benefits and the terms of entitlement,
including the level and duration of an applicant's financial contribution” (Granovsky
v. Canada (Minister of Employment & Immigration), 2000 SCC 28, [2000] 1
S.C.R. 703 at paragraph 9).
[35]
As mentioned previously, paragraph 42(2)(a)
clarifies the conditions under which an individual will qualify for disability
benefits and restricts the receipt of these benefits to individuals whose
disability is “prolonged” and “severe”. To qualify for benefits under this
provision, individuals must provide medical evidence showing that their “disability is likely to be long continued and of indefinite
duration or is likely to result in death” (subparagraph 42(2)(a)(ii))
as well as evidence, with regard to their employment efforts or
possibilities, that demonstrates that they are
“incapable regularly of pursuing any substantially gainful occupation” (subparagraph
42(2)(a)(i)). In the present case, only the latter requirement is at
issue.
[36]
Mrs. Atkinson has failed to convince me that the
SST committed any reviewable errors in finding that she no longer qualifies for
disability benefits.
[37]
The SST did not err in its interpretation of
what qualifies as incapable “regularly” of pursuing employment. Our Court has
held that in interpreting paragraph 42(2)(a) it is not the
employment that must be “regular,” but rather the incapacity to work. In other
words, in order to constitute a severe disability, an individual needs to
regularly be incapable of pursuing a substantially gainful occupation (Scott
at paragraph 7). In turn, in Villani our Court explained that paragraph
42(2)(a) does not require that “an applicant be
incapable at all times of pursuing any conceivable occupation” [emphasis
in the original] (at paragraph 38). Rather, an individual needs to be “incapable of pursuing with consistent frequency any truly
remunerative occupation” (ibidem at paragraph 38).
[38]
The SST explained that
“predictability is the essence of regularity within the CPP definition of
disability” and assessed whether Mrs. Atkinson was capable of working
predictably. The SST also provided ample support for its conclusion that she
was regularly capable of working. It noted that she attends work at least 70%
of the time and that there was no evidence of any complaints or disciplinary
action because of missed time. It also pointed out that while she receives some
help from her co-workers and husband, she is able to perform the essential
tasks of her job without assistance.
[39]
I am also not persuaded that the SST
erred in its discussion of what constitutes a benevolent employer or who bears
the burden of demonstrating that an employer is benevolent. There is no
requirement under the CPP that the respondent prove that an employer is not
benevolent in order to cease benefits. Rather, the SST explained correctly that
the burden lies on the respondent to “prove on a
balance of probabilities that the Appellant has ceased to be disabled” and
thus that the requirements of paragraph 42(2)(a) were no longer met.
Whether an individual’s employer is benevolent is but one factor that the SST
can consider in determining whether or not an individual is “incapable regularly of pursuing any substantially gainful
occupation.”
[40]
The SST also pointed out that the term
benevolent employer is not used or defined in the CPP, and explains that
counsel has provided a definition of this term on the basis of Service Canada’s
policy documents (SST Decision at paragraph 35). While this definition is not
binding on our Court, the SST’s application of this definition nonetheless
provides insight into the factors that contributed to the SST’s Decision, and
enables us to assess whether its application of paragraph 42(2)(a) was
reasonable. The SST recognized the accommodations that Mrs. Atkinson has
received from her employer; however, it found that these accommodations did not
go “beyond what is required of an employer in the
competitive marketplace” (Ibidem). It held that Mrs. Atkinson’s work is productive and there is no
evidence to suggest that her employer was dissatisfied with her work
performance or experienced hardship from the accommodations made. In short,
therefore, it found that her employer was not benevolent as she did have the
ability to perform at a competitive level and the SST did not find evidence
that the work expected from her was considerably less than the work expected
from other employees.
[41]
Jurisprudence establishes that in a case like
this which is primarily fact driven, “the range of
defensible and acceptable outcomes available […] is relatively wide” (Gaudet
v. Canada (Attorney General), 2013 FCA 254, [2013] F.C.J. No. 1189 at
paragraph 9). I find that it was open to the SST to conclude that Mrs. Atkinson
is capable regularly of pursuing substantially gainful employment on the basis
of the evidence on the record.
V.
Proposed Disposition
[42]
I propose to dismiss the application for
judicial review with costs.
“Johanne
Trudel”
“I agree
Eleanor R. Dawson J.A.”
“I agree
Johanne Gauthier J.A.”
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