Docket: T-1043-16
Citation:
2017 FC 356
Ottawa, Ontario, April 11, 2017
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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THE ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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JOYCE TSAGBEY
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This application raises the question as to whether
a party may seek judicial review of a decision that ruled in their favour
because it did not go as far as they would have preferred.
[2]
The Attorney General of Canada seeks judicial
review of a decision of the Social Security Tribunal – Appeal Division (SST-AD),
dated May 31, 2016, under section 18.1 of the Federal Courts Act, RSC,
1985, c F-7. The SST-AD granted the Minister of Employment and Social
Development (Minister) leave to appeal from the decision of the Social Security
Tribunal – General Division (SST-GD) which determined that the respondent,
Joyce Tsagbey, was eligible for a disability pension under the Canada
Pension Plan, RSC, 1985, c C-8 [CPP]. However, the SST-AD accepted only
one of the Minister’s three arguments that the SST-GD had erred, as a valid
ground for leave to appeal. The Attorney General seeks to overturn that
decision and to have the Minister’s appeal proceed on all three arguments
before a different Member of the Appeal Division.
II.
BACKGROUND
[3]
Ms. Tsagbey was born in Ghana on July 27, 1957.
She received a grade 6 education before immigrating to Canada in 1989.
While in Canada, she worked in the health care field for approximately 25
years, first as a Health Care Aide and then as a Personal Support Worker in a
long-term care facility.
[4]
On January 12, 2007, Ms. Tsagbey sustained an
injury to her left wrist/hand while assisting a patient. After taking a few
days off to recover, she returned to work on modified duties but could only
work sporadically until August 2008. She has not worked in any remunerated
capacity since then.
[5]
On August 13, 2007, an orthopaedic surgeon
diagnosed Ms. Tsagbey with wrist cartilage (TFCC) tear and chronic pain in her
left wrist and hand. The surgeon recommended that she wear a splint and avoid
heavy lifting and twisting. On September 4, 2008, Ms. Tsagbey’s physiotherapist
reported that her work restrictions are permanent but that she had the
potential to perform at a sedentary level.
[6]
Following her injury, Ms. Tsagbey completed the
Workers Safety Insurance Board (WSIB) rehabilitation program and the Labour
Market Re-entry (LMR) and Vocational Rehabilitation Services (VRS) programs.
The respondent also completed a WSIB work placement training for the position
of Customer Service Clerk.
[7]
On April 26, 2013, Ms. Tsagbey submitted an
application for a CPP disability pension. She was then 55 years of age. Her
application was denied at initial determination on August 20, 2013, and upon
reconsideration on February 21, 2014. These decisions were based on the
assessment that she could be employed in a sedentary position. On April 1,
2014, Ms. Tsagbey appealed the reconsideration decision to the SST-GD.
[8]
On October 26, 2015, the SST-GD conducted a
hearing by way of teleconference. In a decision dated October 27, 2015, the
SST-GD concluded that Ms. Tsagbey was eligible for a disability pension under
the CPP, as it found her disability was “severe and
prolonged” as of the minimum qualifying period (MQP) of December 31,
2009. On January 26, 2016, the Minister sought leave to appeal the SST-GD’s decision
to the Appeal Division.
[9]
The SST-AD granted the Minister’s request for
leave, in part, on May 31, 2016. It concluded that the SST-GD may have made an
erroneous finding of fact when it found that Ms. Tsagbey’s disability was “severe” on the basis of secondary conditions for
which there was no objective evidence at the time of MQP. This was just one of the
three arguments upon which the Minister had sought leave to appeal the SST-GD
findings. The SST-AD Member dismissed the application for leave to appeal on
the other two arguments.
[10]
This application for judicial review was then
brought by the Attorney General of Canada, on behalf of the Minister, on June
30, 2016. The Attorney General seeks an Order setting aside the SST-AD’s
decision and referring the matter back to a different member of the SST-AD for
determination, with directions to grant the Minister’s application for leave to
appeal on the two refused arguments.
[11]
I have used the term “arguments”
rather than “grounds” in describing the
contentious points at issue in these proceedings for reasons which will become
apparent below.
III.
DECISION UNDER REVIEW
A.
SST-GD’s Decision
[12]
The sole issue before the General Division was
whether it was more likely than not that Ms. Tsagbey had a severe and prolonged
disability on or before the date of the MQP, which the General Division Member
determined to be December 31, 2009. Ms. Tsagbey provided oral testimony at the
hearing, which the Member found to be credible and straightforward. There is no
dispute as to that finding in these proceedings.
[13]
The SST-GD Member noted the applicable law as
paragraph 44(1)(b) of the CPP, which sets out the eligibility requirements for
the CPP disability pension, and paragraph 42(2)(a) of the CPP, which defines
disability as a physical or mental disability that is severe and prolonged.
[14]
The SST-GD reviewed Ms. Tsagbey’s application
materials for a CPP disability pension and her oral evidence. The Member noted
that all of the medical evidence in the hearing file was carefully reviewed. He
then set out those pieces of evidence that he considered to be most pertinent.
In doing so, the Member assessed evidence both prior to and post the MQP date.
[15]
Having reviewed the documentary evidence and the
submissions of the parties, the SST-GD proceeded to conduct an analysis of
whether, on a balance of probabilities, Ms. Tsagbey’s disability was “severe and prolonged” on or before the MQP date of
December 31, 2009. In doing so, the Member first set out the guiding principles
in the jurisprudence and then applied those principles to the facts of the case
at bar.
[16]
Relying on the Federal Court of Appeal’s
decision in Villani v Canada (Attorney General), 2001 FCA 248,
[2001] FCJ No 1217 [Villani], the Member noted that the “severity” requirement must be assessed in a “real world” context. Moreover, factors such as a
person’s age, education level, language proficiency, and past work and life
experiences must be considered when determining the “employability”
of the person.
[17]
The Member also noted that all possible
impairments that affect employability are to be considered, not just the
biggest impairments or the main impairment: Bungay v Canada (Attorney
General), 2011 FCA 47 [Bungay]; Barata v MHRD (January 17,
2001) CP 15058 (PAB). The Member further stated that, where there is evidence
of work capacity, Ms. Tsagbey must establish that she has made efforts at
obtaining and maintaining employment but was unsuccessful because of her
health: Inclima v Canada (Attorney General), 2003 FCA 117, [2003] FCJ No
378 [Inclima].
[18]
The SST-GD found that as of the MQP, and
continuously thereafter, Ms. Tsagbey lacked the capacity to pursue any form of
gainful employment on a regular and consistent basis. The Member reached this
conclusion based on Ms. Tsagbey’s oral evidence as well as the extensive
medical documentation.
[19]
The SST-GD specifically stated that if the
disabling condition was limited to the left wrist injury, then Ms. Tsageby
would not be precluded from all forms of gainful employment. However, the
SST-GD found that the cumulative effect of Ms. Tsagbey’s other conditions and
limitations meant that she could not have pursued, “with
consistent frequency and truly remunerative occupation”: Villani, above,
at para 38. The “other” conditions included
sleep disturbance, elevated blood pressure, diabetic complications, swollen
legs, and follow up after parathyroid surgery.
[20]
As such, the SST-GD was satisfied that Ms.
Tsageby could not have been a predictable and regular employee due to her
health conditions. The SST-GD was also satisfied that Ms. Tsagbey pursued
medical treatment and made her best efforts to continue working and/or to
pursue alternative employment. Therefore, the Member was satisfied, on a
balance of probabilities, that Ms. Tsagbey was suffering from a severe
disability in accordance with the CPP requirements as of the MQP and
continuously thereafter.
[21]
The SST-GD’s analysis of the “prolonged” prong of the definition of disability
under paragraph 42(2)(a) of the CPP was brief in comparison to its discussion
of severity. In essence, the SST-GD found that Ms. Tsagbey’s disabling
conditions have been present since her workplace injury in January 2007, and
despite extensive treatment, her overall condition continues to deteriorate.
Based on the foregoing, the SST-GD concluded that Ms. Tsagbey had a severe and
prolonged disability as of August 2008.
B.
SST-AD’s Decision
[22]
The SST-AD Member set out the applicable law at
the leave stage under the Department of Employment and Social Development
Act, SC 2005, c 34 [DESDA] citing subsections 56(1), 58(1), 58(2), and
58(3).
[23]
Pursuant to subsection 58(2) of the DESDA, the
sole issue for the SST-AD to determine was whether the appeal had a reasonable
chance of success.
[24]
The Minister submitted that the SST-GD based its
decision on erroneous findings of fact made in a perverse and capricious manner
or without regard for the material before it. In raising this ground, the
Minister highlighted three separate instances where, it was argued, the SST-GD
made erroneous findings of fact. The SST-AD summarized those instances as
follows:
•
The finding that all of the respondent’s medical
conditions and impairments were present and disabling as of the MQP, when in
fact some were not symptomatic until years later;
•
The finding that the respondent was disabled in
the absence of objective medical evidence of a severe and prolonged disability
as of the MQP; and,
•
The finding that the respondent lacked the
capacity for employment even though the available evidence, both before and
after the MQP, showed she had the capacity to work at a sedentary occupation.
[25]
The SST-AD noted that for leave to be granted,
there has to be some arguable ground upon which the proposed appeal might
succeed: Kerth v Canada (Minister of Human Resources Department), [1999]
FCJ No 1252; Fancy v Canada (Minister of Social Development), 2010 FCA 63,
[2010] FCJ No 276.
[26]
With respect to the medical conditions secondary
to the left wrist and right shoulder pain, the SST-AD found that there is an
arguable case that the SST-GD made an erroneous finding of fact in a perverse
or capricious manner or without regard to the material before it.
[27]
The Member found that it is an error to take
into account subjective complaints that have no basis in evidence. The Member further
noted that his review of the relevant medical reports did not disclose any
independent confirmation that sleep disturbance, elevated blood pressure,
diabetic complications, swollen legs or follow up after parathyroid surgery
were problematic prior to the MQP date of December 31, 2009.
[28]
With respect to the main medical condition of
left wrist and right shoulder pain, the SST-AD found that there was no arguable
case to appeal. The Member noted the existence of imaging reports, orthopedic
assessments and functional assessment evaluations which provided objective
evidence of the existence of the main medical impairment prior to the MQP.
Relying on Simpson v Canada (Attorney General), 2012 FCA 82, [2012] FCJ
No 334 [Simpson], the SST-AD concluded that the SST-GD was acting within
its jurisdiction in assessing the relevant facts and evidence in arriving at
that conclusion.
[29]
With respect to the issue of Ms. Tsagbey’s
capacity for sedentary work, the SST-AD concluded that the SST-GD conducted a
good faith, albeit brief, assessment of all aspects of Ms. Tsagbey’s
functionality in paragraphs 54, 55 and 58 of its decision. In essence, the
SST-AD concluded that the Minister was seeking to have it re-weigh the evidence
in her favour. As such, the SST-AD did not find a reasonable chance of success
on this issue either.
[30]
Ultimately, the SST-AD granted the Minister’s request
for leave on the ground that the SST-GD may have made an erroneous finding of
fact when it concluded that the respondent’s disability was “severe” on the basis of secondary conditions which
was not supported by objective evidence at the time of MQP. The SST-AD also
invited the parties to make submissions on whether a further hearing is
required and, if so, what type of hearing is appropriate.
[31]
The appeal remains pending before the SST-AD.
[32]
The relevant legislation referred to above and
below is set out in an Annex attached to this Judgment and Reasons.
IV.
ISSUES
[33]
The Court was informed at the hearing that this
application was brought because the applicant considers that there is no
mechanism within the legislative scheme to contest decisions restricting the
scope of an appeal before the SST-AD, other than by an application for judicial
review. Notwithstanding her success on the leave application, the applicant
wants to be able to argue all of the alleged factual errors raised by the
Minister on the appeal including the two which the SST-AD found to not raise a
reasonable chance of success.
[34]
The respondent contends that the application is
premature prior to a final determination on the merits of the appeal.
[35]
Having considered the submissions of the
parties, I would frame the issues as follows:
(1)
Is the scope of the decision to grant leave
subject to judicial review in this Court
(2)
Was the SST-AD’s rejection of two of the
Minister’s arguments for leave reasonable?
V.
ARGUMENTS AND ANALYSIS
A.
Is the scope of the decision to grant leave to
appeal subject to judicial review in this Court?
(1)
Applicant’s Submissions
[36]
The applicant’s position is that the SST-AD’s
decision to refuse leave to appeal on two of the three arguments raised in the
application for leave is final as it is determinative and dispositive of the
rights of the parties: Canada (Attorney General) v O’Keefe, 2016 FC 503,
[2016] FCJ No 796 at para 24 [O’Keefe]. Leave decisions are not subject
to appeal: DESDA, s 68. As a result, the Minister would be prevented from
raising arguments for which leave had not been granted, including the two
alleged factual errors which were not accepted as raising a reasonable basis
for appeal.
[37]
If either party disagrees with the leave
decision, the sole recourse is to seek judicial review in this Court. Once the
SST-AD grants or refuses leave, they are functus officio with respect to
their decision under section 58 of the DESDA and cannot consider the merits of
any other issue raised in the leave application: O’Keefe, above, at
paras 25–26, 31; see also Federal Courts Act, ss 18(1) and 26.
[38]
The applicant submits that an appeal before the
SST-AD is not de novo, and the scope upon which the appeal will be heard
is carved out by the leave decision: O’Keefe, above, at para 28; see
also DESDA, s 58(5). The SST-AD determined which individual arguments have a
reasonable chance of success, and therefore, it finally determined the scope of
the appeal on the merits.
(2)
Respondent’s Submissions
[39]
The respondent disputes the applicant’s argument
that the Appeal Division’s decision on leave to appeal “finally
determines” the scope of the appeal on the merits. The applicant is not
precluded, she submits, from arguing the other two factual issues identified in
its application for leave to appeal as they both fall within the ground on
which leave was granted.
[40]
The respondent relies on subsection 58(3) of the
DESDA to argue that the SST-AD only has the power to “grant
or refuse” leave. If leave is granted, subsection 58(5) of the DESDA
provides that the application for leave becomes the notice of appeal. As such,
the respondent submits, the grounds pleaded on leave become the grounds on
appeal: see Social Security Tribunal Regulations, SOR/2013-60, at para 40(1)(c)
[SSTR].
[41]
The Minister’s application for leave alleged
three instances in which the SST-GD had made erroneous findings of fact. The
respondent contends that the SST-AD has the jurisdiction to consider, and the
Minister is free to argue, all three instances on appeal. Further, the
respondent submits, on an application for leave the SST-AD can only grant or
refuse leave; the legislation does not give the SST-AD authority to limit the
scope of an appeal at the leave stage.
[42]
The SST-AD’s disposition in this case was in the
Minister’s favour. The applicant is not seeking to reverse the grant of leave
to appeal, and therefore, she is not seeking a different disposition. The
respondent submits that the crux of the applicant’s concern is with the reasons
given by the SST-AD in making its decision, not the actual decision itself. There
is no basis to bring an application for judicial review of a tribunal’s
reasons, the respondent submits, unless a party is seeking a different
disposition by the tribunal: GKO Engineering v Canada, 2001 FCA 73,
[2001] FCJ No 369 at paras 2-3 [GKO Engineering]; Rogerville v Canada
(Public Service Commission Appeal Board), 2001 FCA 142, [2001] FCJ No
692 at paras 1, 28 [Rogerville].
[43]
The respondent submits that the Minister has not
exhausted all available and effective recourses in the CPP administrative
process as there is an ongoing appeal process that provides an adequate and
effective forum. The SST-AD is a specialized tribunal with the expertise to
decide issues within the scope of its own appeal jurisdiction and governing
statute. In essence, the respondent submits, the applicant could raise the
issue about scope on appeal, and it would then be for the SST-AD to determine
whether the scope of the appeal can be limited by a leave decision. That
decision would be subject to judicial review before the Federal Court of Appeal
under paragraph 28(1)(g) of the Federal Courts Act.
[44]
The respondent points to at least three other
SST-AD decisions where the Minister has raised the same jurisdictional issue
that she now seeks to litigate in this Court: JR v Minister of Employment
and Social Development, 2015 SSTAD 1461 at paras 14–15 [JR]; PM v
Minister of Employment and Social Development, 2016 SSTADIS 12 at para 16 [PM];
BK v Minister of Employment and Social Development, 2015 SSTAD 761 at
paras 12, 13 [BK].
[45]
The SST-AD has not had as yet the opportunity to
address the issue of whether a leave decision can limit the scope of appeal, the
respondent submits. Accordingly, the Federal Court of Appeal would not have the
benefit of the SST-AD’s findings on the issue should an application for
judicial review be brought from the SST-AD’s determination of the appeal. Such
findings may be “suffused with expertise, legitimate
policy judgments and valuable regulatory expertise”: CB Powell Ltd v
Canada (Border Services Agency), 2010 FCA 61, [2010] FCJ No 274 at para 32
[CB Powell]. Without reasons from the Appeal Division on this issue, the
respondent argues, this Court cannot be properly respectful of procedural
choices made by the administrative decision maker: Income Security Advocacy
Centre v Mette, 2016 FCA 167, [2016] FCJ No 587 at para 5 [Mette].
[46]
The respondent submits that there are no
exceptional circumstances in this case that should allow the applicant to
proceed to the courts when the administrative process has not run its course: CB
Powell, above, at paras 31-32. Thus, the respondent argues, the application
for judicial review is premature.
[47]
Finally, the respondent distinguishes O’Keefe;
a case heavily relied on by the applicant. The respondent notes that in O’Keefe,
above, the applicant was seeking to overturn the granting of leave to Mr.
O’Keefe. The Federal Court concluded that the application was not premature
because the SST-AD has no jurisdiction to review a leave decision: O’Keefe, above,
at paras 1, 16, 26, and 29. In the case at bar, however, the applicant agrees
with the granting of leave, but wishes to challenge the reasons given in making
the decision.
(3)
Analysis
[48]
At first impression, the respondent’s arguments
are attractive. The Minister was successful at the leave stage in that the
request for leave to appeal was allowed, albeit not on all of the arguments raised
by the Minister in challenging the SST-GD’s decision. The Attorney General
seeks a determination from this Court that would maintain the SST-AD’s decision
to grant leave but quash the SST-AD’s decision to not accept the other
arguments presented by the Minister. Thus, it appears that this Court is not
being asked to review the decision to grant leave but rather the reasons on
which it was granted.
[49]
Subsection 58(1) of DESDA provides for three
grounds of appeal from a decision of the General Division:
(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.
[50]
Only the third ground, which is set out in
paragraph 58(1)(c), was raised in the Minister’s Application for Leave to
Appeal and Notice of Appeal. The Minister cited three separate instances where
the SST-GD allegedly based its decision on an erroneous finding of fact made in
a perverse or capricious manner or without regard for the material before it.
Those instances were described in the Application for Leave as follows:
(a)
The SST-GD erred in its determination that all
of the Respondent’s medical conditions were present and limiting as of the MQP;
(b)
The SST-GD erred in its determination that the
Respondent was disabled as per the CPP in the absence of objective medical
evidence at MQP; and
(c)
The SST-GD erred in finding that the Respondent
lacked capacity to work.
[51]
These are distinct allegations of erroneous
findings of fact but they all fall within just one of the grounds of appeal
recognized by the statute. As such, it cannot truly be said that the Minister
raised three separate grounds of appeal, as the applicant argues. Strictly
speaking, the Minister raised only one of the three grounds of appeal permitted
under the statute, but argued that there were three instances of how that
ground was satisfied by the alleged errors committed by the General Division. The
Appeal Division agreed with just one of the three. As such, I am inclined to
agree with the respondent that the Attorney General is seeking judicial review
of the SST-AD’s reasons, not its disposition.
[52]
I agree with the respondent that the issue of
whether or not the scope of the appeal will be limited is a procedural matter
that falls within the expertise of the tribunal. However, subsection 58(3) provides
that the Appeal Division “must either grant or refuse
leave to appeal.” It does not on its face allow the Appeal Division to
restrict the scope of the appeal if leave is granted. The language of the
statute provides for only one result without qualification.
[53]
In PM, above, the SST-AD had to decide
whether the appeal on the merits was limited to the grounds of appeal that had previously
been found to have a reasonable chance of success. Ultimately, the SST-AD
considered each ground of appeal raised. The appeal in that case was not
restricted to the grounds that were found at the leave stage to have a
reasonable chance of success: PM, above, at para 16.
[54]
I note in passing that the language used by the
SST-AD in this case to address the two other issues could be interpreted as
limiting the scope of the appeal on the merits. The Member referred to the
other two issues as “grounds” and found that
those two grounds did not have a reasonable chance of success. Similar language
is found in other SST-AD decisions relied upon by the parties, such as: J.M.
v Minister of Employment and Social Development, 2016 SSTADIS 474; S.F.
v Canada Employment Insurance Commission, 2017 SSTADEI 1; G.S. v
Minister of Employment and Social Development, 2016 SSTADIS 400. In my
view, this usage is imprecise; to refer to all sub-issues or instances of error
raised as “grounds” is problematic as it obscures
a reviewing court’s task on judicial review.
[55]
The language of the statute is clear that there
are only three grounds of appeal and that appeal is either granted or refused. As
such, since the Attorney General is not seeking a different disposition from
this Court, the applicant has no basis upon which to bring a judicial review
application prior to the completion of the appeal proceedings: GKO
Engineering, above, at para 3.
[56]
I agree with the respondent that this
application is premature. At the conclusion of its decision, the SST-AD invited
the parties to provide submissions on whether a further hearing is required
and, if so, what type of hearing is appropriate. In doing so, the Member was likely
guided by paragraph 43 (b) of the SSTR, which provides that:
43 After
every party has filed a notice that they have no submissions to file—or at the
end of the period set out in section 42, whichever comes first—the Appeal
Division must without delay
(a) make a decision on the appeal; or
(b) if it determines that further hearing is
required, send a notice of hearing to the parties.
[57]
Notably, neither party made further submissions or
requested a further hearing.
[58]
The respondent submits that the legislation does
not give the SST-AD authority to limit the scope of an appeal. I note that there
is no express authority under the DESDA to limit the scope of the appeal; however,
there is also nothing in the statute to suggest that the SST-AD would be
prohibited from doing so either. In any case, I agree with the respondent that
the SST-AD is a specialized tribunal with the expertise to interpret the scope
of its own appeal jurisdiction and governing statute.
[59]
At the hearing, the applicant referred to a
recent case of the SST-AD where the Federal Court of Appeal’s decision in Mette
was applied by the same Member, Neil Nawaz, who decided Ms. Tsagbey’s case.
The applicant filed this decision with the Court, at my request, following the
hearing: L.G.C. v Minister of Employment and Social Development, AD-16-830
(March 7, 2017) [L.G.C.].
[60]
In that case, the SST-AD was asked to address, “to what extent does the Appeal Division have jurisdiction to
restrict grounds of appeal at leave?” In answering this question, Member
Nawaz distinguished Mette, above, and found that he remained within the
parameters of section 58(1) of the DESDA when he specifically restricted the “grounds” at the leave to appeal stage.
[61]
In L.G.C., therefore, the SST-AD was
given an opportunity to consider the issue and interpret its home statute. If
the appellant in that case were to seek a judicial review of the decision, the
Federal Court of Appeal would be in a position to consider the SST-AD’s
reasoning and interpretation of the DESDA to determine the reasonableness of
its decision.
[62]
I refer to L.G.C. to reiterate the point
that the administrative process should be given an opportunity to run its
course before an application for judicial review is brought. In the case at
bar, the applicant is not prevented from raising this issue directly on appeal,
even as a preliminary question, and give the Appeal Member an opportunity to
address it.
[63]
As a result, I would dismiss the application for
judicial review and leave it to the SST-AD to complete its process. Any
decision that it may reach on the merits of the appeal would be subject to
judicial review before the Federal Court of Appeal under paragraph 28(1)(g) of
the Federal Courts Act, including the rulings on the scope of the
appeal. The Court of Appeal would be in a better position to address this
matter as it would have the benefit of reviewing the SST-AD’s complete
reasoning on the issue.
[64]
In the event that I am found to have erred in
these conclusions, I will set out my views on the reasonableness of the
SST-AD’s findings on the other arguments for leave.
B.
Was the SST-AD’s rejection of two of the
Minister’s arguments for leave reasonable?
[65]
The parties agree and I concur that the standard
of review applicable when reviewing a decision of the SST-AD to grant or deny
leave to appeal is reasonableness: Tracey v Canada (Attorney General), 2015
FC 1300, [2015] FCJ No 1410 at paras 17–23; Canada (Attorney General) v
Hines, 2016 FC 112, [2016] FCJ No 84 at para 28; see also Canada
(Attorney General) v Hoffman, 2015 FC 1348, [2015] FCJ No 1511 at paras 26–27;
Bergerson v Canada, 2016 FC 220 at para 6.
[66]
Reasonableness is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process, as well as whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] SCJ No 9 at paras 47–49.
(1)
Applicant’s Submissions
[67]
The applicant submits that an arguable case was
raised that the SST-GD erred in finding that Ms. Tsagbey’s left wrist and right
shoulder conditions were disabling at her MQP, in the absence of objective
medical evidence to that effect. The applicant argues that the SST-AD
mischaracterized this ground as a request to reweigh the evidence.
[68]
In essence, the applicant submits that Ms.
Tsagbey failed to adduce objective medical evidence to support her claim for a
disability pension contrary to the established jurisprudence requiring such
evidence: Warren v Canada (Attorney General), 2008 FCA 377, [2008]
FCJ No 1802 at para4 [Warren]; Villani, above, at para 50; Belo-Alves
v Canada (Attorney General), 2014 FC 1100, [2014] FCJ No 1187 at
para 94. The applicant further submits that a disability determination cannot be
based solely on the subjective evidence of the claimant and that a claimant’s
suffering is not an element on which the test of disability rests: Canada
(Minister of Human Resources Development) v Angheloni, 2003 FCA 140, [2003]
FCJ No 473 at para 27 [Angheloni].
[69]
The applicant points to specific pieces of
medical evidence that were assessed by the SST-GD to argue that the objective
medical evidence in the record was not sufficient to establish severe and
prolonged disability based on the left wrist and shoulder pain prior to the MQP
date of December 31, 2009.
[70]
The SST-GD found that “if
[Ms. Tsagbey’s] disabling conditions were only the limitations arising from her
left wrist injury the Tribunal would agree with the [Minister] that her
limitations and restrictions do not preclude all forms of gainful employment”.
It is the applicant’s position that, although the respondent’s left wrist and
shoulder pain may have been limiting at the time of the MQP, these conditions
were far from amounting to a finding of “severity”
under the CPP. As such, the applicant submits that the SST-AD erred in denying
leave respecting this finding on the basis that the SST-GD was entitled to make
its own analysis on the evidence.
[71]
With respect to Ms. Tsagbey’s capacity to work,
the applicant submits that the record establishes that she retained the
capacity for lighter work within her restrictions. The applicant argues that
the SST-AD mischaracterized this argument as a request to reweigh the evidence.
[72]
In dismissing this issue, the Appeal Division
found that the SST-GD made a brief but good-faith assessment of all aspects of
the respondent’s functionality at paragraphs 54, 55 and 58 of its decision. The
applicant submits that a review of those three paragraphs suggests that the SST-GD
failed to properly apply the legal test for disability.
[73]
The applicant further argues the respondent was
found by various professionals to have the capacity to work at a sedentary
level at the time of her MQP. Therefore, the applicant submits that the SST-GD
made erroneous findings of fact made in a perverse or capricious manner or
without regard to the material before it.
[74]
Moreover, the applicant contends that the SST-GD
concluded that Ms. Tsagbey lacked the capacity to pursue any form of gainful
employment on a regular and consistent basis by relying on her oral evidence as
well as her “multiple disabling conditions”.
However, the SST-AD found that there was no independent confirmation of Ms.
Tsagbey’s multiple conditions being problematic as of her MQP. As such, it was
unreasonable for the SST-AD to deny the Minister leave on this ground when the
SST-GD’s finding regarding Ms. Tsagbey’s lack of capacity was, in part, based
on her secondary medical conditions.
[75]
The applicant submits that the evidence suggests
that at the time of her MQP, Ms. Tsagbey was capable of pursuing substantially
gainful occupation. Therefore, this issue also had a reasonable chance of
success on appeal, and the SST-AD committed an error in law by denying leave on
this ground.
(2)
Respondent’s Submissions
[76]
The respondent submits that the SST-AD did not
fail to consider the factor of objective evidence. Rather, the SST-AD was
satisfied that there was “some objective evidence”
of the respondent’s disability as required by Warren, above, at
paragraph 4. The SST-AD was further satisfied that there was such evidence
before the SST-GD, which it considered and discussed at length.
[77]
The respondent further argues that the SST-AD
properly relied on the Federal Court of Appeal’s decision in Simpson, above,
when it found that the SST-GD had acted within its role as the trier of fact
when it assessed and assigned respective weight to the medical evidence: Simpson,
above, at para 10. In essence, the respondent argues, it was reasonable for
the SST-AD to find that the Minister was seeking to have the evidence reweighed.
Notably, this Court has found that the possibility that the evidence might be
reassessed in the applicant’s favour does not give rise to an arguable case or
a reasonable chance of success sufficient to grant leave to appeal: Bellefeuille
v Canada, 2014 FC 963, [2014] FCJ No 1080 at paras 9 and 31.
[78]
With respect to her capacity to work, the
respondent submits that the SST-AD found that the SST-GD provided a full
inventory of the evidence and an assessment of all aspects of the respondent’s
functionality, both for and against the respondent’s claim. The respondent
pointed to several pieces of evidence which indicate that she made multiple
efforts to return to work but lacked work capacity.
(3)
Analysis
[79]
There is ample objective medical evidence in the
record which establishes that Ms. Tsagbey suffered a serious injury to her left
wrist in January 2007, and that her condition was present at the time of her
MQP, December 31, 2009. In at least one pre-MQP report from Susan Cowling,
Physiotherapist and Return To Work Co-ordinator, Ms. Tsagbey’s left wrist
injury is described as a “chronic issue”. In a
post-MQP report, Susan Leitch, Occupational Therapist, noted that due to the
osteoarthritic changes, Ms. Tsagbey’s wrist injury is “expected
to be an ongoing limitation”.
[80]
Notwithstanding this evidence, with respect to
the wrist injury and right shoulder pain alone, the objective medical evidence
was that Ms. Tsagbey’s condition was limiting, but not disabling to the extent that
she would be incapable of performing sedentary level work. I have some
difficulty understanding how one of the examples of such work provided, such as
dry cleaning or a store clerk, can be described as “sedentary”.
In any event, even though the subjective suffering of the respondent is well documented
in the record, it is not an element on which the test of “disability” rests: Angheloni, above, at para
27.
[81]
The SST-GD specifically noted that if Ms.
Tsagbey’s disabling conditions were only the limitations arising from her left
wrist injury, then the Tribunal would agree with the Minister that her
limitations and restrictions do not preclude all forms of gainful employment.
In other words, but for the secondary medical conditions, the SST-GD would have
found that Ms. Tsagbey did not lack the capacity to pursue any form of gainful
employment on a regular and consistent basis.
[82]
The Appeal Division found pre-MQP objective
evidence relating to Ms. Tsagbey’s left wrist and right shoulder, including
imaging reports, orthopedic assessments and functional assessment evaluations,
which would seem to establish a severe and prolonged disability under the CPP. In
my view, it was within the range of reasonable outcomes for the SST-AD to find
that the Minister did not have a reasonable chance of success on this issue.
[83]
With respect to Ms. Tsagbey’s capacity to work
in a sedentary occupation, I agree with the respondent that the applicant is
merely seeking to re-argue this issue through a re-weighing of the evidence.
[84]
The jurisprudence has consistently held that an
applicant must not only adduce medical evidence in support of her claim that
her disability is “severe” and “prolonged”, but also evidence of her efforts to
obtain work and to manage her medical condition: Klabouch v Canada (Minister
of Social Development), 2008 FCA 33, [2008] FCJ No 106 at para 16 [Klabouch];
see also Villani, above, at para 50; Inclima, above, at para 3.
[85]
It is clear from the record that Ms. Tsagbey has
made significant efforts at obtaining and maintaining employment but was
unsuccessful by reason of her health condition. She attempted to return to work
on modified duties, but for over a year, her employer was unable to place her
in any job suitable to her limitations.
[86]
Moreover, Ms. Tsagbey completed several programs
to upgrade her skills and return to work, including the WSIB rehabilitation
program, the LMR and VRS programs. She also completed a WSIB work placement for
a Customer Service Clerk. The evidence also shows that Ms. Tsagbey was regarded
as hardworking and dedicated when participating in such programs. However, a
pre-MQP psycho-vocational assessment prepared by Dr. De Araujo noted that the
respondent achieved low scores in her intellectual capacity and below-average
scores in all tested aptitudes. In the circumstances, it would seem that the
assessment that she could be gainfully employed in a sedentary capacity was
unduly optimistic.
[87]
The applicant takes issue with the fact that
some of the relevant evidence on Ms. Tsagbey’s capacity to work post-dates the
MQP of December 31, 2009. However, in my view, the post-dated evidence
demonstrates the continuing effect of her health condition on her ability to
find and maintain any substantially gainful employment.
[88]
The SST-AD explicitly considered the principle
that it is not the diagnosis, but the capacity to work, that determines the
severity of a claimed disability under the CPP: Klabouch, above, at para
14. The SST-AD noted that its review of the SST-GD’s analysis of the medical
reports and functional assessments show no indication that the General Division
ignored this principle. In fact, the SST-AD was satisfied that the SST-GD
considered the evidence both for and against Ms. Tsagbey’s claim, and assigned
the evidence the appropriate weight.
[89]
I see no reason to interfere with the SST-AD’s
finding on this issue as it falls within the range of reasonable outcomes.
[90]
In the result, therefore, I would find that the
Appeal Division’s determination of the other two factual issues raised by the
Minister was reasonable. As no costs were requested by the respondent, none
will be awarded.
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