Docket: T-1510-15
Citation:
2017 FC 363
Ottawa, Ontario, April 12, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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EDWARD GLOVER
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Mr. Glover, the applicant, applied for a
disability pension under the Canada Pension Plan, RSC 1985, c C-8 [CPP].
His application was denied and the denial was upheld on reconsideration. Mr.
Glover appealed the negative decision to the Social Security Tribunal-General Division
[SST-GD]. The SST-GD found that Mr. Glover had failed to establish that he
suffered from a severe disability as defined in the CPP.
[2]
Mr. Glover sought leave to appeal this decision
to the Social Security Tribunal-Appeal Division [SST-AD]. Leave was denied. It
is that decision that is now before the Court for judicial review. Mr. Glover
submits that the SST-AD erred in failing to consider new evidence that
demonstrated he suffered from a severe and prolonged disability. He further
submits that the process before both the SST-GD and the SST-AD was procedurally
unfair due to the ineffective assistance of his representative.
[3]
The Department of Employment and Social
Development Act, SC 2005, c 34 [DESDA] identifies the grounds of appeal
from an SST-GD decision and provides that the SST-AD shall refuse to grant
leave where it is satisfied the appeal has no reasonable chance of success. In
this case I am unable to conclude that the SST-AD decision to deny leave to
appeal the negative SST-GD decision was unreasonable or that the process was
procedurally unfair. The application for judicial review is denied for the
reasons that follow.
II.
Background
A.
General
[4]
Mr. Glover worked in the construction and
masonry industry for many years and had owned his own masonry company. In 2008
he was involved in motor vehicle accident. As a result of that accident he
states he is no longer able to work due to generalized musculoskeletal pain,
whiplash and abnormal discs in the cervical spine.
[5]
Subsequent to the accident Mr. Glover’s company
continued to operate. He provided some administrative and advisory services to
the company until it went bankrupt in 2011. He also performed some work in 2012
but has not looked for any employment since on the basis that there were no
other jobs he could feasibly do in the masonry trade due to his physical
limitations.
[6]
Mr. Glover’s denial of disability benefits was
appealed to the Office of the Commissioner of Review Tribunals. However,
pursuant to section 257 of the Jobs, Growth and Long-Term Prosperity Act,
SC 2012, c 19, the matter was transferred to the SST-GD in April, 2013.
B.
SST-GD Decision
[7]
In its decision, the SST-GD identifies the
requirements to qualify for a disability pension as set out at subparagraph
44(1)(b) of the CPP: (1) be under 65 years of age; (2) not be in receipt of the
CPP retirement pension; (3) be disabled; and (4) have made valid contributions
to the CPP for not less than the Minimum Qualifying Period [MQP]. The SST-GD
noted that an applicant will only be considered disabled where they establish:
(1) they suffer from a severe and prolonged mental or physical disability as
set out at subparagraph 42(2)(a) of the CPP; and (2) they suffered from that
severe and prolonged disability on or before the end of the MQP date.
[8]
The SST-GD determined Mr. Glover’s MQP date to
be December 31, 2014 and that it was required to determine if it was more
likely than not that Mr. Glover had a severe and prolonged disability on or
before the MQP date.
[9]
After reviewing the evidence including the medical
reports placed before it, the SST-GD, undertook an analysis of whether Mr.
Glover had established he suffered from a severe and prolonged disability. The
SST-GD noted that the “severe” criterion must be assessed in a real-world
context (Villani v Canada (Attorney General), 2001 FCA 248 at para 39).
In considering this criterion the SST-GD noted Mr. Glover’s age, his level of
education, and ability to communicate in English. The SST-GD also considered
the experience he had gained working in the masonry business and noted that
having owned his own business for 13 years he would have obtained
administrative and supervisory experience leading a team of employees. At
paragraph 33 of its decision, the SST-GD concluded that Mr. Glover possessed
transferable skills and would be a “candidate for
suitable re-training for a more sedentary role working within his functional
limitations.”
[10]
Having concluded that Mr. Glover possessed
transferrable skills, the SST-GD addressed his capacity to work. It did not
question that Mr. Glover had sustained injuries following his motor vehicle
accident, but found that he had continued to work in his business in a modified
role until 2011 and as an estimator for several months in 2012. The SST-GD
found his work as an estimator only ceased because he was not contacted for
further work. It noted the absence of updated medical reports after 2011
indicating any incapacity or a decline in Mr. Glover’s health. The SST-GD
concluded that Mr. Glover had not demonstrated that he suffered a “severe” disability and that it was therefore
unnecessary to make a finding on the “prolonged”
criterion.
C.
SST-AD Leave to Appeal Decision
[11]
The SST-AD noted that Mr. Glover’s counsel
submitted that the SST-GD had erred by drawing an incorrect conclusion from the
evidence and had based its decision on an erroneous finding of fact. It noted
that pursuant to subsection 58(3) of the DESDA that it must either grant or
refuse leave to appeal, and that leave is to be refused if the SST-AD is
satisfied the appeal has no reasonable chance of success (subsection 58(2)).
The SST-AD noted that a reasonable chance of success equates to an arguable
case. It then considered whether the appeal had a reasonable chance of success.
[12]
The SST-AD addressed the arguments advanced in support
of the position that the SST-GD had erred. However it found that the SST-GD had
considered Mr. Glover’s post-accident work history and the medical and other
reports that had been placed in evidence. The SST-AD held that the SST-GD’s
conclusions were based on a considered analysis of the facts and that Mr.
Glover’s counsel was simply inviting the SST-AD to reweigh the evidence. On
this basis it concluded the appeal had no reasonable chance of success.
III.
Legislation
[13]
Relevant portions of the CPP and DESDA are
reproduced at Appendix A for ease of reference.
IV.
Issues
[14]
The applicant raises the following issues:
A.
The SST-AD failed to consider all of the
relevant evidence relating to the applicant’s medical condition rendering the
process unfair and the decision not to grant leave unreasonable; and
B.
The applicant was ineffectively represented
before the SST-GD and SST-AD.
V.
Standard of Review
[15]
The parties agree and the jurisprudence
establishes that a decision of the SST-AD denying leave to appeal is to be
reviewed against a reasonableness standard (Canada (Attorney General) v
Hines, 2016 FC 112 at para 28, citing Tracey v Canada (Attorney General),
2015 FC 1300 at para 17 [Tracey]).
[16]
When considering whether there was a procedural
fairness breach arising out of the allegations of incompetent or negligent
representation of counsel the correctness standard of review applies (Galyas
v Canada (Minister of Citizenship and Immigration), 2013 FC 250 at para
27).
VI.
Analysis
A.
Consideration of the Evidence
[17]
Mr. Glover argues that the evidence before the
SST-GD was incomplete, something the SST-GD noted in its decision. Mr. Glover’s
counsel argued in oral submissions that the SST-GD was seeking and should have
allowed Mr. Glover to obtain additional evidence before it rendered its negative
decision. He also argues that the SST-AD having been provided with updated
information relating to his medical condition had an obligation to consider
that evidence in rendering the leave to appeal decision. Mr. Glover submits
that in the circumstances there was a breach of procedural fairness and the
decision is unreasonable. I disagree.
[18]
Contrary to the submissions made by Mr. Glover’s
counsel, the SST-GD did not request or seek out further information. Instead
the SST-GD noted at paragraph 40 of its decision that “[t]here
have been no updated medical reports submitted beyond 2011 to suggest any
ongoing incapacity to work or a decline in the Appellant’s health condition”.
It is trite law that Mr. Glover had the burden of establishing his claim before
the SST-GD and demonstrating to the SST-AD that his appeal possessed a
reasonable chance of success (Tracey at para 31). The SST-GD had no duty
to request further information or advance Mr. Glover’s case on his behalf.
Indeed, the SST-AD noted at paragraph 9 of its decision that the SST-GD “considered the medical and other reports that were before
him”. The implication being that the SST-AD was satisfied that the
SST-GD had not indicated additional evidence was preferred but rather
considered the evidence placed before it.
[19]
With respect to the attempt to place new
evidence before the SST-AD as part of the application for leave, this was
addressed by Justice Michael Manson in Canada (Attorney General) v O’Keefe,
2016 FC 503 at paragraph 28 [O’Keefe], where he states:
[28] Moreover, the legislative scheme
governing the SST-AD is distinguishable from the former PAB scheme and the
cases decided under it which viewed such decisions as interlocutory. Under
sections 55 to 58 of the DESDA, the test for obtaining leave to appeal
and the nature of the appeal has changed. Unlike an appeal before the former
PAB, which was de novo, an appeal to the SST-AD does not allow for new
evidence and is limited to the three grounds of appeal listed in section 58.
Also, under subsection 58(5), once leave is granted, the application for leave
becomes the notice of appeal. Further, the SST-AD’s leave decision demarcates
the issues on appeal that have a reasonable chance of success (Belo-Alves v
Canada (Attorney General), 2014 FC 1100 at paras 71-73).
[20]
I adopt and endorse the reasoning of Justice
Manson in O’Keefe. In doing so I note that the DESDA does make
provision, at section 66, for the SST-GD to rescind or amend a decision where
new evidence is presented by way of application. There is no indication on the
record that Mr. Glover sought to do so. Indeed, in submissions to the SST-AD
for leave to appeal, counsel for the applicant wrote “this
is not a new fact application”.
[21]
I am satisfied that the SST-AD did not err in
refusing to consider new evidence advanced in support of the application for
leave. There was no breach of procedural fairness.
[22]
With respect to the reasonableness of the SST-AD
decision, the SST-AD accurately identified the issue raised and the requirement
for Mr. Glover to demonstrate “…some arguable ground
upon which the proposed appeal might succeed”. The SST-AD noted the
grounds of appeal but found the SST-GD had considered Mr. Glover’s medical
evidence and the evidence relating to his post-accident work record. The SST-AD
found the arguments in support of the appeal repeated the submissions made
before the SST-GD and that the generalised allegations of error were nothing
more than an effort to have the SST-AD reweigh the evidence.
[23]
In reaching these conclusions the SST-AD
addressed the issues raised by Mr. Glover, explained the reasons for finding
the proposed appeal did not disclose a reasonable chance of success and
rendered its decision. The decision is within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law and is justified,
transparent and intelligible (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
B.
Inadequate representation
[24]
Mr. Glover argues that he was inadequately
represented before the SST-GD and SST-AD and as a result relevant medical
evidence was not placed before the decision-makers. However Mr. Glover provides
little evidence in support of the allegation of inadequate representation.
[25]
In the criminal context the issue of ineffective
assistance of counsel was addressed by the Supreme Court of Canada in R v
GDB, 2000 SCC 22 [GDB]. To succeed an applicant must establish that
counsel’s acts or omissions: (1) constituted incompetence; and (2) that an
injustice resulted, in other words the result would have been different (GDB
at para 26).
[26]
The burden is on the applicant to establish the
performance and the prejudice components of the test. The analysis proceeds
from a strong presumption that counsel’s conduct fell within the range of
reasonable professional assistance (GDB at para 27). In Hallatt v
Canada, 2004 FCA 104 at para 21 the Federal Court of Appeal recognized that
GDB was a criminal case and stated:
[21] […] this must be taken into account … [i]n
civil disputes where an individual’s constitutionally protected rights are not
at stake, concerns about the propriety of counsel’s trial strategy and conduct
and their competence to make tactical decisions can usually be adequately
addressed through a claim for damages and negligence against the solicitor, or
a complaint to the governing law society.
[27]
In this case the bare allegation of ineffective
counsel is only supported by evidence of a complaint to the Law Society of
Upper Canada. The document simply states “The Paralegal
failed on multiple occasions to have material available for the General
Division decision, and for the Leave Appeal decision”. The complaint
effectively repeats the allegation of incompetence but provides no evidence in
support of the allegation.
[28]
Recognizing the strong presumption in favour of
adequate representation and the requirement to establish actual prejudice, Mr.
Glover has failed to demonstrate any basis justifying the Court’s intervention.
VII.
Conclusion
[29]
The evidence established that Mr. Glover
suffered injuries in the 2008 motor vehicle accident and the injuries impacted
his work capacity in a physically demanding occupation. However the SST-GD
reasonably concluded that Mr. Glover possessed transferable work skills, he
retained a capacity to work, had continued to work until 2012 in a modified
role and ceased work at that time when he was not offered subsequent work. In
light of these facts it was not unreasonable for the SST-AD to conclude that
there was no reasonable chance of success on appeal. Similarly the bald
allegation of ineffective assistance of counsel cannot succeed. While I am
sympathetic to Mr. Glover’s medical circumstances, the application is
dismissed.
[30]
The respondent did not seek costs and none will
be awarded.
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