Docket: T-1157-16
Citation:
2017 FC 259
Ottawa, Ontario, March 6, 2017
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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CAROL INGRAM
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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.
Introduction
[1]
Carol Ingram has brought an application for
judicial review under s 18.1 of the Federal Courts Act, RSC 1985, c F-7
of a decision of the Appeal Division of the Social Security Tribunal dated June
13, 2016. The Appeal Division denied her application for leave to appeal a
decision of the Tribunal’s General Division. The General Division denied Ms.
Ingram’s application for a disability pension under the Canada Pension Plan
[CPP].
[2]
For the reasons that follow, I have concluded
that the Appeal’s Division’s dismissal of Ms. Ingram’s application for leave to
appeal was unreasonable. The application for judicial review is therefore
allowed.
II.
Background
[3]
Ms. Ingram applied for a disability pension in
January 2012. The application was denied on July 19, 2012. Her application for
reconsideration was denied on December 6, 2012. She appealed to the General
Division of the Social Security Tribunal. Her appeal was heard by the General
Division on September 8, 2015, and dismissed on October 29, 2015.
[4]
The General Division found that the date for Ms.
Ingram’s minimum qualifying period [MQP] was December 31, 2011. After the
hearing, the General Division asked Ms. Ingram to provide an updated Record of
Earnings, together with any submissions she wished to make. The information she
provided confirmed that Ms. Ingram had earnings and CPP contributions for the
years 2013 and 2014, but no earnings in the years 2010, 2011 or 2012. The
General Division maintained the initial MQP, but noted that two years of valid
earnings would now have to be taken into account.
[5]
The General Division found that, if Ms. Ingram
had been assessed as of the date of her MQP, there would be “little doubt” that she had a severe disability in
2008, and that she met the requirements for contributory eligibility. However,
the General Division continued:
Her return to work was a result of
determined perseverance, medical treatment and mitigation strategies, under
painful conditions. She “needed the money” and was prepared to ignore and “work
through” her pain and the advice of her family doctor who advised her to not
work, steel herself up and punish herself with the pain she had described as
the recovery reward for her persistence. The Tribunal therefore must decide if
this unusually long period of a “back-to-work attempt” was successful and
whether or not the earnings of 2012 through 2014 were gainful.
[6]
The General Division concluded:
[53] It is the Tribunal's view that the
Appellant's personal characteristics actually work to her advantage in terms of
her being employable in the real world which has been demonstrated. She has
transferable skills. As a result, the scope of substantially gainful
occupations is much broader for the Appellant than would be the case for a much
older, less educated Appellant, with limited English or French language skills.
[54] To establish severe disability,
Appellants must not only show a serious health problem, but where there is
evidence of work capacity after the MQP, (which the Tribunal finds in this
case), must also show an effort at obtaining and maintaining employment has
been unsuccessful by reason of the health condition. (as per Inclima v. The
Attorney General of Canada, [2003 FCA 117]). Her gainful work from 2013
into 2015 has demonstrated this capacity. Accordingly, the Tribunal cannot find
that her medical conditions amount to a level of severity that meet the CPP
disability test.
[7]
The General Division found that the test for
severity had not been met, and it was therefore unnecessary to consider whether
the disability was also prolonged. The General Division dismissed the appeal,
and Ms. Ingram sought leave from the Appeal Division to appeal that decision.
III.
Decision under Review
[8]
The Appeal Division denied Ms. Ingram’s
application for leave to appeal on June 13, 2016, concluding that her appeal
had no reasonable chance of success. The Appeal Division acknowledged that the
General Division had placed significant emphasis on Ms. Ingram’s earnings in
2013 to 2015 in determining whether she was capable of pursuing substantially
gainful employment. Nevertheless, the Appeal Division was satisfied that the
General Division had turned its mind to other factors. The Appeal Division
concluded as follows:
Given that the General Division did not
focus exclusively on the Applicant’s earnings and considered other factors in
assessing the severity of her disability, I am not satisfied that the appeal
has a reasonable chance of success.
IV.
Issue
[9]
The sole issued raised by this application for
judicial review is whether the Appeal Division’s decision to refuse leave to
appeal was reasonable.
V.
Analysis
[10]
Decisions of the Appeal Division of the Social
Security Tribunal on applications for leave to appeal involve questions of
mixed fact and law, and are subject to review by this Court against the
standard of reasonableness (Tracey v Canada (Attorney General), 2015 FC
1300 at para 17 [Tracey]; Jama v Canada (Attorney General), 2016
FC 1290 at paras 12-15). The Court will intervene only if the decision falls
outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47).
[11]
Pursuant to s 44(1)(b) of the Canada Pension
Plan, RSC 1985, c C-8, a disability pension is paid to a disabled person
who (i) is under sixty-five years of age; (ii) does not receive a retirement
pension; and (iii) has made valid contributions to the CPP for at least the
MQP. A person is considered to be disabled if the person is determined to have
a severe and prolonged mental or physical disability (CPP, s 42(2)). A
disability is severe if a person is incapable of regularly pursuing any
substantially gainful occupation (CPP, s 42(2)(a)(i)). Prior to reforms that
were introduced in 2014, the test consistently applied was whether an applicant
had “any disability which renders an applicant
incapable of pursuing with consistent frequency any truly remunerative
occupation” in a “real world” context (Villani
v Canada (Attorney General), 2001 FCA 248 at para 38).
[12]
Appeals from the General Division of the Social
Security Tribunal to the Appeal Division are governed by the Department of
Employment and Social Development Act, SC 2005, c 34 [DESDA]. An appeal to
the Appeal Division may be made only where the General Division: (a) failed to
observe a principle of natural justice or otherwise acted beyond or refused to
exercise its jurisdiction; (b) erred in law in making its decision, whether or
not the error appears on the face of the record; or (c) 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 (DESDA, s 58(1); Canada (Attorney
General) v O'keefe, 2016 FC 503 at para 29). Leave to appeal will be
refused where the Appeal Division is satisfied the appeal has “no reasonable chance of success” (DESDA, s 58(2)).
[13]
Ms. Ingram argues that the Appeal Division
unreasonably concluded that the General Division applied the correct legal test
in finding that she was not disabled. She says the General Division failed to
weigh all of the evidence in assessing the severity of her disability. In
particular, she says that the General Division focused unduly on her post-MQP
earnings and her ability to complete tasks at work, and gave insufficient consideration
to the evidence of her medical condition.
[14]
The Respondent defends the Appeal Division’s
decision as reasonable, and says that it properly applied the test to determine
the existence of a “reasonable chance of success”
(citing Tracey; Canada (Human Resources Development) v Hogervorst,
2007 FCA 41; Fancy v Canada (Attorney General), 2010 FCA 63 [Fancy]).
The Respondent maintains that the Appeal Division considered the legal and
factual issues presented by Ms. Ingram, and provided a reasonable explanation
for its conclusion that the General Division did not rely exclusively on Ms.
Ingram’s earnings for the years 2013, 2014 and 2015, but also considered the “constellation” of medical issues bearing on her
application.
[15]
The General Division accepted that Ms. Ingram
met the test of severe disability in 2008, that she had no earnings in the
years 2010, 2011 or 2012, and only modest earnings in the years 2013 and 2014.
The General Division also accepted that she achieved these modest earnings
despite “punishing” herself by working through
considerable pain, and against the advice of her family doctor. The General
Division also appears to have accepted that Ms. Ingram’s medical condition
would not improve. It is difficult to reconcile these findings with the General
Division’s ultimate conclusion that Ms. Ingram’s application should be denied
because her disability was not sufficiently severe.
[16]
The threshold for granting leave to appeal a
decision of the General Division is low: “no reasonable
chance of success”. This has been interpreted to mean that an appellant
must demonstrate an “arguable case” (Fancy at
para 4). In light of the internal inconsistencies of the General Division’s
decision, and its apparent assumption that Ms. Ingram should continue to ignore
the advice of her physician and maintain her employment despite debilitating
pain, I find that the Appeal’s Division’s conclusion that she did not have an
arguable appeal was unreasonable.
[17]
The application for judicial review is therefore
allowed, and the matter is remitted to a differently-constituted panel of the
Appeal Division for reconsideration.
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