Date: 20170411

Docket: T-1043-16

Citation: 2017 FC 356

Ottawa, Ontario, April 11, 2017

PRESENT:    The Honourable Mr. Justice Mosley

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

JOYCE TSAGBEY

Respondent

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.

 

JUDGMENT

THIS COURT’S JUDGMENT is that the application is dismissed. No costs are awarded.

“Richard G. Mosley”

 

ANNEX A

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	t-1043-16
STYLE OF CAUSE:	THE ATTORNEY GENERAL OF CANADA V JOYCE TSAGBEY
PLACE OF HEARING:	Toronto, Ontario
DATE OF HEARING:	MARCH 7, 2017
JUDGMENT AND Reasons:	MOSLEY, J.
DATED:	April 11, 2017

APPEARANCES:

Vanessa Luna	For The Applicant
Marie Chen Teri Muszak	For The Respondent

SOLICITORS OF RECORD:

William F. Pentney Deputy Attorney General of Canada Toronto, Ontario	For The Applicant
Marie Chen Barrister & Solicitor Income Security Advocacy Centre Toronto, Ontario	For The Respondent
Teri Muszak Barrister & Solicitor Mississauga Community Legal Services Mississauga, Ontario	FOR THE RESPONDENT