Date: 20170503
Docket: T-2069-15
Citation: 2017 FC 439
Ottawa, Ontario, May 3, 2017
PRESENT: The Honourable Mr. Justice Gleeson
| BETWEEN:
|
| ZAKI HIDEQ
|
| Applicant
|
| and
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| ATTORNEY GENERAL OF CANADA
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| Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant, Mr. Hideq arrived in Canada from Lebanon in 1993 and was employed here between 1994 and 1998 in a variety of positions. In 1998 he began work as a door person and then in 2000 as a valet at “Casino Windsor”
.
[2]
In 2000, he was involved in a car accident at the Casino Windsor underground parking garage. As a result of the accident he indicated he suffered from neck, back and foot pain. Due to functional limitations relating to the injuries suffered he was subsequently assigned to the Casino Windsor security department until he was laid off in 2004. He was involved in a second car accident in 2005 where he suffered a variety of injuries including to his shoulder, neck and back.
[3]
He applied for CPP disability benefits in October 2010. The application was denied both initially and upon reconsideration. He appealed the negative decisions. The Social Security Tribunal General Division General [SST-GD] dismissed the appeal. He was subsequently denied leave to appeal the negative SST-GD decision to the Social Security Tribunal – Appeal Division [SST-AD]. It is that decision that is before the Court for judicial review.
[4]
Mr. Hideq is seeking an Order from this Court reversing the SST-AD decision and directing the payment of CPP disability benefits retroactive to the onset of his initial application. The respondent takes issue with the remedy being sought, arguing that if the application is granted the appropriate remedy would be to remit that matter back to the SST-AD for re-determination of the leave to appeal question.
[5]
Mr. Hideq’s written submissions focus on alleged errors in the SST-GD decision. However, as noted above the decision before this Court is that of the SST-AD denying Mr. Hideq leave to appeal. The SST-GD decision has been considered in the process of assessing whether the SST-AD committed a reviewable error or rendered an unreasonable decision.
[6]
Section 58 of 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. Having considered the party’s written and oral submissions I can find no basis to interfere with the SST-AD’s decision and therefore dismiss the application for judicial review.
II.
Issue
[7]
The sole issue raised in this application is whether the SST-AD decision denying leave to appeal was unreasonable.
III.
Standard of Review
[8]
The SST-AD’s decision denying leave is to be reviewed against a standard of reasonableness (Tracey v Canada (Attorney General), 2015 FC 1300 at paras 17-23 [Tracey], Canada (Attorney General) v Hoffman, 2015 FC 1348 at para 27 [Hoffman], see also: Atkinson v Canada (Attorney General), 2014 FCA 187 at paras 24-26). In applying this standard the SST-AD is owed high level of deference (Hoffman at para 33).
IV.
Legislative Framework
[9]
For ease of reference, relevant portions of the Canada Pension Plan, RSC 1985, c C-8 and the DESDA are reproduced at Appendix A to this Judgment and Reasons.
[10]
Mr. Hideq’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.
V.
Preliminary Matter
[11]
Respondent’s counsel relies on Federal Court Rules, SOR/98-199 [the Rules] in submitting that the application incorrectly names the Minister of Employment and Social Development, Social Security Tribunal as the named respondents in this application. The respondent requests that the style of cause be amended to reflect the Attorney General of Canada as the respondent. The applicant does not oppose the amendment.
[12]
Sub-rule 303(1)(a) of the Rules requires that the applicant name every person “directly affected by the order sought in the application, other than a tribunal in respect of which the application is brought”.
The Social Security Tribunal has been improperly named as a respondent. It has also been held that government departments are not legal entities and similarly cannot be named as parties. (Gravel v Canada (Attorney General), 2011 FC 832 at paras 5 and 6). The style of cause is amended naming the Attorney General of Canada as the sole respondent.
VI.
Analysis
[13]
In considering Mr. Hideq’s application for leave to appeal the SST-AD correctly articulated and applied the test it was to apply at paras 6 and 7 of the decision:
(6) Subsection 58(1) of the Department of Employment and Social Development Act (DSEDA] sets out the grounds of appeal as being limited to the following:
(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;
(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.
(7) The Applicant must satisfy me that the reasons for appeal fall within any of the grounds of appeal and that appeal has a reasonable chance of success, before leave can be granted.
[14]
In applying this test the SST-AD is expected to review the underlying record and determine if the SST-GD failed to account for any evidence, or if it misconstrued or overlooked evidence. Leave to appeal should normally be granted where this review of the underlying record demonstrates the evidence was not appropriately considered (Joseph v Canada (Attorney General), 2017 FC 391 at paras 43 and 44, citing Griffin v Canada (Attorney General), 2016 FC 874 at para 20 [Griffin] and Karadeolian v Canada (Attorney General), 2016 FC 615 at paras 9 and 10).
[15]
Mr. Hideq’s written submissions focused exclusively on a variety of concerns relating to the SST-GD decision. However in advancing oral submissions his counsel relied on a single alleged error in the consideration and treatment of the evidence before the SST-GD and the SST-AD’s failure to recognize this error in considering the leave application.
[16]
Mr. Hideq argues that the SST-AD unreasonably concluded that the SST-GD appropriately considered a comprehensive rehabilitation and vocational assessment concluding that Mr. Hideq was totally disabled from any occupation for which he would be seen as reasonably suited by education, training or experience. He submitted that the SST-GD treatment of this report was an erroneous finding made without regard for the material before it and this report in actuality raised a ground of appeal that had a reasonable chance of success.
[17]
In its decision the SST-GD sets out an extensive summary of Mr. Hideq’s medical and work history. That review includes a summary of the rehabilitation and vocational assessment at paragraph 49 of the SST-GD decision where it is stated:
[49] On October 12, 2017, in a comprehensive rehabilitation and vocational assessment, a psychometrist and rehabilitation specialist, J. Kobayashi, stated that from a rehabilitative perspective, given a combination of factors, i.e., physical restrictions and limited English skills, the Appellant remains totally disabled from any occupation for which he would be seen as reasonably suited by education, training and experience.
[18]
Having acknowledged the rehabilitation and vocational assessment, the SST-GD then concluded at paragraph 83 that:
[83] Lastly the psychometrist, J. Kobayashi, in her comprehensive assessment on October 12, 2007, opined the Appellant, from a rehabilitative perspective, was totally disabled from any occupation for which he would be seen as reasonably suited by education training and experience. The Tribunal gives less weight to this statement as from a real world perspective, the Appellant was clearly able to describe his conditions and was able to answer any questions, exhibiting good language skills,; he is still young, and his education is such that he could easily be retrained in some occupation that would be suitable for his limitations; he also has good experience, based on the types of employment that he had, including having partnered in the ownership and operation of a business.
[19]
I am unpersuaded by Mr. Hideq’s submissions. Contrary to the submissions of Mr. Hideq’s counsel, the vocational assessment was not uncontradicted. There were three medical reports, one in December 2005, a second in June 2007 and a third in May 2009 all expressing the view that Mr. Hideq, despite his undisputed disabilities, retained a capacity to work. In placing less weight on the vocational report, the SST-GD articulated its rationale for coming to the conclusion it did.
[20]
In considering the application for leave to appeal the SST-AD also undertook a detailed consideration of each of the identified grounds of appeal, including the treatment of the vocational assessment. The SST-AD acknowledged that the SST-GD may not have referred extensively to the vocational assessment but found the SST-GD articulated its reasons for assigning said vocational assessment less weight.
[21]
The SST-AD reasonably concluded that the appeal did not have a reasonable chance of success on this ground. It is not the role and function of a reviewing court to reweigh and reconsider the evidence and substitute its own view of a preferable outcome (Griffin at paras 14, 23).
[22]
While Mr. Hideq’s counsel focused solely on the vocational assessment in arguing that the SST-AD decision was unreasonable, I have also considered the remaining grounds for appeal advanced before the SST-AD. I am similarly unable to conclude that the SST-AD conclusion that these grounds failed to disclose a reasonable chance of success on appeal was unreasonable. The SST-AD reasonably found that it was not the role of the Appeal Division to reweigh evidence and that the SST-GD had considered and addressed the cumulative effect of Mr. Hideq’s disabilities in rendering its decision, citing express statements in the SST-GD to support this conclusion. It further reasonably concluded that Mr. Hideq’s psychological state was considered as were his attempts at self-employment. Mr. Hideq also took issue with the content of certain expert medical reports that had been placed before the SST-GD but again the SST-AD reasonably concluded that any medical information excluded from these reports could have been addressed through secondary reports being placed before the SST-GD and that this ground of appeal did not disclose any error on the part of the SST-GD. Finally the SST-AD concluded that the real world context that the SST-GD is required to consider in assessing an individual’s work capacity was adopted in this case (Villani v Canada (Attorney General), 2001 FCA 248 at para 39).
[23]
In summary the SST-AD and SST-GD decisions reflect the required elements of justification, transparency and intelligibility and falls within the range of possible, acceptable outcomes defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[24]
The parties did not seek costs and none will be awarded.
JUDGMENT IN T-2069-15
THIS COURT’S JUDGMENT is that:
The application is dismissed;
The style of cause is amended to reflect the Attorney General of Canada as the sole respondent; and
No costs are awarded.
"Patrick Gleeson"
Judge
APPENDIX A
Canada Pension Plan, RSC 1985, c C-8
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Department of Employment and Social Development Act, SC 2005, c 34
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FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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T-2069-15
|
| STYLE OF CAUSE:
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ZAKI HIDEQ v ATTORNEY GENERAL OF CANADA
|
| PLACE OF HEARING:
|
Windsor, Ontario
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| DATE OF HEARING:
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April 27, 2017
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| JUDGMENT AND REASONS:
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GLEESON J.
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| DATED:
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MAY 3, 2017
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APPEARANCES:
| Anthony Barile
|
For The Applicant
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| Michael Stevenson
|
For The Respondent
|
SOLICITORS OF RECORD:
| Anthony Barile
Barrister and Solicitor
Windsor, Ontario
|
For The Applicant
|
| William F. Pentney
Deputy Attorney General of Canada
Gatineau (Québec)
|
For The Respondent
|