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Disability Benefits Under the Canada Pension Plan 2016
- Appeals to the Social Security Act Tribunals ©

By F. Kenneth Walton, QC
F. Kenneth Walton Law Corporation,
Victoria British Columbia,
May, 2013 as amended July 2016
Victoria, BC

  1. Reason For This Paper
  2. The background To This Area of The Law
    1. Overview
    2. Amount of the Benefit
    3. How Does An Applicant Qualify for Disability Benefits?
    4. What is the Advantage to the Person Applying?
    5. Are there Disadvantages?
    6. Where Does a Lawyer Enter into This Process?
  3. Regime of the Canada Pension Plan
    1. The Requirements to Show Disability
    2. The Processing of Your Client's Application
  4. The New Appeal Processes
  5. Appeal to a Social Services Tribunal
    1. The 90 Day Appeal Period
    2. The Task of the General Division
  6. The Onus of Proof
  7. Summary of Requirements to Qualify for Disability Benefits
    1. The Minimum Qualifying Period
    2. The Late Applicant
    3. "incapable regularly of pursuing"
    4. "substantially gainful"
  8. Villani
  9. The Medical Evidence
    1. Possibility of Repair of Medical Evidence
    2. A Client Who Fails to Follow Medical Advice
    3. Mental Disability
    4. Chronic Fatigue Syndrome And Fibromyalgia
    5. Alcoholism
  10. Res Judicata
  11. Other Post-Hearing Matters
  12. Commencement of Payment
  13. Appeal of a SST Decision
  14. Judicial Review of a decision made the Social Security Tribunal Appeal Division
  15. Statutory Section
  16. End Note

I. Reason For This Paper  Go to the top

This letter was written for lawyers and not the general public. It should be read with that in mind. Case law and statutes change so what is written here may not be the law if a court decision has altered the law or Parliament has amended the Act(s) since this paper was written.

When the person applying for a disability benefit (an applicant) was turned down by the civil servants there was and still is a right to have that decision reconsidered by another civil servant. If reconsideration was refused, there was before April 1, 2013 an automatic right to appeal to a Review Tribunal even if your appeal was hopeless.

Before April 1, 2013 the appeal method under the Canada Pension Plan was an appeal to a Review Tribunal under the Office of the Commissioner of Review Tribunals (the "OCRT"). If an applicant was refused by the Review Tribunal there was a limited right of appeal to the Pension Appeals Board, but only if the Pension Appeals Board gave the applicant permission to appeal.

All that changed April 1, 2013. The Review Tribunal system was abolished, as was the Pension Appeals Board. A new system was made, with tighter rules about the time to appeal and what could be heard before the first level of appeal decision maker and before the second such level. It is now more difficult to appeal, as the requirements are stricter.

The reason for this paper is to explain the new system as I see it.


II. The background To This Area of The Law  Go to the top

This paper is about disability benefits only. It highlights the most common problems. Exceptional situations are not dealt with.

a. Overview

Every contributor (worker) in Canada over 18 years of age who declares income taxable earnings also contributes to the Canada Pension Plan. Provided a worker has made specified contributions (see: section 6), the Canada Pension Plan entitles a worker not only to an eventual retirement pension but among other features a disability benefit in the event that a worker becomes disabled from any type of work that provides a living (work that is 'substantially gainful'), and that the worker could have done.

b. Amount of the Benefit

The benefit is a monthly payment based on contributions, but with a minimum floor for those with a poor contribution history. Additional amounts are paid if your client has dependent children of up to age 18 years, or if in school and over 18 until the age of 25.

 

c. How Does An Applicant Qualify for Disability Benefits?

These are the requirements:

1. Your client is less than 65 years of age (and not in receipt of a CPP disability benefit);

2. Your client is unable to work because of a medical condition, which is both severe and prolonged;

3. When your client was working, your client contributed certain required amounts to the CPP for at least four of the last six years (or before 1998, 2 of the last 3 years, or 5 of the last 10 years)

OR

Your client has contributed to the CPP for at least 25 years and made valid contributions to the Plan during three of the last six years.

d. What is the Advantage to the Person Applying?

There are several:

1. A monthly payment which once awarded is difficult for CPP authorities to take back (under the former appeal system – and probably under this one – those authorities have the onus of proving that your client is no longer disabled – no easy task);

2. An applicant's eventual CPP retirement pension will be improved. Even though the applicant is not contributing while to the CPP retirement fund while on Disability Benefits, the time the applicant is on disability benefits is not included in the calculation of the applicant's CPP retirement pension.

e. Are there Disadvantages?

 

Some forms of provincially provided disability payments also allow benefits such as health care payments and bus passes. If your client is on these benefits provincial benefits may cease when CPP disability benefits are granted. So one could lose additional benefits provided by provincial disability but not by CPP. Check to see whether the advantages of CPP out weigh the possible disadvantages before applying.

 

f. Where Does a Lawyer Enter into This Process?

It was unusual to see a lawyer involved early in the application process, unless the lawyer suggested that the application be made. If that is the case, the lawyer may be able to solve a common failing: putting forward properly targeted medical evidence.

In my opinion, the new Social Security Tribunal ("SST") forms for applying for disability benefits appear to be complex and may be beyond the ability of the average person to complete in a way that truly expresses the nub of that person's problem.

An applicant would be wise to include supplemental medical information that is helpful, in their application. Neither the former OCRT appeal system nor this one is governed by the expert report disclosure requirements that are a feature of the BC Supreme Court Civil Rules. An applicant has no obligation to produce everything.

Failure to include the report of an expected doctor (say a treating physician) can result in an adverse inference against an applicant meaning that an applicant may lose an appeal by not including medical information from the doctor who is expected to know the most about the applicant's medical history.

Probably the inclusion of legal advice at the first appeal stage (the General Division appeal stage – better yet, at the application stage) will prevent a miscarriage of justice.

By that, I mean a lawyer will know what medical evidence to marshal. This may be critical, since the new appeal legislation may not allow the admission of evidence which was discoverable before the first (General Division) appeal hearing but which was not before that tribunal (see the discussion on point 12 under 'New Appeal Process'–above).


III. Regime of the Canada Pension Plan  Go to the top

I describe the regime of the Canada Pension Plan and how the system appears to work in terms of applying for disability benefits.

When I speak of the Minister I mean the Minister of Human Resources and Skills Development.

Those who work for Service Canada as decision makers or as advocates before the Review Tribunal commonly call the Minister, perhaps more accurately 'the department'.

a. The Requirements to Show Disability

The issue is whether your client is deemed disabled under Section 42(2) (a) of the Canada Pension Plan, which reads as follows:

"(2) For the purposes of this Act,

(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; ….."

To qualify for disability benefits your client has to satisfy the following criteria:

Does your client have a disability?

If 'yes':

(a) does that disability prevent your client from engaging in a 'substantially gainful occupation'?

(b) did the disability happen before the end of the minimum qualifying period?

(c) is the disability either of indefinite duration or is it likely to result in death?

If your client is disabled and the answer to (a), (b) and (c) is 'yes' then your client is likely entitled to disability benefits.

A disability is 'severe' only if because of it a person is incapable regularly of pursuing a substantially gainful occupation and not just the usual job that person has worked at.

The leading case in interpreting disability is Villani v. Canada (Attorney General), 2001 FCA 248, [2002] 1 FC 130 ruled that :

"[29] Accordingly, subparagraph 42(2)(a)(i) of the Plan should be given a generous construction. Of course, no interpretive approach can read out express limitations in a statute. The definition of a severe disability in the Plan is clearly a qualified one which must be contained by the actual language used in subparagraph 42(2)(a)(i). However, the meaning of the words used in that provision must be interpreted in a large and liberal manner, and any ambiguity flowing from the those words should be resolved in favour of a claimant for disability benefits."

And later…

"(c) The Appropriate Legal Test for Disability under the Plan

[37] Except for one case, none of the recent decisions of the Board has analyzed fully the text of subparagraph 42(2)(a)(i) of the Plan. That one occasion was the Board's relatively recent decision in Patricia Valerie Barlow v. Minister of Human Resources Development, CP 07017 (November 22, 1999). It is worth repeating the central passage of the Board's decision in that case:

Is her disability sufficiently severe that it prevents her from regularly pursuing any substantially gainful occupation?

To address this question, we deem it appropriate to analyze the above wording to ascertain the intent of the legislation:

Regular is defined in the Greater Oxford Dictionary as "usual, standard or customary".

Regularly – "at regular intervals or times."

Substantial – "having substance, actually existing, not illusory, of real importance or value, practical."

Gainful – "lucrative, remunerative paid employment."

Occupation – "temporary or regular employment, security of tenure."

Applying these definitions to Mrs. Barlow's physical condition as of December, 1997, it is difficult, if not impossible, to find that she was at age 57 in a position to qualify for any usual or customary employment, which actually exists, is not illusory, and is of real importance.

[38] This analysis of subparagraph 42(2)(a)(i) strongly suggests a legislative intention to apply the severity requirement in a "real world" context. Requiring that an applicant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that an applicant be incapable at all times of pursuing any conceivable occupation. Each word in the subparagraph must be given meaning and when read in that way the subparagraph indicates, in my opinion, that Parliament viewed as severe any disability which renders an applicant incapable of pursuing with consistent frequency any truly remunerative occupation. In my view, it follows from this that the hypothetical occupations which a decision-maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience.

[39] I agree with the conclusion in Barlow, supra and the reasons therefor. The analysis undertaken by the Board in that case was brief and sound. It demonstrates that, on the plain meaning of the words in subparagraph 42(2)(a)(i), Parliament must have intended that the legal test for severity be applied with some degree of reference to the "real world". It is difficult to understand what purpose the legislation would serve if it provided that disability benefits should be paid only to those applicants who were incapable of pursuing any conceivable form of occupation no matter how irregular, ungainful or insubstantial. Such an approach would defeat the obvious objectives of the Plan and result in an analysis that is not supportable on the plain language of the statute."

A disability benefit ceases to be payable the month in which the beneficiary ceases to be disabled, attains 65 years of age, dies, or preceding that in which a retirement pension becomes payable to the beneficiary.

Applicants who have a terminal illness will have their disability applications reviewed within 48 hours upon receipt of their application. Service Canada staff gives these applications priority to determine eligibility quickly so that benefit payments can start as soon as possible.

b. The Processing of Your Client's Application

I have no direct knowledge of how this works. All I can tell you is how it appears to work.

Your client's application will be reviewed by a medical adjudicator (often trained as a registered nurse) who will determine:

(a) Whether your client has made sufficient contributions to be entitled to apply for disability benefits;

(b) The date that the Minimum Qualifying Period expires (the date before which your client must be disabled);

(c) Whether on the basis of the objective medical evidence your client is incapable of performing any 'substantially gainful' work of any type.

It is not unusual that your client will be refused benefits on the basis that it appears that your client is likely able to do some work either part-time or full-time even if that work is different from the occupation that your client was last engaged in. Often this appears to be an exercise in guess work by the decision maker as that person knows not what work your client has performed in the past nor does the decision maker interview your client to canvass what jobs your client would be capable of doing.

Usually such a decision is based on a finding that there is no objective evidence of crippling injury or condition. Many times there is an expectation that your client can do some other kind of remunerative work. It is a reasonably safe bet that your client's subjective statements as to why your client is disabled are given little weight.

The letter declining your client's application will say that your client may have this decision reconsidered.

Your client should send a letter saying how dissatisfied your client is with this decision, asking that it be reviewed. (It is helpful at the appeal level if your client gives reasons why your client thinks that the decision is wrong. It would be very helpful if that letter stated what jobs your client held in the past and recited the duties of those jobs that your client's disability prevents your client from doing. If true, it may be useful to state that although your client has a grade 10 education, your client found that hard to achieve because your client found learning difficult ("I worked like a dog but got only C's and Ds."). Education is a touchy subject to those whose educational achievements are low. Make sure that when your client says your client has a grade 10 that is true. If it is a grade 9 with a few Grade 10 subjects your client may be doing a disservice to themselves, as a weak education is a reason the General Division (if it approaches matters in the same way that the Review tribunal did) will probably consider heavily).

Some months later your client will be advised of the results of that review. If the results of the review are that there is no change and that your client's application for disability benefits remains declined, then your client has a right to appeal to the General Division.

TIP: Res Judicata has no application to a Ministerial decision (in this case the two decisions made by the public servants denying your client's application for disability benefits): The Minister of Human Resources Development v Lavoie (June 27, 1997) Canadian Employment Benefits and Pension Guide Reports, 8685.


IV. The New Appeal Processes  Go to the top

The method of appealing a refusal of benefits changed April 1, 2013.

I have modified my previous paper on appeals under the Canada Pension Plan, which until March 31, 2013, went before either the Review Tribunal or, if there was an appeal, to the Pension Appeals Board. Both bodies are now defunct.

I have changed my website to include the matters below, the things which I think likely still apply.

This is a guess on my part. I expect that simply because there is now a Social Security Tribunal that the previous decisions of the Pension Appeals Board may still be good law and certainly the decisions of the Federal Court will be binding.

Recent changes to Appeals under the Canada Pension Plan are a significant departure from the pre-April 2013 Appeal Regime.

The Canada Pension Plan says:

"Appeal to Social Security Tribunal
82. A party who is dissatisfied with a decision of the Minister made under section 81, including a decision in relation to further time to make a request, or, subject to the regulations, any person on their behalf, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act."

Before April 1, 2013 the appeal was to the "Office of the Commissioner of Review Tribunals" (Which I call hereafter "OCRT").

After April 1, 2013 the new appeal body is the SST whose website is Canada.gc.ca/sst/tss.

The Social Security Tribunal, consists of the Social Security Tribunal, General Division (hereafter called the 'General Division' – replacing the former Review Tribunal under the OCRT system) and the Social Security Tribunal, Appeal Division (replacing the former Pension Appeals Board) see: section 44 of the Department of Human Resources and Skills Development Act (which I call hereafter the DHRSD Act).

The new system has these important changes:

1. An appeal to the General Division must be brought within 90 days of the applicant's final refusal of a disability pension on reconsideration. The General Division "may allow further time within which an appeal may be brought" after the expiration of the 90 day appeal time limit provided the time is no more than one year from that decision – See section 52 (2) of the DHRSD Act.

2. If a person intending to appeal (the appellant) does not appeal with the 90-day appeal period, the appellant has to file a special form asking for leave to appeal. If leave is refused, that decision can be appealed.

This provision for a time limit for appeals is a change from the old procedure as the OCRT frequently allowed appeals to proceed well after the 90-day appeal period. There was no ultimate one-year bar to an appeal as under the new system. (Note: there are special rules for the mentally disabled, who may not be caught by the limitation periods. There are other exceptions that are not mainstream, so I will not detail them).

3. There is an ultimate limitation period of one year after which there can be no appeal.

Even though there is a one-year limitation that does not bar an application in all circumstances. The Service Canada Website states: "If you are applying for a CPP disability benefit but stopped working so long ago that you are now too late to apply but you meet all the other conditions of eligibility, you may still be eligible for a benefit. This is called the late applicant provision
You may be eligible if: you had enough years of CPP contributions when you first became severely disabled you have been continuously disabled (as defined by CPP legislation) from that date up to the present time."

4. Unlike the old system the General Division can dismiss an appeal, which in its view, has no prospect of success (see section 53 of the DHRSD Act). There is a right of appeal from such a decision.

I expect that decision making process would be reserved for obvious cases such as the person appealing had not made the necessary contributions to the Canada Pension Plan to establish the minimum qualifying period (the period of contribution required before one is eligible to apply for a disability benefit), the disability arose after the end of the minimum qualifying period, or the applicant previously appealed and was unsuccessful so the matter is what is called res judicata (meaning it has already been decided and cannot be retried). This particular reform was needed because under the OCRT system, an applicant had a right to appear before a Review Tribunal even though the applicant had no chance of success.

5. Another change is that it is not necessarily required that the appellant appear before General Division. The General Division may make decisions based upon written information. The General Division can ask for further information if it is unsure of some point. If there is an oral hearing it can either be an in person hearing or it can be done by telephone or videoconference.

6. A further change is that witnesses are to be sworn at the General Division hearings. This rarely occurred before the Review Tribunal under the old OCRT system.

7. At the hearing, proceedings are recorded which never happened at a Review Tribunal. The website states that the hearings will be recorded by a digital audio recording device which means that there's a complete record in case of an appeal. It also states that parties to an appeal are not permitted to record tribunal hearings. It appears that this change makes the General Division a court of record which the old Review Tribunal, lacking sworn testimony and any recording of what took place, never was.

8. Another change is that names and addresses of witnesses must be submitted in advance of the hearing. This never was required under the old Review Tribunal.

9. There are changes in the forms to be submitted. The forms required for appeal do not have to be used as long as the appeal letter covers all of the matters that are set forth in the form.

10. An appeal from a decision of the General Division is to the Social Security Tribunal, Appeal Division (hereafter called the 'Appeal Division').

11. As with the former Pension Appeals Board, leave to appeal must be granted by the Appeal Division before an appeal may proceed. See: sections 57(1)(b) and 58(2) of the DHRSD Act.

12. The Appeal Division "may allow further time within which an appeal may be brought" after the expiration of the 90 day appeal time limit, provided the time is no more than one year from that decision. See: section 57(2) of the DHRSD Act.

13. New is the idea that grounds for Appeal must fall within certain categories these being: that the General Division failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; the General Division erred in law in making its decision, whether or not the error appears on the face of the record; or 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: see section 58(1) of the DHRSD Act.

Under the old appeal system, different evidence could be put placed before the Pension Appeals Board than was before the Review Tribunal. That is, evidence found or requested of the treating physician after the Review Tribunal Hearing could be brought to the attention of the Pension Appeals Board. The Pension Appeals Board could have this new evidence and overturn the Review Board Decision based on matters never before the Review Tribunal.

It appears that cannot be done on appeals to the Appeal Division unless that evidence falls within the ambit of 'new facts' dealt with later in this paper.

If the discovery of 'new facts' is subject to the same limitations as under the former appeal system, then the presentation of new evidence which should have been available to the General Division had the Appellant thought of it, may not be able to be utilized on an appeal to the Appeal Division.

That would seem somewhat harsh given that this system is poor people's law, rife with lay people appellants who have next to no knowledge of the law. A liberal interpretation of the admission of evidence previously overlooked might be the fairer thing to do.

14. If you are appealing and want a copy of what was said at the General Division hearing there is a form which will allow you to request a copy of the General Division's hearing recording.

A potential problem is that you must ask for the hearing record and then pay the cost of transcribing what was said before the Appeal Division into writing (hearing recording). An authorized person, often a court reporter, must do that transcription. In a recent appeal to the Federal Court of Appeal, the cost of the transcription of a two-hour hearing before the Appeal Division was $500.00.


V. Appeal to a Social Services Tribunal  Go to the top

INTRODUCTION

If your are in the Appeal System, you had better win at this level as Appeal to the next level will not allow you to introduce new evidence except in extreme circumstances (where the evidence existed but with due diligence, you could not have known about it).

The Minister (being the CPP officials) does not have to prove anything. Any person who applies for CPP Disability Benefits (an applicant) has to show that applicant is entitled to disability benefits. The Minister will not lift a finger to help an applicant to prove the applicant’s case.

Excluding cases of expected death an applicant must prove entitlement to disability benefits the same way as done in any court case. As most people have no idea of how to produce such proof, applicants are at a big disadvantage in applying for disability benefits and later appealing a denial of those benefits by the Minister.

The applicant had better win at this level as if not chances are the applicant will not be able to correct a lack of evidence.

To put it bluntly, if the applicant loses at this level the chances are greater the applicant’s goose is cooked and cannot be brought back to life.

The Usual weakness is the medical evidence

Most applicant’s appeal fails because the medical evidence does not show that the applicant cannot do any job that they had performed in the past or were trained to do.

It’s a failure (usually) of the medical evidence.

Its not the fault of the applicant’s doctor. The Minister’s form of medical report asks the applicant’s doctor for a ‘prognosis’ but does not ask how the applicant’s condition affects that person’s ability to work. Quite properly as the doctor is not asked that question the doctor does not say anything about it. Often that means that the applicant has not proven the facts needed to show the applicant is entitled to disability benefits.

What an applicant person applying for disability benefits should do (even at the earliest application) is to write to the Minister (the CPP officials) and say:

  1. What jobs that applicant has held in the past and give reasons why the applicant’s disability does not allow the applicant to perform that job.
  2. If the applicant has training for an occupation but did not do the work the applicant was trained for, the applicant should give reasons why the applicant’s disability does not allow the applicant to perform that job.
  3. Get a letter from the applicant’s doctor stating what is said in the next paragraph and send that letter along with the applicant’s letter to the Minister.

If the Minister (the CPP officials) refuse the applicant disability benefits then when applying for reconsideration (or if reconsideration is refused) then on appeal to the Social Services Tribunal the applicant should:

  1. Send the Minister a letter outlining what was said in the previous paragraph along with a doctor’s letter stating the matters which next follow;
  2. The applicant should see the applicant’s doctor and tell the doctor what jobs that applicant has held in the past (and had training for but did not do) and why the applicant’s disability does not allow the applicant to perform the past jobs or those trained for;
  3. Have the doctor’s letter confirm that disability as it relates to the applicant’s inability to do whatever the work was or was trained for and:
    1. that the applicant cannot perform those jobs giving reasons why (in the doctor’s opinion) those jobs cannot be performed);
    2. stating that the doctor feels that this inability has existed from (a certain time) before the end of the minimum qualifying period; and
    3. that the doctor does not know when the applicant will be able to perform such job(s) because of the applicant’s disability.

It is NOT enough for the doctor to say that the applicant has a particular disability and then assume that the Minister will know that disability is enough to prevent the applicant to work at whatever job the applicant held in the past or was trained to do but never did.

Relying on the disability being a self-evident reason as to why the applicant is disabled for the job market is a good way to lose the application.

a. The 90 Day Appeal Period

our client has 90 days from the date that your client received the Minister’s decision refusing disability benefits within which to appeal: Canada Pension Plan s. 81 (1) (b)

b. The Task of the General Division

The task of the General Division is probably the same as that of the former Review Tribunal: to assess the evidence and determine whether the disability is of the type covered by the Canada Pension Plan (see Canada (Minister of Human Resources Development) v. Angheloni, 2003 FCA 140 (CanLII), 2003 FCA 140 at paragraphs 36 to 44).

It is expected that the Social Services Tribunals General and Appeal Divisions are independent decision makers. The Minister cannot interfere. The only requirement is that a Tribunals operate within the ambit of the Canada Pension Plan and the case law.

VI. The Onus of Proof  Go to the top

Except where a disability benefit has been both awarded and paid (in which case the Minister bears the burden of proof according to decisions of the former Pension Appeals Board: See: Pension Appeals Board decisions of Milton v. Minister of Human Resources Development (May 12, 2003) CP18657 page 4; Hawkins v. MHRD (October 7, 2003) CP 04276 page 3 (first full paragraph) and page 4 (last paragraph).

In all other situations, at any level of appeal whether the applicant is the appellant or the respondent (won at the lower level and the Minister appealed), the applicant always has the burden of proof.

In Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 (CanLII) – at para. 3, Binnie J. in describing Canada Pension Plan disability benefits stated that parliament created a particular type of benefit (a contributory plan) targeted at a particular group of individuals (those recently in the work force) who are disadvantaged with a particular type of disability (severe rather than superficial, permanent rather than temporary).

The appellant must satisfy certain criteria before the Minister is entitled by law to grant a disability pension.

That said we examine what an appellant must prove.

Normally, the appellant has the burden of showing on the balance of probabilities (50% plus the weight of a feather) that the appellant's alleged disability is severe, arose before the end of the minimum qualifying period, and is prolonged (extends continuously thereafter with no end in sight).

The following formula is often recited early on in every disability case at the former Pension Appeals Board level (the next level of appeal after the old Review Tribunal). It probably applies to cases decided by the General and Appeal Divisions.

To be eligible for disability benefits, the appellant must satisfy two basic requirements:

1. The appellant is eligible for disability benefits by having made contributions to the Canada Pension Plan for not less than the Minimum Qualifying Period (the MQP).

2. The appellant must prove that (s)he became disabled while still eligible as a result of those contributions and continues to be disabled.

The disability, whether mental or physical, must be "severe and prolonged" as defined in section 42(2)(a) of the Canada Pension Plan. The meaning of these terms will be discussed later.


VII. Summary of Requirements to Qualify for Disability Benefits  Go to the top

The Canada Pension Plan requires your client to have contributed to the plan in a defined amount over a minimum number of years.

The disability must take place within that time or up to two years afterwards as will be explained later (this is called 'the Minimum Qualifying Period'). A few years ago changes to the legislation allow a disability benefit to be paid, if your client has made valid CPP contributions for at least 25 years, including three of the last six years, prior to becoming disabled.

The disability for which a benefit is payable must be close to a total disability. I say 'close to' because an applicant can still have earnings, but in most cases (the exception being those employed through benevolence where earnings may be significant and yet the right to disability benefits still exists) those earnings must not be considered as 'substantially gainful'.

Please note that in at least one Pension Appeals Board case earnings were merely one piece of evidence which must be weighed with all the other evidence respecting disability: Minister of Human Resources Development v. Porter (Pension Appeals Board, Appeal CP05616, December 1998).

The Minister has established maximum amounts for such additional earnings. Earnings achieved above that maximum may cause the Minister to discontinue benefits.

The important fact is that the Minister's criteria are not legislated. The former appeal system often ignored earnings above those Minister decreed maximums. There is no reason to suspect that the new appeal bodies will regard the Minister's maximums in a different way that did the former appeal bodies.

Under section 42(2)(b) of the Canada Pension Plan, the earliest your client can be deemed to be disabled is 15 months prior to the date of application, and will be deemed disabled only if an applicant was disabled at or before that time.

With the 4 month waiting period mandated by section 69 of the Canada Pension Plan, that means payment is retroactive to 11 months before the application provided that the disability arose at least 15 months before that time. (In unusual situations there are exceptions to the 15 months maximum retroactivity and 4 months payment delay.)

a. The Minimum Qualifying Period

The Minimum Qualifying Period, or MQP, is the minimum time (number of years) that your client needs to have contributed to the Canada Pension Plan to be eligible for a disability benefit.

Before 1998, almost any amount of yearly contribution was sufficient to count as part of the minimum qualifying period. From 1998 onward ever increasing minimum amounts of earnings were needed in order for a year to be counted towards the MQP. Those earnings were:

1998 – $ 3,600
1999 – $ 3,700
2000 – $ 3,700
2001 – $ 3,800
2002 – $ 3,900
2003 – $ 3,900
2004 – $ 4,000
2005 – $ 4,100
2006 – $ 4,200
2007 – $ 4,300
2008 – $ 4,400
2009 – unable to find
2010 – $ 4,700
2011 – $ 4,800
2012 – $ 5,000
2013 – $ 5,100
2014 – $ 5,200

The current rule is that your client must have made qualifying contributions in four out of the last six years. In addition, effective March 3, 2008, applicants who have made qualifying contributions in three of the last six years and valid CPP contributions for at least 25 years can meet the contributory requirement.

b. The Late Applicant

In June 1992, the Canada Pension Plan was amended to introduce a 'Late Applicant Provision,' to assist those persons who may have been entitled to a disability benefit had an application been submitted at a time when the individual last satisfied the contributory requirements: (see: Section 44(1)(1) (ii)).

To qualify under the Late Applicant Provision, a client must be declared disabled:

• from the month the minimum qualifying period was last met,
• without interruption, and
• to the month of the application

c. The Elements of Section 42

Section 42 of the Canada Pension Plan states as follows:

"(2) For the purposes of this Act,

(a) a person shall be considered to be disabled only if he is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death; ….."

In The Minister of Employment and Immigration v. Campoverde (October 21, 1994), Canadian Employment Benefits and Pension Guide Reports, No. 8556, in discussing the word 'severe' the Pension Appeals Board said (page 6041):

"It should be noted that the definition of "severe" is not expressed in terms of medical diagnosis or disease descriptions, but solely in terms of an individual's capacity for activity in the work forum."

The component "prolonged" has been the subject of judicial discussion at the Pension Appeals Board.

The Pension Appeals Board decision in MNH&W v. Lauzon stated this requirement as follows:

"[If] medical prognosis at the time of treatment cannot project, not necessarily a cure, but a recovery to the degree that the individual in question would, within a foreseeable and reasonable time, having regard for the nature of the injuries and the resultant disability, recover sufficiently to enable [him or] her… to engage in some form of substantially gainful employment [then the disability is prolonged]. If future return to the work force, in whatever capacity within a reasonable time, is medically uncertain, then the disability may be held to be prolonged."

As pointed out by Douglas Lloy in the text book, CPP Disability Pension Guide, LexisNexis Canada Inc., at page 93 "…it is quite possible for a disability to be prolonged (such as Asthma) but not necessarily severe. It is also possible for a disability to be severe but not prolonged, as an acute heart attack that although at the time was severe, is not prolonged. It follows that a condition, even if it is severe, must also be prolonged in order to meet the requirements of S.42 (2) (a)".

The author then goes on to say that the descriptive words, which follow the definition, leave no doubt that it must be a disability that is expected to exist for a long time or may even lead to the death of the applicant.

The key in this concept is that of indefinite duration. If the applicant's recovery time is predictable within a foreseeable time frame, then the disability, although perhaps severe, is not prolonged and the applicant's case will fail.

c. "incapable regularly of pursuing"

The key point is that regularly modifies 'incapable' and not 'substantially gainful occupation'. A plain language reading would be 'regularly incapable of pursuing'.

In Canada (Minister of Human Resources Development) v. Scott, 2003 FCA 34 (CanLII): The test is whether a disability is "severe": whether that person "is incapable regularly of pursuing any substantially gainful occupation . . . ." It is the incapacity, not the employment, which must be "regular" and the employment can be "any substantially gainful occupation".

The question of what amounts to "incapable regularly of pursuing" a substantially gainful occupation was earlier considered in The Minister of Human Resources Development v. Bennett (Pension Appeals Board – July 9, 1997). To be "regularly of pursuing any substantially gainful occupation" is predicated upon that person being capable of coming to work whenever and as often as necessary. "That predictably is the essence of regularity". It is not a reasonably attainable requirement in today's workplace that a supportive employer with a flexible working schedule or productivity requirement be needed. It follows that if that is what is required for your to return to work, your client is "incapable regularly pursuing any substantially gainful occupation".

The Pension Appeals Board decision in L.F. – v – Minister of Human Resources And Skills Development – Appeal CP26809 September 20, 2010 (Pension Appeals Board) at paragraph 35 held that paragraph 42(2)(a) of the Canada Pension Plan does not mean that any kind of job will suffice to qualify as a substantially gainful occupation. Paragraph 42(2)(a) is concerned with the capacity of an applicant to work in a meaningful and competitive work environment. It cannot be said to be a meaningful and competitive environment where an employer may have to make accommodations, by creating a flexible work environment to enable him to have a job that the applicant would not otherwise be able to perform in a normal competitive work environment and to put up with occasional absences from work.

d. "substantially gainful"

What is meant by "substantially gainful"?

This phrase was not defined until a regulation made in 2014 applicable to disability pension applications made after May 29, 2014.

In that year the regulations to the Canada Pension Plan made this definition:

  • "68.1 (1) For the purpose of subparagraph 42(2)(a)(i) of the Act, substantially gainful, in respect of an occupation, describes an occupation that provides a salary or wages equal to or greater than the maximum annual amount a person could receive as a disability pension. The amount is determined by the formula
(A × B) + C
 where
A
is .25 × the Maximum Pensionable Earnings Average; B
is .75; and C
is the flat rate benefit, calculated as provided in subsection 56(2) of the Act, × 12.
  • (2) If the amount calculated under subsection (1) contains a fraction of a cent, the amount is to be rounded to the nearest whole cent or, if the amount is equidistant from two whole cents, to the higher of them."

    SOR/2014-135, s. 1.

In Minister of Human Resources and Skills Development v B. P., 2015 SSTAD 367 (CanLII), the General Division of the Social Services Tribunal made this comment on the regulation [paragraph 40]:

"[40] If the formula were applicable, earnings equal to or greater than $14,836 for 2014 would qualify as “any substantially gainful employment”, as it would show that that occupation provides a salary or wages equal to or greater than the maximum annual amount a person could receive as a disability pension."

And

"[42] Prior to May 29, 2014, there was no statutory definition under the Canada Pension Plan for “substantially gainful”. However, the statutory definition could provide some guidance as to what qualifies as “substantially gainful”, though it is of course not applicable and of no force and effect for applications received prior to May 29, 2014."

If the regulation provides ‘some guidance’ that implies that something outside of the regulations (i.e. greater earnings) might yet be considered in deciding whether an earnings is ‘substantially gainful'.

If the definition is an absolute then it will be the entire determination of what amounts to ‘substantially gainful’.

So (unless the regulations can be challenged as outside of the authority of the regulation maker) it appears that this will be the meaning of ‘substantially gainful’ to appeals received after May 29, 2014.

If that is the case, the older authorities listed below have no application to the issue of what is or what is not ‘substantially gainful’.

The older Law on what is ‘Substantially Gainful’

What amounted to ‘substantially gainful’ was considered in Boles v. The Minister of Employment and Immigration, Canadian Employment Benefits and Pension Guide Reports, No. 8553, starting at page 6036.
The Appellant, Boles had severe arthritis. Notwithstanding that, she worked as a part-time switchboard operator earning over $16,000.00 annually. She had a substantial disability but it had not prevented her from working. On this issue at page 6037 the Board said:

"The only issue is whether Mrs. Boles, in working as a part-time switchboard operator, is pursuing a "substantially" gainful occupation.

Parliament, in distinguishing between a "substantially gainful" occupation and a "gainful" occupation, must have intended the former to require a less stringent condition for characterization of a claimant as disabled for pension purposes than would be the case if a person were required to be incapable of performing a "gainful occupation". It is only those persons who have the capacity to regularly pursue a "substantially gainful" occupation who are barred from obtaining a disability benefit.

What then are the criteria for determining whether one is pursuing "any substantially gainful occupation"? Without attempting to determine exclusive criteria, it obviously includes a monetary award for the services performed-which raises the next question-when is a monetary reward indicative of a "substantially gainful occupation"? The answer must be determined by an objective assessment of the remuneration and benefits received by the employee for his or her best services at the time of the application."

In Boles, the Minister wanted to use Canada Pension Plan Guidelines developed at a departmental level to establish what was a substantially gainful occupation. The Board rejected that saying:

"Such a construction would include occupations where the remuneration for the services rendered was not merely nominal, token or illusory compensation but rather compensation which reflects an appropriate reward for the nature of the work performed."

To show the “substantially gainful” aspect of your client’s previous occupation, your client might wish to lead evidence through Income Tax returns of past substantial earnings if such earnings existed. (But note that earnings levels (although not the tax returns themselves) are in the decision maker’s file).

In that regard see: Poole v. Minister of Human Resources Development Appeal CP20748 Heard in Barrie, Ontario July 10, 2003 where the lack of evidence that appears to have allowed the Board to conclude that ability to earn a minimum wage made an alternative occupation substantially gainful.

A person who is able to earn some money may still qualify for a disability pension: Osachoff v. The Minister of Human Resources Development (Pension Appeals Board - July 7, 1997) Canadian Employment Benefits and Pension Guide Reports, Volume 2 #8684 at page 6301.

“Some remunerative work” is not the same as a substantially gainful employment: Lummiss v. Minister of Human Resources Development (September 22, 1999 - CP 08229) Canadian Employment Benefits and Pension Guide Reports, #8820 at page 6616.

In the Pension Appeals Board decision, Carvery v Minister of Human Resources Canada (2003, CP18772) 14 – 16 hours of employment at $8.40 per hour was not considered ‘gainful’ employment.

I expect that the words ‘substantially gainful’ probably mean a living wage (enough money to live on). Such an interpretation would mean that a particular earnings level may be substantially gainful in a low cost of living area of our country but not so where the cost of living is higher.

TIPS:

  1. Before the definition of ‘substantially gainful was made by regulation, the department had bench marks by which it determined whether in its opinion earnings are ‘substantially gainful’. Those benchmarks are not made pursuant to any section of the Act or regulations and are not binding on an appeal body.
  2. The department will also sometimes consider what appear to be ‘substantially gainful’ earnings as a ‘work trial’ which in the department’s view does not count against the applicant. This ‘work trial’ concept is not the product of anything but departmental policy and is not binding on a Review Tribunal although if the result is favourable to the appellant a Review Tribunal will not usually consider ‘work trial’ earnings as disqualifying an applicant from benefits.

VIII. Villani  Go to the top

Villani v. Canada (Attorney General) (August 3, 2001) 2001 FCA 248 (CanLII) [2001] F.C.J. No. 1217 (Federal Court of Appeal) is the leading case in this area. Villani settled which of two lines of decisions the Pension Appeals Board had developed were to be followed.

The oldest line was the 'real world' approach to disability found in Leduc v. Minister of National Health and Welfare, Canadian Employment Benefits and Pension Guide Reports, Volume 1, No. 8546 (January 29, 1988) Pension Appeals Board. Leduc fell out of favour with the Pension Appeals Board in about the mid-1990s after which period lack of education and other 'personal characteristics' were considered personal 'deficiencies' not covered by the legislation.

Villani restored the Leduc approach. Villani decided that:

"[29] Accordingly, subparagraph 42(2)(a)(i) of the Plan should be given a generous construction. Of course, no interpretive approach can read out express limitations in a statute. The definition of a severe disability in the Plan is clearly a qualified one which must be contained by the actual language used in subparagraph 42(2)(a)(i). However, the meaning of the words used in that provision must be interpreted in a large and liberal manner, and any ambiguity flowing from the those words should be resolved in favour of a claimant for disability benefits."

More restrictive Pension Appeals Board approaches to the awarding of disability benefits fell with the Villani decision which held:

"[36] It is evident from a review of the Board's disability decisions, particularly its recent case law, that the Board's position regarding the severity requirement in subparagraph 42(2)(a)(i) of the Plan has been applied inconsistently. In the recent cases, there has been no discernible reason for the change in approach to the definition of "severe" in the Plan. For this reason, it becomes necessary for this Court to give direction concerning the proper legal test to be applied in determining whether an applicant suffers from a "severe" disability within the meaning of the Plan."

[37] Except for one case, none of the recent decisions of the Board has analyzed fully the text of subparagraph 42(2)(a)(i) of the Plan. That one occasion was the Board's relatively recent decision in Patricia Valerie Barlow v. Minister of Human Resources Development, CP 07017 (November 22, 1999). It is worth repeating the central passage of the Board's decision in that case:

Is her disability sufficiently severe that it prevents her from regularly pursuing any substantially gainful occupation?

To address this question, we deem it appropriate to analyze the above wording to ascertain the intent of the legislation:

Regular is defined in the Greater Oxford Dictionary as "usual, standard or customary".

Regularly – "at regular intervals or times."

Substantial – "having substance, actually existing, not illusory, of real importance or value, practical."

Gainful – "lucrative, remunerative paid employment."

Occupation – "temporary or regular employment, security of tenure."

Applying these definitions to Mrs. Barlow's physical condition as of December, 1997, it is difficult, if not impossible, to find that she was at age 57 in a position to qualify for any usual or customary employment, which actually exists, is not illusory, and is of real importance.

[38] This analysis of subparagraph 42(2)(a)(i) strongly suggests a legislative intention to apply the severity requirement in a "real world" context. Requiring that an applicant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that an applicant be incapable at all times of pursuing any conceivable occupation. Each word in the subparagraph must be given meaning and when read in that way the subparagraph indicates, in my opinion, that Parliament viewed as severe any disability which renders an applicant incapable of pursuing with consistent frequency any truly remunerative occupation. In my view, it follows from this that the hypothetical occupations which a decision-maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience.

[39] I agree with the conclusion in Barlow, supra and the reasons therefore. The analysis undertaken by the Board in that case was brief and sound. It demonstrates that, on the plain meaning of the words in subparagraph 42(2)(a)(i), Parliament must have intended that the legal test for severity be applied with some degree of reference to the "real world". It is difficult to understand what purpose the legislation would serve if it provided that disability benefits should be paid only to those applicants who were incapable of pursuing any conceivable form of occupation no matter how irregular, obvious objectives of the Plan and result in an analysis that is not supportable on the plain language of the statute."

Later at paragraphs 43 to 45 this was said:

"[43]…It is evident, to my mind, that the Board in this case has effectively read out of the severity definition the words "regularly", "substantially" and "gainful". In this way, the Board has reduced the legal test to the following: is the applicant incapable of pursuing any occupation? This approximates the "total" disability test eschewed by the drafters of the Plan. Indeed, the Board's repeated emphasis on the word "any" appears to have been a contributing factor in its misinterpretation of the statutory test for severity.

[44] In my respectful view, the Board has invoked the wrong legal test for disability insofar as it relates to the requirement that such disability must be "severe". The proper test for severity is the one that treats each word in the requirement. Those words, read together, suggest that the severity test involves an aspect of employability.

[45] Unfortunately for decision-makers under the Plan, employability is not a concept that easily lends itself to abstraction. Employability occurs in the context of commercial realities and the particular circumstances of an applicant. That is not to say that the Minister, the Review Tribunal or the Board must make intricate postulations respecting an applicant's employability in order to arrive at a severity determination. Furthermore, I wish to express that I should not be taken as stating that employability is to be determined purely by reference to an applicant's chosen occupation. Unlike section 95, paragraph 3 of the Quebec Pension Plan, R.S.Q. c. R-9, which specially provides that an applicant who is sixty years of age or over will have a severe disability where he or she is "incapable regularly of carrying on the usual gainful occupation" that he or she holds at the time of becoming disabled, the federal Plan makes no provision for a finding of severity where an applicant is merely disabled from pursuing his or her ordinary occupation as at the onset of the alleged disability. Rather, the test under the Plan is in relation to any substantially gainful occupation."

At paragraph 46:

"What the statutory test for severity does require, however, is an air of reality in assessing whether an applicant is incapable regularly of pursuing any substantially gainful occupation. Naturally, decision-makers already adopt a certain measure of practicality in their severity determinations. As an obvious example, the scope of substantially gainful occupations suitable for a middle-aged applicant with an elementary school education and limited English or French language skills would not normally include work as an engineer or doctor."

And at paragraph 50:

"This restatement of the approach to the definition of disability does not mean that everyone with a health problem who has some difficulty finding and keeping a job is entitled to a disability pension. Claimants still must be able to demonstrate that they suffer from a "serious and prolonged disability" that renders them "incapable regularly of pursuing any substantially gainful occupation". Medical evidence will still be needed as will evidence of employment efforts and possibilities. Cross-examination will, of course, be available to test the veracity and credibility of the evidence of claimants and others."

So in summary, these are the legal principals to be applied:

1. A decision-maker must consider the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience.

2. Parliament must have intended that the legal test for severity be applied with some degree of reference to the "real world" rather than disqualifying someone from benefits on the basis that the applicant must be able to work at something no matter how fanciful. (Concerning the 'real world' in Leduc, Edward v. Minister of National Health and Welfare (supra –PAB) it was noted that, while the medical people indicated that an appellant might possibly be capable of pursuing some unspecified form of gainful employment, Mr. Leduc did not live in an abstract, theoretical world so the question was whether, given his problems, any employer would remotely consider engaging him. The Court went on to write that "the hypothetical occupations which a decision-maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education level, language proficiency and past work and life experience).

3. Exclusion from the appellant's usual occupation is not the sole consideration, but rather whether the appellant is excluded from any substantially gainful occupation which by that person's background that person may reasonably be able to do.

4. Medical evidence is needed, as will evidence of employment efforts and possibilities in assessing the appellant's ability to perform a substantially gainful occupation.


IX. The Medical Evidence  Go to the top

In Inclima v. The Attorney General of Canada, 2003 FCA 117, the Federal Court of Appeal spoke of the importance of the claimant's evidentiary obligation at paragraph 3:

"Consequently, an applicant who seeks to bring himself within the definition of severe disability must not only show that he (or she) has a serious health problem but where, as here, there is evidence of work capacity, must also show that efforts at obtaining and maintaining employment have been unsuccessful by reason of that health condition."

a. Possibility of Repair of Medical Evidence

In my view, if a claim fails at the civil service level, most often it is because the applicant's medical evidence is not good enough.

This is the one area where an advocate can repair the deficiency in the evidence. This is frequently more important than making submissions at the hearing.

REQUIREMENTS FOR A DOCTOR'S REPORT

In the absence of occupational testing, most times the appellant's doctor is in the best position to access the appellant's ability to work. Sometimes the appellant's doctor often does not understand that the "prognosis" in the CPP medical form should include comment on the applicant's ability to work before the end of the minimum Qualifying Period continuing to now and likely to continue in the foreseeable future.

If the doctor views the applicant as not being able to work at anything, frequently the doctor does not give reasons why that is so. Without those reason's the doctor's opinion does not carry much weight and may be disregarded as not helpful. The same problem arises if the doctor writes a subsequent report which again opines that the applicant cannot work but does not give reasons why that is so. Get the doctor to specify in detail why the applicant cannot work and that this situation will extend to the foreseeable future the doctor giving reasons for that statement.

The nub of the doctor's opinion is simply this: because of your client's disability, your client could not continue working from such and so date (before the end of the MQP) to the present and is unlikely to work into the future.

More specifically, to qualify for a CPP disability benefit, medical evidence (client's doctor's letter) must show that:

1. Your client had a medical problem (the doctor to specify what that problem is).

2. This medical problem disabled your client from working at any substantially gainful occupation before the end of the MQP. (The doctor must give reasons why this medical problem caused your client to be disabled. It is not proof enough for the doctor to say that in the doctor's opinion that your client could not continue working from such and so date to the present and is unlikely to work into the future without stating reasons for that opinion. The doctor must say those things BUT the doctor must give medically based reasons as to why that was and remains so (as an example: 'Your client's disc protrusion was so severe that he could not do any sedentary work requiring sitting nor could he do any work requiring standing or bending').

3. There exists no reasonable prospect of your client recovering from this condition in the foreseeable future.

If the doctor's opinion is that while your client is disabled now but will be fully able to work five months from now then your client will not qualify for disability benefits.

A doctor may in an appropriate case point out that an applicant's age, education, language difficulties or some other non-health factor is against the applicant in seeking work. On the authority of Villani, such pronouncements by a doctor are relevant.

Another problem arises with specialist's reports. Sometimes specialist's reports say that although the client may not be able to do their usual job, a more sedentary job may be suitable to the client. Frequently such statements are made without knowing any of the client's work history, background, education, work skills, language skills, ability to learn, and other physical ailments the client may have, which is outside a specialist's area of expertise. The family physician sometimes makes comments of this type again without basic knowledge upon which to make that assessment.

b. A Client Who Fails to Follow Medical Advice

A client must follow reasonable medical advice before the claimant can be ruled disabled. The reasons are stated in Windsor v. Minister of Human Resources Development (2003, CP17931 – Pension Appeals Board):

'[60] This Board has ruled in many cases that a disability claimant must show that he or she has made reasonable efforts at rehabilitation, based on sound medical or other health-care recommendations and advice, because, absent such efforts, it cannot be known whether the claimant's incapacity arises from true impairment or a simple refusal to cooperate in rehabilitation.'

There are many cases where disability benefits have been refused because of failure to follow appropriate medical advice. In The Minister of Employment and Immigration v. Johnston (September 18, 1998) Canadian Employment Benefits and Pension Guide Report No. 8733, pages 6430 and 6432, the respondent, a grossly overweight person, had not attempted to lose weight as recommended by the doctor. The Pension Appeals Board stated that only when after following such a recommendation and the disability continues can the Board rule the disability is "severe".

The Pension Appeals Board did not always take such a harsh view concerning noncompliance, see: Bulger v. Minister of Human Resources Development (CP24790 – March 30, 2000).

In The Minister of Human Resources Development v. Mulek (1996, CP04719), Dureault J. for the Pension Appeals Board stated:

"It has been consistently held by this Board that an applicant for a disability pension is obligated to make all reasonable efforts to undertake and submit to programs and treatments recommended by the treating and consulting physicians. Such programs quite often offer the only hope of ever regaining the capacity to engage in gainful occupation. Only when those measures fail after reasonable attempts and efforts, can it be determined that the disability is severe as that term is defined. Since the Respondent has not made an earnest effort to undertake those types of special activities, her lack of endeavor in this regard, amounts to unreasonable refusal to accept treatment."

c. Mental Disability

Although not an absolute, often claims based on mental disability need the evidence of a psychiatrist, to show that the applicant was disabled within the qualifying period. That is a problem in communities where no psychiatrist resides, in which case the fall back may be the family physician or a psychologist.

There are many cases dealing with such matters. By way of example, the Pension Appeals Board was concerned with the performance of the applicant in The Minister of Human Resources Development v. Johnston, and at page 6432 wanted to see whether Mr. Johnston, who was chewing the inside of his cheek, should have been seen by a psychiatrist. The Minister's medical consultant advised counsel for the Minister, that it would not help to obtain such a consultation at this late stage (1998) as the minimum qualifying period was December 31, 1994.

d. Chronic Fatigue Syndrome And Fibromyalgia

Chronic Fatigue Syndrome and Fibromyalgia cases generally require strong evidence.

There are many such cases decided by the Pension Appeals Board. Without pretending to give all of them, or all of the principles involved, I offer the following examples:

In Donald Hunter v Minister of Social Development (2006, CP23431), the Pension Appeals Board relied on the introduction on chronic pain in the reasons of Gonthier J. in the Supreme Court of Canada decision Nova Scotia (Worker's Compensation Board) v Martin [2003] 2 SCR 504 as representing the current state of the law on this subject.

In Dhillon v. Minister of Human Resources Development (November 16, 1998) CP 05834 – Canadian Employment Benefits and Pension Guide Reports No. 8755, a Review Tribunal found that the doctors' reports did not give the necessary information to establish the claimant was disabled within the meaning of the Canada Pension Plan.

The Pension Appeals Board noted that if medical reports were the only criteria upon which decisions were made, that would leave the final disposition of a disability pension application solely and exclusively to the judgment of the medical profession. However, the import of the Canada Pension Plan is that such reports are but one tool that may be available to the members of the judiciary who constitute the Pension Appeals Board. The principle grounds for the application were Fibromyalgia and major depression.

"It must be noted that these conditions are virtually impossible to quantify through normal medical procedures. To a large extent, the symptoms are often of a subjective nature."

While the Review Tribunal may have been correct in the decision it arrived on, solely on the basis of the objective clinical medical reports, there exists in the Pension Appeal Board jurisprudence which the Tribunal may not have been aware of that such purely medical opinion may be overridden in certain circumstances.

One of these circumstances is the existence of viva voce evidence received from members of the immediate family, or others of that ilk. It is true that such evidence could well be tainted with subjectivity and thus suspect.

In this case, the non-medical evidence was accepted, and the Pension Appeal Board allowed the appeal.

In Minister of Human Resources Development v. Lys (March 31, 1998), CP 04335 – Canadian Employment Benefits and Pension Guide Reports No. 8710, page 6382, Mrs. Lys was a 45 year old, grade 10 educated manual labourer, injured in a motor vehicle accident resulting in chronic neck, low back and leg pain. She tried various therapies without improvement of her symptoms. She continued to work after the accident sewing car seats for an automobile manufacturer until 1990 when she stopped work because she could no longer cope with the pain. She had not returned to gainful employment. Reports from Mrs. Lys' Orthopedic surgeon and Rheumatologist led to a diagnosis of Fibromyalgia by her family physician. She had been referred to a psychiatrist for her depressed state of mind. She was given a prescription for antidepressants. The Review Tribunal found her disabled within the meaning of the Act. The Minister appealed. The appeal was dismissed.

On appeal to the Pension Appeals Board, the majority found that: ". . .the severity of the functional problems together with accompanying emotional manifestations have reached a chronic state showing no likelihood of improvement, afflicts her life and ability to attend at the workplace.

She has persuaded me that the combination of physical symptoms together with her depression precludes her from all or any substantially regular gainful employment now and in the foreseeable future as concluded by the majority decision of the Review Tribunal. . ." (page 6384)

In Minister of Human Resources Development v. Martin (September 11, 1998) CP 05019, – Canadian Employment Benefits and Pension Guide Reports No. 8729 at 6419, a 47 year old female had worked at a plant making plastics. Her employment had been terminated when she felt she was no longer "medically capable" of handling her job. There was evidence that her position was both "stressful and demanding". She applied for disability benefits under the Act in 1999. The medical evidence indicated that she suffered from chronic neurotic depression ("dysthymia") and osteoarthritis. Her physician had concluded in 1995 that she suffered from Fibromyalgia. She had been referred to a psychiatrist who found her to be "for all intents and purposes permanently disabled". The Review Tribunal found her to be disabled within the meaning of the Act. The Minister Appealed. The appeal was dismissed.

There was a conflict in the medical reports, but on the whole the Pension Appeals Board found support for the Tribunal's finding. At page 6423 the Pension Appeals Board said:

"Dr. Mallon does recognize a significant overlap between Fibromyalgia syndrome and such psychiatric conditions as anxiety and depression. That is something this Board encounters in a number of cases and, indeed, the Board rarely finds the symptoms of Fibromyalgia, such as fatigue and tender points to be, per se, disabling.

Although this case is far from the clearest case, I have reached the conclusion that the weight of medical opinion based on assessed symptomatology justifies a conclusion that the Respondent is disabled within the meaning of the term in the Canada Pension Plan. . .

On the balance of probabilities, I think it fair to say the evidence favours the Respondent's claim and the Review Tribunal's conclusion was a correct one, both as to the Respondent's being disabled and as to the date of onset. I would dismiss this appeal from that decision."

In Minister of Human Resources Development v. McInnes (June 2, 1999) CP 07454, – Canadian Employment Benefits and Pension Guide Reports No. 8784, at 6542, a 35 year old female applicant suffered a neck strain while lifting a heavy article at work, for which she initially improved, but which settled into increased pain and sensitivity in her shoulders, neck and back. No objective findings supported a diagnosis of Fibromyalgia. A psychiatrist found no evidence of major psychiatric disorder. Her doctor believed her genuine, and viewed her incapable of any work whatsoever. Her common law partner gave evidence that she was unable to carry on the most simple of activities of daily life. The Pension Appeals Board found her to have met the criteria for a disability pension.

e. Alcoholism

The Pension Appeals Board recognizes that alcoholism is a condition that can create a disability entitling an applicant to a disability pension: Pheby v Minister of Social Development September 14, 2005 Appeal CP23331; Constantinoff v Minister of Social Development Appeal CP22720 (Pension Appeals Board) at paras 48 and 49.


X. Res Judicata  Go to the top

Once an applicant has had a decision made, dismissing the application, that person cannot apply again to have a different decision made if the appeal relates to the same disability time period.

Res Judicata applies to decisions of the Review Tribunal (Canada Pension Plan section 84(1)).

If there is still time left in the MQP period and you client develops a greater disability after that then you client is not caught by Res Judicata relating to that later period.

Res Judicata cannot prevent another application claiming disability related to a time after the last hearing, but within the Minimum Qualifying Period.

If those situations do not apply, then your client must follow the appeal procedures outlined earlier in this paper.


XI. Other Post-Hearing Matters  Go to the top

The following observations are from my years as an advocate before the Review Tribunal. I expect that this still applies:

If the decision is in the appellant's favour, the appellant should not rush down to the CPP office looking for a cheque. The Minister has 90 days within which to decide whether to appeal to the Social Security Appeal tribunal.

Until the time for Appeal expires the Minister may delay payment: Canada Pension Plan s. 83.


XII. Commencement of Payment  Go to the top

When does payment start?

Under section 42(2)(b) of the Canada Pension Plan, the earliest an appellant can be deemed to be disabled is 15 months prior to the date of application and then only if the decision maker found your client to be disabled at or before that time.

In the usual case, with the 4 month waiting period mandated by section 69 of the Canada Pension Plan, that means payment commences at the earliest eleven months before the application.

If the finding of disability occurs after the 15 months deemed disability period then payment commences four months after the date that your client was found disabled.

There is one exception to the maximum 15 months deemed disability. That occurs where someone was not mentally capable of making an application. In that situation, section 60(8) of the Canada Pension Plan means that under section 82(11) of the Canada Pension Plan the deemed date of disability can go back to the date of the beginning of the client's mental incompetence.


XIII. Appeal of a SST Decision  Go to the top

There are two important things to note about this level of appeal:

  1. Leave (permission) to appeal must be given by the Appeal division. If no leave is given, there is no appeal.
  2. With limited exceptions, no new evidence may be introduced. All that can be argued (usually) is what happened or what evidence was before the Tribunal.

Section 58 (1) of the Department of Human Resources and Skills Development Act governs appeals and provides:

Grounds of appeal

  • 58 (1) The only grounds of appeal are that
    • (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.

The grounds are narrow. An appeal is not a do-over. If an appellant did not succeed before the Tribunal there is little likelihood of being able to produce additional evidence to correct the lack of evidence before the Tribunal. (the only exception is evidence helpful to the applicant which the applicant could not have known of exercising due diligence).

This is a marked departure from the former Pension Appeals Board system where additional evidence not before the Review Tribunal (which was the body appealed from) was always admissible.

In this respect, the new system is not as fair as the old system.

The following is taken directly from the SST website:

“Further Appeals

If you disagree with the decision of the General Division on your appeal for CPP benefits, you can submit an appeal to the Appeal Division of the SST.

For more information about the SST’s appeal process, please visit the Appeal process section of this website.

Summary Dismissal

An SST Tribunal Member will review HRSDC’S file as well as your Notice of Appeal form and any other information you have provided. The Tribunal Member must, by law, summarily dismiss the appeal if, in the Member’s view, the appeal has no reasonable chance of success. However, before doing so the Tribunal Member must notify you in writing of the intention to summarily dismiss the appeal. This will give you an opportunity to provide additional information and make a case to proceed with the appeal. A Tribunal Member will review this information and decide if your appeal should continue or should be dismissed. If it is dismissed, the Tribunal Member sends you the decision in writing.

Decisions to summarily dismiss can be appealed to the CPP/OAS Appeal Division.

Readiness to appeal

You, HRSDC and any additional party to the appeal have a maximum of 365 days to sign and file a Notice of Readiness with the SST. By signing the Notice, a party is indicating that he or she has no additional documents or submissions to provide and is ready to proceed. The SST can proceed with the appeal only once the Notice of Readiness has been signed and filed by all parties or once 365 days have gone by since the SST has accepted your Notice of Appeal form. HRSDC will also say in its notice if the Department intends to participate by sending a representative should a teleconference, videoconference or in-person hearing take place.

None of the parties can file additional documents or submissions once the SST receives a completed Notice of Readiness from all parties.

None of the parties can file additional documents or submissions one year after the date the appeal was filed with the SST, unless an extension request has been made. A Tribunal Member can accept or reject this request.

If the SST does not hear from you within 365 days of the day you filed your appeal, it will assume you are ready to proceed.

Organizing a hearing

The Tribunal Member will determine if a decision will be made on the record or if a hearing will take place when you and HRSDC agree that you are ready to proceed with the appeal or by 365 days from the date we receive your appeal whichever comes first.

A decision on the record means the Tribunal Member will decide based on the documents and submissions that were filed.

The types of hearings, available to read in our policies section, are:

  • by written questions from the Tribunal Member. The member will ask you and/or HRSDC questions in writing to which a written response is required;
  • a hearing by telephone;
  • a hearing by videoconference; or
  • an in-person hearing.

Regardless of the type of hearing you can participate in the official language of your choice. For information about the use of other languages during the appeals process please see the policies page of this website.

The SST will write you to tell you the type of hearing the Tribunal Member has decided to use. The SST will call or write to you to schedule the hearing. If your hearing is by written questions and answers, the SST will give you the date for providing the answers to the Tribunal Member. Following the hearing, the SST Member will issue a decision and the SST will send you a copy of that decision.

Re-opening a decision

You can use the Application to Rescind or Amend form (PDF format) to apply to the General Division and ask that it review its decision only if new facts come to light that were in existence but were not known before the hearing or before the decision was made. This application can be made only once and must be submitted within one year of the decision being made.”


XIV. Judicial Review of a decision made the Social Security Tribunal Appeal Division  Go to the top

There is an ability to seek judicial review of Appeal Division decisions.

The right to apply for Judicial Review under the Federal Court Act is found in sections 18 and 18.1 and 28 (1) (d). There is a time limit within which the application must be made (within thirty days after the time the decision or order was first communicated s. 18.1 (2)).

The application for Judicial Review from the Social Security Tribunal Appeal division is to the Federal Court of Appeal not to the Federal Court (Federal Court Act s. 28(1)(g)).

The Respondent is not The Minister of Human Resources and Skills Development but rather the Attorney general of Canada (Federal Court Rule 303(2)).

The rules in Federal Court of Appeal are different from those in the Federal Court. If you are used to the BC Supreme Court Rules and not conversant with those of the Federal Court, the best thing to do is call the Federal Court of Appeal registry and ask how to do it.

This court's rules require service of the Applicant's record (and a proof of service) to be done before the Applicant's record is filed with the Federal Court of Appeal.

It is expensive. The filing charge is $50.00. The Court of Appeal expects a transcript of the evidence which your client must pay for (about $500 for a half day hearing).

The Applicant's record must be in 5 coil bound copies for the Court (no binders are acceptable).

In BC, the Court holds its hearings in Vancouver, another expense for out of town counsel.

As this whole process is often poor person's law you'd better have a client who can at least bear these expenses.


XV. Statutory Section  Go to the top

The Department of Human Resources and Skills Development Act states:

"Powers of tribunal
64. (1) The Tribunal may decide any question of law or fact that is necessary for the disposition of any application made under this Act.
Canada Pension Plan
(2) Despite subsection (1), in the case of an application relating to the Canada Pension Plan, the Tribunal may only decide questions of law or fact as to
(a) whether any benefit is payable to a person or its amount;
(b) whether any person is eligible for a division of unadjusted pensionable earnings or its amount;
(c) whether any person is eligible for an assignment of a contributor's retirement pension or its amount; and
(d) whether a penalty should be imposed under Part II of that Act or its amount."
And

"Appeal — time limit
52. (1) An appeal of a decision must be brought to the General Division in the prescribed form and manner and within,
(a) in the case of a decision made under the Employment Insurance Act, 30 days after the day on which it is communicated to the appellant; and
(b) in any other case, 90 days after the day on which the decision is communicated to the appellant.
Extension
(2) The General Division may allow further time within which an appeal may be brought, but in no case may an appeal be brought more than one year after the day on which the decision is communicated to the appellant.
2005, c. 34, ss. 52, 82(E); 2012, c. 19, s. 224.
Dismissal
53. (1) The General Division must summarily dismiss an appeal if it is satisfied that it has no reasonable chance of success. Decision
(2) The General Division must give written reasons for its decision and send copies to the appellant and the Minister or the Commission, as the case may be, and any other party.
Appeal
(3) The appellant may appeal the decision to the Appeal Division.
2005, c. 34, s. 53; 2012, c. 19, s. 224.

Decision
54. (1) The General Division may dismiss the appeal or confirm, rescind or vary a decision of the Minister or the Commission in whole or in part or give the decision that the Minister or the Commission should have given.
Reasons
(2) The General Division must give written reasons for its decision and send copies to the appellant and the Minister or the Commission, as the case may be, and any other party.
2005, c. 34, s. 54; 2012, c. 19, s. 224.

Appeal Division
Appeal
55. Any decision of the General Division may be appealed to the Appeal Division by any person who is the subject of the decision and any other prescribed person.
2005, c. 34, s. 55; 2012, c. 19, s. 224.

Leave
56. (1) An appeal to the Appeal Division may only be brought if leave to appeal is granted.
Exception
(2) Despite subsection (1), no leave is necessary in the case of an appeal brought under subsection 53(3).
2005, c. 34, s. 56; 2012, c. 19, s. 224.

Appeal — time limit
57. (1) An application for leave to appeal must be made to the Appeal Division in the prescribed form and manner and within, (a) in the case of a decision made by the Employment Insurance Section, 30 days after the day on which it is communicated to the appellant; and
(b) in the case of a decision made by the Income Security Section, 90 days after the day on which the decision is communicated to the appellant.
Extension
(2) The Appeal Division may allow further time within which an application for leave to appeal is to be made, but in no case may an application be made more than one year after the day on which the decision is communicated to the appellant.
2005, c. 34, s. 57; 2012, c. 19, s. 224.

Grounds of appeal
58. (1) The only grounds of appeal are that
(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.
Criteria
(2) Leave to appeal is refused if the Appeal Division is satisfied that the appeal has no reasonable chance of success. Decision
(3) The Appeal Division must either grant or refuse leave to appeal.
Reasons
(4) The Appeal Division must give written reasons for its decision to grant or refuse leave and send copies to the appellant and any other party.
Leave granted
(5) If leave to appeal is granted, the application for leave to appeal becomes the notice of appeal and is deemed to have been filed on the day on which the application for leave to appeal was filed.
2005, c. 34, s. 58; 2012, c. 19, s. 224.


XVI. End Note  Go to the top

I hope you find this helpful.

I wish you success in your practice and personal life.

F. Kenneth Walton,
Barrister and Solicitor
Victoria BC
March 2, 2014
Copyright Claimed.