Pensions - Canada Pension Plan - Disability
. Balkanyi v. Canada (Attorney General)
In Balkanyi v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal decided a judicial review application against a CPP-D denial. This seems to be one in a series of favourable claimant cases lately:
VI. Analysis. Riccio v. Canada (Attorney General)
 A person is considered to be disabled under the CPP if they are determined to have a severe and prolonged mental or physical disability. "“Severe”" and "“prolonged”" are defined in subparagraphs 42(2)(a)(i) and (ii) of the CPP. Paragraph 42(2)(a) reads as follows:
"When person deemed disabled " Only subparagraph 42(2)(a)(i) is at issue in this application for judicial review. According to Villani, that provision is to be construed generously, albeit within the limits of the language it contains, and the test for severity requires that each word in the definition, including the word "“regularly”", be treated as contributing something to the statutory requirement (Villani at paras. 29, 44). The meaning of those words "“must be interpreted in a large and liberal manner, and any ambiguity flowing from [them] should be resolved in favour of a claimant for disability benefits”" (Villani at para. 29).
"Personne déclarée invalide"" "
"(2) For the purposes of this Act, "
"(2)"" Pour l’application de la présente loi : "
"(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, "
"a"")"" une personne n’est considérée comme invalide que si elle est déclarée, de la manière prescrite, atteinte d’une invalidité physique ou mentale grave et prolongée, et pour l’application du présent alinéa : "
"(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 "
"(i)"" une invalidité n’est grave que si elle rend la personne à laquelle se rapporte la déclaration régulièrement incapable de détenir une occupation véritablement rémunératrice, "
"(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; and "
"(ii)"" une invalidité n’est prolongée que si elle est déclarée, de la manière prescrite, devoir vraisemblablement durer pendant une période longue, continue et indéfinie ou devoir entraîner vraisemblablement le décès; "
 In Villani, this Court also stated the importance of applying the severity requirement set out in subparagraph 42(2)(a)(i) in a "“real world”" context. This necessitates taking into consideration a claimant’s particular circumstances, including age, education level, language proficiency, and past work and life experience (Villani at paras. 38-39; see also, e.g., D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167 at para. 4 (D’Errico)).
 Where there is evidence of work capacity, a claimant must also demonstrate that efforts to obtain and maintain employment have been unsuccessful due to their health condition (Inclima v. Canada (Attorney General), 2003 FCA 117, 2003 CarswellNat 579 (WL Can) at para. 3; see also D’Errico at para. 4). Put differently, a finding of residual work capacity "“is a prerequisite for the relevance of efforts to obtain alternative employment”" (Canada (Attorney General) v. Poirier, 2020 FCA 98, 2020 CarswellNat 1669 (WL Can) at para. 17).
 Before this Court, the applicant asserts that the definition of "“severe”" adopted to deny her application is not defensible in respect of the law as both the General Division and the Appeal Division failed to consider whether her incapacity to pursue a substantially gainful occupation was "“regular”". She contends that the Appeal Division, and the General Division before it, failed to adopt the "“real world”" approach mandated by Villani in assessing her capacity to regularly pursue any substantially gainful occupation.
 The applicant further contends that the General Division fundamentally misapprehended the evidence as to her work capacity and that the Appeal Division erred in not interfering with the General Division’s findings in that regard. In particular, the applicant submits that there was no evidence before the General Division, including in the occupational therapists’ reports, supporting a finding that by December 31, 2017, she had any work capacity. The only evidence that might have supported such a finding, she says, was purely prospective in the sense that it pointed to the possibility that her situation might improve to a point where she could contemplate working again.
 As indicated previously, capacity to regularly pursue any truly remunerative occupation is not to be assessed in the abstract, but in light of all of the claimant’s circumstances, both in terms of background and medical condition. In Villani, the Court warned CPP decision makers against ignoring the language of the statute "“by concluding, for example, that since an applicant is capable of doing certain household chores or is, strictly speaking, capable of sitting for short periods of time, he or she is therefore capable in theory of performing or engaging in some kind of unspecified sedentary occupation which qualifies as ‘any’ occupation within the meaning of subparagraph 42(2)(a)(i) of the [CPP]”" (Villani at para. 47).
 This, in my view, may well be what happened here.
 The applicant’s evidence, as described by the General Division, can be summarized as follows:
a) she "“does not know what each day will be like”"; The General Division stated that the applicant’s view of how her condition affects her ability to work was important (General Division’s decision at para. 16) but it preferred the occupational therapists’ reports which it found "“more reliable than the [applicant]’s memory”" (General Division’s decision at para. 31). As mentioned earlier, the General Division gave more weight to these reports than to those of the applicant’s doctors. The applicant’s doctors were of the opinion that the applicant had been rendered completely disabled by the residual adverse effects of the injuries sustained at the time of her car accident.
b) she "“can sit for one or two hours, but then her head gets heavy and she has to lie down”";
c) she "“can be up and functioning for one to three hours and then she needs to rest”";
d) she "“cannot lift her arm above her shoulder, and she cannot do any lifting of heavy items”";
e) at night, she "“has difficulty sleeping and feels pressure on her shoulder”" with the result that "“[s]ometimes she gets five hours of sleep and sometimes she only gets two.”"
f) she "“recalled that her condition in 2017 is the same as 2019”"
(See the General Division’s decision at para. 11)
 The Appeal Division acknowledged that a person’s incapacity must be "“regular”" for them to be disabled within the meaning of the CPP. However, it disagreed with the applicant and held that the General Division had considered this component of the disability simply because the General Division had noted the applicant’s testimony "“that her condition varies from day to day, and that she could sit for one to two hours, walk and stand for 20 minutes”", and "“[manage] her pain with Tylenol when needed, herbal medications, and creams for her shoulder.”" The Appeal Division did not provide any analysis as to how the General Division’s references to (i) the applicant’s testimony on the variability of her condition, as well as on her ability to sit for one to two hours, walk and stand for 20 minutes, and (ii) the fact that the applicant managed her pain with Tylenol when needed, could be connected to the General Division’s finding that the applicant had some capacity for work.
 Absent any analysis explaining how this evidence supports the conclusion that the applicant had some work capacity, there is no foundation for the Appeal Division’s determination that the General Division had actually considered whether the applicant’s incapacity to work was regular. This lack of analysis indicates that both the Appeal Division and the General Division may well have misapprehended the applicable legal test and effectively read out the term "“regularly”" from the statutory definition of "“disabled”".
 Again, each word in subparagraph 42(2)(a)(i) of the CPP must be given meaning (Villani at para. 38). This signals Parliament’s view that a disability is severe if it "“renders an applicant incapable of pursuing with consistent frequency any truly remunerative occupation”" (Villani at para. 38 (emphasis added)).
 In Villani, the Court considered the dictionary definitions of the words "“regular”" ("“usual, standard or customary”") and "“regularly”" ("“at regular intervals or times”") (Villani at para. 37, citing Patricia Valerie Barlow v. Minister of Human Resources Development, CP 07017 (November 22, 1999)). It then emphasized that subparagraph 42(2)(a)(i) of the CPP does not require that an applicant be "“incapable at all times of pursuing any conceivable occupation”", but that they be "“incapable regularly of pursuing any substantially gainful occupation”" (Villani at para. 38 (emphasis in the original); see also Atkinson v. Canada (Attorney General), 2014 FCA 187,  3 F.C.R. 461 at para. 37 (Atkinson). The Court also cautioned, as we have seen, against findings that do not give weight to each word of the statutory definition of "“severe”", and which conclude for example that because a claimant can sit for short periods of time, they are capable of sedentary work (Villani at paras. 47-48).
 In Atkinson, this Court reiterated what it had affirmed in Canada (Minister of Human Resources Development) v. Scott, 2003 FCA 34, 300 N.R. 136, namely that it is the incapacity to work that must be "“regular”", not the employment (Atkinson at para. 37, referring to Scott at para. 7). It also noted that predictability is the essence of regularity (Atkinson at para. 38), a statement echoed in Riccio, where the Court held that the term "“regularly”" reflects the reality that employees, be they full-time or part-time, "“are expected to attend work on the dates and times that they are scheduled to do so”" (Riccio at para. 23).
 In the present matter, the paucity of the Appeal Division’s reasons regarding whether the General Division had considered if the applicant’s incapacity to work was regular reveals the same disconnect that was found in Riccio. To borrow from the language of Riccio at paragraph 22, the Appeal Division "“leaped to the conclusion, without any explanation,”" that the General Division had actually considered whether the applicant’s incapacity to work was regular. This cannot, in my view, be endorsed in light of the "“culture of justification”" propounded in Vavilov (see Vavilov at para. 14; see also Canada (Attorney General) v. Kattenburg, 2021 FCA 86, 2021 CarswellNat 1291 (WL Can) at para. 9).
 For the foregoing reasons, I find the Appeal Division’s decision to be unreasonable. It lacks transparency, intelligibility, and justification, making it impossible to discern within it a rational chain of analysis that is justified in relation to the facts and the law that constrained the Appeal Division.
In Riccio v. Canada (Attorney General) (Fed CA, 2021) the Federal Court of Appeal allowed a CPP-D (disability) judicial review application on a practical ("real world") interpretation:
 For the purpose of the CPP, a person is deemed disabled if, under subparagraph 42(2)(a)(i), that person is determined to have a severe mental or physical disability, and as a result of the disability, they are "“incapable regularly of pursuing any substantially gainful occupation”". Once it is determined that the disability is severe, a further analysis under subparagraph 42(2)(a)(ii) is required to determine whether it is prolonged.. Parks v. Canada (Attorney General)
 Here, the only question the Appeal Division considered was whether the applicant’s functional limitations resulted in him being incapable regularly of pursuing any substantially gainful occupation under subparagraph 42(2)(a)(i).
 As noted above, some years ago, our Court in Villani directed the decision-maker faced with this question to take a "“real world”" approach, such that the applicant’s particular circumstances must be considered (Villani at paras. 38 and 39).
 Applying the jurisprudence to the matter now before this Court, I would agree with all of the applicant’s submissions and I am of the view that the AD Decision is unreasonable.
 In the case before us, the Appeal Division found that the applicant could no longer perform his former duties and work full-time (AD Decision, paras. 53, 56-57). Further, the evidence accepted by the Appeal Division was that the applicant was unable to reliably attend a job every day because of his physical and emotional limitations. Those limitations included a limited ability to sit and stand and an inability to get out of bed some days (AD Decision, para. 55).
 Nonetheless, the Appeal Division leaped to the conclusion, without any explanation, that the applicant had some residual capacity for work. The Appeal Division did not provide any analysis linking the evidence it accepted to its conclusions that the applicant is capable of "“regularly”" pursuing any substantially gainful occupation. The lack of analysis renders the AD Decision unreasonable because we are unable to understand how the decision-maker came to her conclusion. In other words, the reasons for the AD Decision fail to reveal a rational chain of analysis (Vavilov at para. 103).
 Further, I am of the view that the AD Decision is unreasonable because it fails to take a "“real world”" approach, despite saying that it would. The Appeal Division properly articulated the test set out in Villani, yet, the reasons it provided do not reflect such an approach. For instance, the AD Decision found that the applicant could have looked for a part-time work opportunity within his limitations. However, the evidence proffered by the applicant is that because of his medical conditions, he is unable to reliably attend work; even part-time employees are expected to attend work on the dates and times that they are scheduled to do so. The use of the term "“regularly”" in the text of subparagraph 42(2)(a)(i) reflects this reality. Again, there is a disconnect between the evidence and the conclusion reached by the Appeal Division.
In Parks v. Canada (Attorney General) (Fed CA, 2020) the Federal Court of Appeal heard a judicial review application from an appeal to the Appeal Division of the Social Security Tribunal as to whether the applicant was eligible for a CPP-disability pension:
 The applicant submits that the Appeal Division erred in law by failing to consider the "“real world”" circumstances in which the applicant found herself and by failing to apply the test for disability set out in s. 42(2)(a)(i) CPP, which requires that a person who is disabled be incapable regularly of pursuing any substantially gainful occupation. The applicant submits that the Appeal Division should have applied a “"material duties"” test or a “"substantial disability"” test. The applicant further submits that the Appeal Division erred in requiring her to demonstrate that she had made efforts to obtain and sustain employment and that such efforts were unsuccessful because of her health. The applicant additionally submits that the Appeal Division erred in improperly weighing several elements of the evidence, including a report by Dr. Brennan dated October 5, 2017, a report by Dr. Finnamore, and activities undertaken by the applicant including travel to Alberta and the jet ski accident.
 At the hearing in this matter, counsel for the applicant submitted that the Appeal Division made a serious error when it wrote, at paragraph 26(h) of its decision, that it was not disputed that "“the Claimant's family physician did not state that the Claimant was unable to work until after the MQP.”" The applicant submitted that this statement was not supported by any of the medical evidence before the Appeal Division. The applicant suggested that this Court should review all of the medical evidence and determine that the Appeal Divison’s conclusion could not be reasonable.
 It is not the role of this Court to re-hear and re-weigh the evidence in this matter. However, even a cursory review of the medical evidence makes clear that the position of the applicant's family physician, Dr. Brennan, was not unequivocal until her letter of October 5, 2017 (Applicant’s Book of Authorities, vol. 1, page 280). The MQP ended on December 31, 2016. Consistent with the finding of the Appeal Division at paragraph 26(h) of its decision, Dr. Brennan’s letter of October 5, 2017 was written after the end of the MQP. At page 944 of the Applicant’s Book of Authorities, vol.1, Dr. Brennan seems to agree that as of November, 2015, the applicant was not disabled within the meaning of the CPP disability provisions. In my view, the Appeal Division considered all of the evidence in this matter as it was required to do. Its decision cannot be said to be unreasonable in this regard.
 Counsel for the applicant further submitted that the General Division erroneously made, and the Appeal Division erroneously relied on, findings regarding the applicant’s credibility. At paragraph 61 of its decision, the General Division found the applicant’s travels between New Brunswick and Alberta in the fall of 2015 and her attempt to ride a jet ski in August 2016 raised concerns about the credibility of the applicant’s testimony that she was unable to sit or stand for more than ten to fifteen minutes without pain. The Appeal Division held at paragraph 23 of its decision that the General Division had not erred in discounting the applicant’s subjective reports about her condition.
 Counsel for the applicant argued that whereas the General Division was entitled to consider the applicant’s travel and jet ski attempt when determining her ability to function, it was not entitled to make adverse assessments of credibility since the applicant had been forthright about her activities. I am unconvinced that this constitutes an error. In my view, the General Division was properly weighing the available evidence, as is its role. The General Division was entitled to accord minimal or no weight to the applicant’s testimony, and the Appeal Division was entitled to agree.
 Despite the able arguments put forward by counsel for the applicant, I am not persuaded that the Appeal Division’s analysis or conclusion was unreasonable. The Appeal Division applied the appropriate legal test, and did so reasonably. Its chain of analysis is rational and internally coherent and is defensible in light of both the facts and the law.