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Canada Pension Plan

. Parks v. Canada (Attorney General)

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:
[9] 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.

[10] 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.

[11] 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.

[12] 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.

[13] 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.

[14] 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.


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