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Pensions - Canada Pension Plan - Disability (3). Jacob v. Canada (Attorney General)
In Jacob v. Canada (Attorney General) (Ont CA, 2024) the Ontario Court of Appeal dismissed an underinclusive Charter s.15 challenge to the CERB/CRB COVID programs.
Here the court briefly summarizes the federal CPP-D program:(3) The CPP-D program
[18] The CPP-D is an income replacement program within the Canada Pension Plan (“CPP”). It is intended to provide eligible contributors with partial income replacement if they are incapable of working at any substantially gainful occupation due to a “severe and prolonged” disability.
[19] For the purposes of the CPP-D, a “severe” disability is one that renders an individual incapable of regularly pursuing a “substantially gainful occupation”, which was defined in the record as any type of work or occupation that may result in total annual earnings equal to or greater than 12 times the maximum monthly CPP-D amount. A “prolonged” disability is one that is likely to be continued, of indefinite duration or is likely to result in death. The expectation of the program is that a CPP-D recipient likely will never be in a position to return to any substantially gainful occupation.
[20] Recipients of CPP-D are permitted to supplement their benefits with income from employment, up to the “allowable earnings amount” ($6,400 in 2022), without losing their CPP-D benefits. Indeed, many CPP-D beneficiaries avail themselves of the choice to both receive CPP-D and work. The record before the application judge reveals that, in 2019 and 2020, approximately 13%-14% of CPP-D recipients earned income from work below the “allowable earnings amount.”
[21] Philip Martens, one of Canada’s witnesses who worked within the CPP-D Directorate, described CPP-D as “an earnings-related, social insurance program” that provides “partial income replacement” to eligible individuals. He observed, however, that CPP-D is not intended to replace all of a person’s income. Rather, it is “meant to be one component of a person’s income replacement, which can be supplemented by private disability insurance or private investments and savings, or other provincial and territorial program benefits.”
[22] Mr. Martens further noted that because CPP-D is meant to act as a partial income replacement, applicants for CPP-D must have a recent attachment to the workforce at the time they become disabled. The applicant must have made CPP contributions in at least 4 of the last 6 years, or for those with 25 years or more of contributions, in at least 3 of the last 6 years. . Milner v. Canada (Attorney General)
In Milner v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the substantive criteria for federal CPP-D eligibility:[36] The CPP is a compulsory contributory and earnings-related scheme. Three criteria must be satisfied to qualify for a CPP disability pension, pursuant to subsection 42(2), paragraph 44(1)(b), and subsection 44(2) of the Canada Pension Plan, R.S.C. 1985, c. C-8 (CPP Act). An applicant must meet the contributory requirements, be found disabled within the meaning of the CPP Act, and continue to be disabled. In the case at bar, it is the second condition that is at play. It is not in dispute that Ms. Milner meets the contributory requirements, and that the latest date by which she must be found disabled to be entitled to a CPP is December 31, 2003 (MQP).
[37] To be “disabled”, Ms. Milner must prove through medical evidence and with due regard to the “real world context” that she was more likely than not to have a disability that was severe and prolonged on or before the end of her MQP: see Warren v. Canada (Attorney General), 2008 FCA 377 at para. 4; Canada (Attorney General) v. Angell, 2020 FC 1093 at para. 40; Bungay v. Canada (Attorney General), 2011 FCA 47 at para. 8; Villani v. Canada (Attorney General), 2001 FCA 248 at paras. 32 and 38 [Villani]. A disability is severe if it causes Ms. Milner “to be incapable regularly of pursuing any substantially gainful occupation”: CPP Act, subparagraph 42(2)(a)(i); Villani at paras. 44 and 50. Where there is evidence of some capacity for work, disability claimants must show that efforts to obtain and maintain employment have been unsuccessful because of their health conditions. A disability is prolonged if it is “likely to be long, continued and of indefinite duration or likely to result in death”: CPP Act, subparagraph 42(2)(a)(ii); Litke v. Canada (Human Resources and Social Development), 2008 FCA 366 at para. 5. . Milner v. Canada (Attorney General)
In Milner v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considers the SOR applicable to a JR of CPP-D decision that has already gone through the General Division and Appeal Divisions of the Social Security Tribunal (SST) [under s.58(1) of the federal Department of Employment and Social Development Act]:[3] After having carefully reviewed and considered both parties’ records, as well as their written and oral submissions, I have come to the conclusion that the AD did not commit an error in applying subsection 58(1) of the Department of Employment and Social Development Act, S.C. 2005, c. 34 (DESDA), and that both applications should be dismissed. While I sincerely empathize with Ms. Milner’s situation, I cannot find in her favour in the absence of errors that are sufficiently central and significant to render the decisions under review unreasonable. Ms. Milner obviously disagrees with the AD’s assessment of the GD’s findings, and this is perfectly understandable, but it is insufficient for this Court to intervene in its role as a reviewing court.
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III. Analysis
A. The standard of review
[22] The first thing to be emphasized is that the role of this Court, on judicial review, is not to assess the decision of the GD. The focus of our enquiry is the decision of the AD. In performing this role, the jurisdiction of the AD must also be kept in mind. Pursuant to subsection 58(1) of the DESDA, the AD is neither a reviewing court in the judicial sense of the word, nor is it conducting a de novo hearing: Glover v. Canada (Attorney General), 2017 FC 363 at para. 19; Marcia v. Canada (Attorney General), 2016 FC 1367 at para. 34; Canada (Attorney General) v. Jean, 2015 FCA 242 at para. 19. Specifically, the AD can only intervene if it finds that the GD (1) acted unfairly, (2) erred in law (whether or not the error appears on the face of the record), or (3) “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”.
[23] It is by now well established that AD decisions are reviewable on the standard of reasonableness: see, for example, Atkinson v. Canada (Attorney General), 2014 FCA 187 at paras. 24-32; Garvey v. Canada (Attorney General), 2018 FCA 118 at para. 1 [Garvey]; Sjogren v. Canada (Attorney General), 2019 FCA 157 at para. 6; Parks v. Canada (Attorney General), 2020 FCA 91 at para. 8 [Parks]; Stavropoulos v. Canada (Attorney General), 2020 FCA 109 at para. 11; Riccio v. Canada (Attorney General), 2021 FCA 108 at para. 5; Mudie v. Canada (Attorney General), 2021 FCA 239 at para. 18, leave to appeal to the Supreme Court refused, 2022 CanLII 74314 (S.C.C.); Balkanyi v. Canada (Attorney General), 2021 FCA 164 at paras. 12 and 13; Canada (Attorney General) v. Ibrahim, 2023 FCA 204 at para. 13. The question to be decided, therefore, is not whether Ms. Milner was entitled to a disability pension, but whether the AD’s decision to confirm the GD’s decision on the basis of no unfairness, error in law or erroneous finding of fact made in a perverse or capricious manner, and the reasons for so deciding, are reasonable. As the Supreme Court stated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 83 and 84 [Vavilov], the task of a reviewing court is not to decide the issue according to its own yardstick, but to approach the reasons provided by the administrative decision-maker with “respectful attention”, with a view to understanding both the chain of analysis and the conclusion. Needless to say, the threshold is high to show that a decision is unreasonable.
[24] As for questions of procedural fairness, they must be reviewed on the correctness standard: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 43; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para. 54. Accordingly, this Court owes no deference to the AD and must determine whether the AD itself breached Ms. Milner’s right to procedural fairness. On the other hand, this Court must also decide whether the AD acted reasonably in refusing to find that the GD acted unfairly. . Milner v. Canada (Attorney General)
In Milner v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal illustrates the degree of complexity (and resultant inevitable frustration) that can arise procedurally from a CPP-D application:I. Facts
[4] Ms. Milner is a former insurance agent and mediator. She applied for CPP benefits on January 31, 2013, claiming that she was no longer able to work as of January 2003 due to peripheral vascular disease (PVD), ischemic colitis, lower back arthritis, neuropathic pain and premature ventricular contractions of her heart (Questionnaire for Disability Benefits, Respondent’s Record (A-178-20), at p. 818). The Minister denied her application twice – initially, and on reconsideration (Respondent’s Record (A-178-20), at pp. 789-795 and 800-805).
[5] Ms. Milner appealed the Minister’s reconsideration decision to the GD. After conducting a hearing by written questions and answers, the GD dismissed her appeal (Respondent’s Record (A-178-20), at p. 726). However, the AD allowed the appeal on February 22, 2018 and returned the matter to the GD for a new hearing on the merits, due to a violation of procedural fairness resulting from the failure to conduct an oral hearing (Respondent’s Record (A-178-20), at p. 515).
[6] On August 22, 2018, a different member of the GD dismissed Ms. Milner’s appeal after holding a hearing by way of videoconference. The GD determined that Ms. Milner had not established that she suffered from a severe disability on or before the end of her MQP, which was December 31, 2003, based on her contributions to the CPP. The GD also found that many of Ms. Milner’s conditions arose after her MQP, that the medical evidence and her testimony did not establish a disability that was severe as of December 31, 2003, and that her personal characteristics did not adversely affect her employability at the time of her MQP (Respondent’s Record (A-178-20), at p. 411).
[7] Although Ms. Milner was in a “fair amount of pain” and exhibited symptoms before the MQP (such as leg, back, shoulder and temporomandibular joint pain, an injured left thumb, and grief), the GD dismissed their significance on the basis that there was insufficient medical evidence, particularly from Ms. Milner’s family physician, which was the only evidence that was contemporaneous with the MQP, to prove their severity. The GD also relied on Ms. Milner’s family physician’s evidence to infer that these symptoms before the end of her MQP were not significant contributors to her main disability.
[8] Further, the GD dismissed the significance of the symptoms before the end of her MQP on the basis that the evidence was insufficient, subjective and unreliable. For example, the GD found general inconsistencies with dates and found that Ms. Milner stopped her work positions at the YMCA and at an insurance company for reasons other than medical. Finally, the GD found that Ms. Milner’s personal characteristics did not adversely affect her employability during the MQP.
[9] While appealing the August 2018 decision, Ms. Milner filed an application to rescind or amend that decision in August of 2019. She filed with her application 6 documents which she argued established new material facts: (a) a hospital emergency record describing her injuries from a motor vehicle accident in January 2003; (b) a family doctor report from July 2019; (c) prescription records from October 2008 to November 2016; (d) blood test results from 1988 to 2018; (e) a gastroscopy report from October 2018 suggesting a prior infection; and (f) an undated mental health narrative, in which she explained that she was unable to discover the above-mentioned medical documents in time for the hearing because she was suffering from mental health issues at the time leading up to the hearing.
[10] On October 26, 2019, the GD refused to rescind or amend its earlier decision, because in its view, Ms. Milner did not establish new material facts within the meaning of paragraph 66(1)(b) of the DESDA, as it read at the relevant time (Respondent’s Record (A-178-20), at p. 278). The GD found that none of the evidence submitted was new information that was not discoverable at the time of the hearing and material in that it could be reasonably expected to affect the outcome of Ms. Milner’s claim.
[11] Ms. Milner then sought leave to appeal this new GD decision, which the AD granted on the basis that she raised at least two arguments having a reasonable chance of success on appeal (Respondent’s Record (A-178-20), at p. 248). Specifically, the AD found that Ms. Milner had an arguable case that the GD erred (a) when it found that information about her childhood H. Pylori infection could not have reasonably affected the outcome, and (b) when it suggested that the cost of holding another hearing on the merits was a factor in its decision not to admit new information.
[12] At the merits stage, the AD dismissed Ms. Milner’s appeal on June 10, 2020, being of the view that there was no basis to intervene because the GD did not commit a reviewable error within the meaning of subsection 58(1) of DESDA (Respondent’s Record (A-178-20), at p. 17).
[13] With respect to Ms. Milner’s submission that she was not well enough to obtain medical records documenting her mental health issues at the time of the July 2018 GD hearing, the AD found that Ms. Milner and her lawyer were aware of additional potentially relevant medical records but chose not to request additional time to obtain them. While Ms. Milner may have been unaware that a postponement was possible, her counsel was presumed to be competent and must have known that such requests are routinely made in adjudicative forums. The AD found that the GD did not act unfairly by relying on Ms. Milner’s counsel’s willingness to proceed with the hearing, even if she now claims that her lawyer made that decision against her informed consent. Nor did the GD err by not taking at face value Ms. Milner’s claim that her mental health issues prevented her from realizing the extent of her problems.
[14] The AD also found that the GD did not err when it determined that Ms. Milner’s prescription records and blood test results, which predated the GD hearing, were discoverable and could have been adduced before the hearing. It also concluded that the emergency room report from 2003 documenting a visit two weeks after a motor vehicle accident and the family doctor report dated 2019 summarizing her earlier medical history were discoverable and contained information that was already before the GD when it determined that she was not disabled at the relevant time. It was reasonable to expect that Ms. Milner would have at least some idea of the treatment she received and where to obtain information; if she did not have the knowledge or capacity to obtain it herself, she had a lawyer who was presumably hired to help her gather the evidence in support of her case.
[15] The AD further found that the GD did not err in concluding that the report from Ms. Milner’s gastroenterologist, which stated that she was “likely” infected with H. Pylori from childhood, was not material because it saw no evidence that the bacteria caused any disabling symptoms during the MQP. The AD stressed that new facts are material only if they can be reasonably expected to affect the outcome of a decision. Even if the GD may have failed to recognize the link between H. Pylori and PVD, it could nevertheless focus on the fact that Ms. Milner had not shown that her PVD symptoms prevented her from working before the end of the MQP.
[16] Finally, the AD found that the GD struck the appropriate balance between efficiency and fairness in deciding to bifurcate the new facts hearing. Far from suggesting that the GD’s decision to defer the arguments on the merits to a second hearing was driven by cost considerations, the AD found that the GD was instead concerned with working out the most logical and efficient way to proceed.
[17] As for the appeal of the August 2018 GD decision on the merits (File A-16-21), the AD dismissed the appeal on December 16, 2020 (Respondent’s Record (A-16-21), at p. 17). The AD first determined that the GD did not breach procedural fairness when it held a videoconference hearing, in accordance with her stated preference for a videoconference hearing. It further found that she was not treated unfairly on the basis that an in-person hearing could have allowed the GD to notice that she was feeling unwell; she was represented by an experienced lawyer who could have asked for a delay or an adjournment.
[18] The AD also found no error with the GD’s assessment of the testimonies from Ms. Milner’s aunt and from her former employer. It determined that it was not its role to second-guess the GD’s assessment in the absence of an error, and that the GD’s findings were supported by the evidence before it. The AD also found that the GD did not err by giving some weight to Ms. Milner’s volunteer work. Even if she had given up most of her volunteer activities by the end of her MQP, the GD correctly inferred a degree of functionality, among other factors, from Ms. Milner’s “fairly robust volunteer schedule” during a time where she “claims to have been increasingly debilitated” (AD (A-16-21), Respondent’s Record (A-16-21), at pp. 25-27, at paras. 31-35).
[19] As for Ms. Milner’s painkiller consumption, the AD further found no error with the GD’s findings that there was no medical evidence that she was taking painkillers for generalized pain before the end of her MQP. Contrary to Ms. Milner’s submissions, the AD saw no indication that the GD mischaracterized her doctor’s notes or selectively considered the material before it. The AD similarly found that it could not overturn the decision of the GD simply because Ms. Milner disagrees with the weight given to her grief following her cousin’s death. To the extent that the GD did not base its decision on a factual error, it was entitled to consider evidence as it saw fit. Finally, the AD found that the GD did not err in relying on Ms. Milner’s family doctor’s notes or drawing inferences from these notes, and saw no indication that it made illogical or unsupportable presumptions along the way.
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B. Are the AD decisions reasonable?
(1) A-178-20
[25] Pursuant to paragraph 66(1)(b) of the DESDA, as it read at the relevant time, the SST could rescind or amend a decision if it was presented with a new material fact that was not discoverable at the time of the hearing with the exercise of reasonable diligence. This is a narrow exception to the principle that SST decisions are binding and final, subject only to statutory appeal or judicial review: Canada (Attorney General) v. Jagpal, 2008 FCA 38 at para. 27. A new fact will be “material” if it could reasonably be expected to have affected the outcome of the hearing: Kent v. Canada (Attorney General), 2004 FCA 420 at para. 34 [Kent]. This is a question of mixed fact and law (see Mazzotta v. Canada (Attorney General), 2007 FCA 297 at para. 37 [Mazzotta]), and in the present case, a fact will be material if it is related to Ms. Milner’s capacity as of December 31, 2003 (the end of her MQP). As for discoverability, Ms. Milner must show that the new fact could not have been discovered “with the exercise of reasonable diligence” at the time of the hearing. This has been characterized as a question of fact (Mazzotta, at para. 37), or as a highly fact-driven question of mixed fact and law (Carepa v. Canada (Minister of Social Development), 2006 FC 1319 at paras. 17 and 18, citing Taylor v. Canada (Minister of Human Resources Development), 2005 FCA 293 at para. 12 [Taylor]). In a case like this one, discoverability will usually involve knowledge of the document, steps taken to discover it, and the justification as to why it was not produced at the hearing.
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