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Pensions - CPP-Disability - Remedies. Ahsan v. Canada (Attorney General)
In Ahsan v. Canada (Attorney General) (Fed CA, 2025) the Federal Court of Appeal dismissed a JR, this from a finding of the Appeal Division of the Social Security Tribunal that the applicant's disability "was neither severe nor prolonged" under CPP-D legislation.
In these quotes the court addressed a self-described 'problematic' [para 25] remedial situation. The case involved a CPP-D retroactive disentitlement going back to 2009 and reflecting eligibility with changing criteria over two different periods (2009-2013 and 2014-2016) [the relevant law changed in 2014]. In assessing the first period (2009-2013), where the Appeal Division found General Division error (but not prejudice) and the court agrees with the reasoning that the disentitlement was justified, it then turns to the second period (2014-2016) where it finds 'live' (my term) prejudicial error [para 26].
However, the court reasons, given the just-preceding justified disentitlement (in 2013), the court reasons that to justify eligibility over 2014-2016 the applicant "would have to file a new application with the Minister" - now some 12 years after the fact:(2) The years 2014 to 2016
[24] With respect to the years 2014 to 2016, when the section 68.1 threshold was in force, the Appeal Division declared itself satisfied that Mr. Ahsan’s "“reported earnings from 2014 onward were substantially gainful”". The Appeal Division wrote that Mr. Ahsan’s employment income in 2014 was above the section 68.1 threshold, and in the next two years, his income was below that threshold, which was "“consistent with the pattern established in previous years”": Appeal Division’s decision at para. 35.
[25] This is problematic.
[26] Subparagraph 42(2)(a)(i) requires a determination of whether the person is capable regularly of pursuing any substantially gainful occupation, not a determination of whether the person "“reported”" substantially gainful earnings. Moreover, it is difficult to gather from the Appeal Division’s reasons how the Appeal Division arrived at its conclusion. How can the section 68.1 threshold not being met in two of the three years result in "“substantially gainful”" earnings? And how is this consistent with the pattern established in previous years? This lack of justification is particularly troublesome given that subsection 68.1(2), by explaining how to calculate the threshold down to the nearest cent, suggests that the 68.1 threshold is a bright-line rule to determine what "“substantially gainful”" means.
[27] The Appeal Division’s application of the "“substantially gainful”" concept for the years 2014 to 2016 tips the scale in favour of a conclusion that the Appeal Division’s decision for these years is unreasonable in that it does not bear the hallmarks of reasonableness—justification, transparency, and intelligibility. Also, it is not based on an internally coherent reasoning and justified in relation to the legal and factual constraints bearing on it: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 99, 102–07.
[28] This conclusion of unreasonableness does not warrant granting the application for judicial review and remitting the matter to the Appeal Division for the years 2014 to 2016, because remitting here would serve no useful purpose: Vavilov at paras. 141–42. From the moment this Court confirms the reasonableness of the Appeal Division’s determination that Mr. Ahsan ceased to be disabled from April 2009 to the end of 2013, subsection 70(1) of the Canada Pension Plan applies, with the consequence that the disability pension ceased to be payable to Mr. Ahsan starting May 2009. To have his disability pension reinstated for the years 2014 to 2016, Mr. Ahsan would have to file a new application with the Minister.
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