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Federal Court Decision, Berger v. Canada (Attorney General)

  • December 16, 2019
  • BakerLaw
  • Comments Off on Federal Court Decision, Berger v. Canada (Attorney General)

On June 4, 2019, The Federal Court of Appeal released their decision emphasizing that the definition of disability under the Canada Pension Plan (“CPP”) is “highly restrictive,” and will not apply to all individuals who experience prolonged health challenges if “they are found to be capable regularly of pursuing a substantially gainful occupation.”

A claimant’s application for CPP disability benefits for injuries sustained in a bus was denied in the General Division of the Social Security Tribunal (“SST”). She attempted to appeal this decision in the Appeal Division, but was denied leave to appeal on the grounds that she did not have reasonable chance of success. She proceeded to apply for judicial review, but her application was dismissed.

The Federal Court of Appeal stated that simply because a claimant disagrees with the application of the law to his/her case, it does not mean that the appeal can succeed. The presiding judge determined that the delay in processing her application was “troubling,” but that it did not affect her ability to pursue the matter. She argued that there was bias and that she felt bullied by 1 of the decision makers in the hearing; however, there was no objective evidence for this. She also argued that she was told she had an arguable case by the General Division, and thus it was unreasonable for the Appeal Division to find that her arguments had little chance of success, but the Appeal Division rejected this claim and stated that the legal test for an arguable case for purposes of granting an extension of time is different from the test on an application for leave to appeal from a decision. She argued that she experienced financial hardship and that she received disability tax credit; however, these arguments were found to be irrelevant to the decision. She also argued that what constitutes “substantially gainful employment” is unclear, but the Federal Court stated that their role is not to reweigh evidence that was before the Appeal Division. Her other arguments were also dismissed.

Ultimately, the Court agreed with the Appeal Division’s decision to deny her leave to appeal, and dismissed her application for judicial review.

This case shows that a person who is capable of pursuing a substantially gainful occupation may have their CPP application denied, even if they sustained injuries/disability from an accident.

You can read the decision in full here (link).

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