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The Definition of Total Disability

A “Disability” is required to be eligible for CPP Disability Benefits.  What is the legal definition of “Disability”?

About Canada Pension Plan Disability Benefits

Before an applicant can claim CPP disability pension entitlement, the claimant must pursuant to Section 42(2)(a) of the Canada Pension Act satisfy the Review Tribunal that the disabled person was suffering from “a severe mental or physical disability”, meaning that he or she was incapable regularly of pursuing any substantially gainful occupation for a prolonged time.

Section 42(2)(a) says in part:

When person deemed disabled

(2) For the purposes of this Act,

(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,

(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

(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

(b) a person shall be deemed to have become or to have ceased to be disabled at such time as is determined in the prescribed manner to be the time when the person became or ceased to be, as the case may be, disabled, but in no case shall a person be deemed to have become disabled earlier than fifteen months before the time of the making of any application in respect of which the determination is made.

Each one of these words have their own meaning which must be weighed by the Tribunal in the circumstances of the claimant’s case.

Villani Case

The Villani Case was decided by the Federal Court of Appeal on August 2001. Prior to the Villani decision there were many decisions of the Pension Appeal Board that held that a person had to be totally disabled before a disability pension could be granted.

There were also decisions that advocated the use of the ordinary meaning of each and every word in Section 42(2)(a) of the Act in order to introduce an air of reality and a concept of employability into the Board’s deliberations.

The Barlow case was a decision which held that a claimant did not have to prove total disability. The claimant did have to prove that he or she was incapable regularly of pursuing any substantial gainful occupation.

The Villani case, sided with the Barlow interpretation of the case and rejected the “total disability” approach. The court stated as follows:

Accordingly, Section 42(2)(a)(i) of the Plan should be given a generous construction …….. However, the meaning of the words used in that provision must be interpreted in a large and liberal manner and any ambiguity flowing from those words should be resolved in favor of a claimant for disability benefits.

This analysis of Section 42(2)(a)(i) strongly suggests a legislative intention to apply the severity requirement in a “real world” context requiring that a claimant be incapable regularly of pursuing any substantially gainful occupation is quite different from requiring that a claimant be incapable at all times of pursuing any conceivable occupation.

Mr. Justice Isaac said in the Villani case:

…it follows from this, that the hypothetical occupations which a decision maker must consider cannot be divorced from the particular circumstances of the applicant, such as age, education, education level, language proficiency and past work and life experience.

The result of this decision does away with the old reasoning of the Board decisions that personal traits are not relevant in a “real world” assessment of the work capacity of a claimant. Judge Isaac continues as follows:

…It is evident, to my mind, that the Board in this case has effectively read out of the severity definition the word “regularly,” “substantially,” and “gainful.” In this way, the Board has reduced the legal text to the following: is the applicant incapable of pursuing any occupation? This approximates the “total” disability test eschewed by the drafters of the Plan. Indeed, the Board’s repeated emphasis on the word “any” appears to have been a contributing factor in its misinterpretation of the statutory test of severity.

Justice Isaac goes on to state that:

Decision makers ignore the language of the statue by concluding, for example, that since an applicant is capable of doing certain household chores or is strictly capable of sitting for short period 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 Section 42(2)(a)(i) of the Plan.

Justice Isaac goes on to state however that:

Claimants still must be able to demonstrate that they suffer from a “serious and prolonged disability, that renders them “incapable regularly of pursuing any substantially gainful occupation.” Medical evidence will still be needed as well as evidence of employment efforts and possibilities.

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