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Severe Criterion
- An analysis of the severe criterion must take into account the particular circumstances of the applicant including age, education level, language proficiency and past work and life experience (Villani v. Canada (A.G.), 2001 FCA 248);
- Decisions makers ignore the language of the statute when concluding that, since an applicant is capable of doing certain household chores, he or she is therefore capable of performing or engaging in some kind of unspecified sedentary occupation (Villani v. Canada (A.G.), 2001 FCA 248).
http://decisions.fca-caf.gc.ca/en/2001/2001fca248/2001fca248.html
- The word “regularly” as set out in the definition of severe means that the applicant must be capable of coming to work as often as is necessary. Predictability is the essence. (Chandler v. MHRD (November 25, 1996), CP 4040 (PAB)).
http://www.pab-cap.gc.ca/english/docs/1990-98/cp04040-e.pdf
- To establish a severe disability, applicants must not only show a serious health problem, but where there is evidence of work capacity, must also show that effort at obtaining and maintaining employment has been unsuccessful by reason of the health condition (Inclima v. Canada (A.G.), 2003 FCA 117).
http://decisions.fca-caf.gc.ca/en/2003/2003fca117/2003fca117.html
- To be successful, an applicant for a disability pension is obligated to abide by and submit to treatment recommendations and, if this is not done, the applicant must establish the reasonableness of his/her non-compliance (Bulger v. MHRD (May 18, 2000), CP 9164 (PAB)).
http://www.pab-cap.gc.ca/english/docs/2000/CP09164-e.pdf
Prolonged Criterion
- “Long continued” and “indefinite duration” must be read together and given a combined meaning. A disability period of one and one-half to two years may be long continued, however, medical advice that the individual would be able to return to work within a reasonably precise time period did not indicate an indefinite duration (MSD v. W.S. (September 11, 2007), CP 24561 (PAB));
http://www.pab-cap.gc.ca/english/docs/2007/cp24561e.web.pdf
- It is the expectation of being able to return to work not the time required for recovery that should be the focus of the inquiry (MHRD v. Scott (July 10, 1998), V. 5741 (PAB));
http://www.pab-cap.gc.ca/english/docs/1990-98/CP05741-e.pdf
- The purpose of the CPP disability benefit is to provide income to those who are disabled from working on a long-term basis, not to tide claimants over a temporary period where a medical condition prevents them from working. A disability cannot be “prolonged” unless it is determined to be of “indefinite duration” (Canada (MHRD) v. Henderson, 2005 FCA 309)).
http://decisions.fca-caf.gc.ca/en/2005/2005fca309/2005fca309.html
Decisions re Substantially Gainful:
http://www.pab-cap.gc.ca/english/docs/2009/cp25905e.web.pdf
http://www.pab-cap.gc.ca/english/docs/2007/cp24266e.web.pdf
http://www.pab-cap.gc.ca/english/docs/2007/cp25136e.web.pdf
http://www.pab-cap.gc.ca/english/docs/2007/cp24143-e.pdf
http://www.pab-cap.gc.ca/english/docs/2003/cp18772-e.pdf
http://www.pab-cap.gc.ca/english/docs/2006/cp23908.rea.doc
http://www.pab-cap.gc.ca/english/docs/2000/CP09448-e.pdf
http://www.pab-cap.gc.ca/english/docs/1990-98/CP02794-e.pdf
The Inclima Decision (making efforts at obtaining and maintaining employment):
http://decisions.fca-caf.gc.ca/en/2003/2003fca117/2003fca117.html
Pursuing Treatment Options
Case law is very clear that applicants are only obligated to pursue treatments that are recommended to them by their health care professionals. See, for example:
http://www.pab-cap.gc.ca/english/docs/2000/CP09164-e.pdf
http://www.pab-cap.gc.ca/english/docs/1990-98/cp04719-e.pdf
There is a further qualifier to this principle. A person can choose not to pursue a treatment that has been recommended to them and still be eligible for the disability benefit so long as that person can show that his/her decision not to pursue that treatment was reasonable:
http://www.pab-cap.gc.ca/english/docs/2005/cp22759-e.pdf
http://www.pab-cap.gc.ca/english/docs/1990-98/cp03752-e.pdf
