Federal Appeal


Federal and provincial pension plans

Federal pension plans

Analysis to establish severe disability requires analysis of both personal characteristics and duty to mitigate

Applicant S’s request for Canada Pension Plan disability benefits was denied by Minister and affirmed on reconsideration. Appeal to General Division was dismissed on grounds evidence did not establish that he lacked capacity to pursue sedentary, non-physically demanding employment and had failed to do so and did not follow medical advice or provide reasonable explanation for failure to do so, so disability was not severe. Appeal Division dismissed further appeal holding that although General Division erred in applying test for severity as it did not analyze how applicant’s personal characteristics impacted his capacity to pursue any substantially gainful occupation in a “real world” context, question was moot as he had failed to follow medical advice. S applied for judicial review. Application dismissed. G not entitled to lead new evidence on application for judicial review. New evidence tendered provided additional information available at hearing before General Division and that went to merits. No procedural unfairness concerning failure to have interpreter at General Division hearing. Applicant has duty to raise issues of procedural fairness at earliest opportunity. G was represented by fluent paralegal and chose not to request interpreter although informed of his right to one. Analysis to establish severe disability under s. 42(2)(a) of Canada Pension Plan Act requires analysis of both personal characteristics and duty to mitigate. If either aspect fails, severe disability not established. Given that Appeal Division’s finding that applicant did not meet duty to mitigate, reasonable to find that any error by General Division in adequately considering personal characteristics was moot. Decision was reasonable.

Sharma v. Canada (Attorney General) (2018), 2018 CarswellNat 653, 2018 FCA 48, David Stratas J.A., David G. Near J.A., and J. Woods J.A. (F.C.A.).

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