Federal Appeal

Social Welfare

Board did not ask whether applicant capable of pursuing substantially gainful employment

Applicant was injured in motor vehicle accident and suffered soft tissue injuries, depression and myofascial pain syndrome. Applicant took yoga and was employed on minimal part-time basis as yoga instructor well after time of minimum qualifying period. Applicant’s application for disability pension under Canada Pension Plan was denied. Board dismissed appeal finding applicant’s disability was not severe because she was capable of substantially gainful employment. Applicant sought judicial review. Application granted. Social Security Tribunal was directed to grant appeal and to make order granting application for disability benefits. Decision was unreasonable. Board did not apply legal standards. Board latched onto Review Tribunal’s reasons rather than conducting de novo analysis as required. Board did not ask whether applicant was capable of regularly pursuing substantially gainful employment and did not assess whether applicant had severe and prolonged disability. Board failed to examine applicant’s condition at time of her minimum qualifying period and afterward, and looked only at her more recent condition. Board did not assess whether $75 per week was substantially gainful employment or if applicant could obtain other substantially gainful employment. Case was exceptional in that delay was substantial, record showed prejudice would be caused by further delay, and there was sparse evidence in support of outcome reached by board. Benefits were meant to address serious condition. Record showed applicant’s disability was severe at time of minimum qualifying period.

D’Errico v. Canada (Attorney General) (Apr. 10, 2014, F.C.A., Pierre Blais C.J., K. Sharlow J.A., and David Stratas J.A., File No. A-47-13) 239 A.C.W.S. (3d) 532.

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