AG v Minister of Employment and Social Development

AG v Minister of Employment and Social Development Collection Canada Pension Plan (CPP) disability Decision date 2025-08-21 Neutral citation 2025 SST 892 Reference number AD-25-292 Member Neil Nawaz Division Appeal Division Decision Appeal dismissed Decision Content Citation: AG v Minister of Employment and Social Development, 2025 SST 892 Social Security Tribunal of Canada Appeal Division Decision Appellant: A. G. Representative: M. G. Respondent: Minister of Employment and Social Development Representative: Nathan Beck Decision under appeal: General Division decision dated April 24, 2024 (GP-22-1756) Tribunal member: Neil Nawaz Type of hearing: In writing Decision date: August 21, 2025 File number: AD-25-292 On this page Decision Overview Issues Analysis Conclusion Decision [1] I am dismissing this appeal. The Appellant is not entitled to a regular Canada Pension Plan (CPP) disability pension or a post-retirement disability benefit (PRDB). Overview [2] The Appellant is a 66-year-old former machine operator with a history of chronic pain and depression. He stopped working after a motor vehicle accident (MVA) in August 2014, and he has had two more MVAs since then. [3] The Appellant has applied for a regular CPP disability pension three times. His first two applications, submitted in February 2016 and January 2017, were both refused by Service Canada, the Minister’s public-facing agency, after it found insufficient evidence that the Appellant had a severe and prolonged disability.Footnote 1 [4] When the Appellant turned 60 in September 2018, he applied for an early CPP retirement pension. His application was approved, and he began receiving payment as of October 2018.Footnote 2 [5] The Appellant submitted his third application for the regular disability pension in June 2019.Footnote 3 The Minister again refused it and also determined that the Appellant was ineligible for the PRDB. The Appellant appealed these refusals to the Social Security Tribunal. [6] The Tribunal’s General Division held hearings in writing and by videoconference and dismissed the appeal. It decided that the Appellant didn’t have a severe and prolonged disability as of December 31, 2016, the last time he had coverage for the regular disability pension. It did not address the Appellant’s eligibility for the PRDB. [7] The Appellant disagreed with the General Division’s decision. Last April, one of my colleagues on the Appeal Division granted him permission to appeal. At the Appellant’s request, I did not hold an oral hearing but considered his claim by reviewing all of the material on the written record. Issues [8] In this appeal, I had to answer two questions: Is the Appellant eligible for a regular CPP disability pension? If so, did he develop a severe and prolonged disability during his coverage period? If the Appellant is not entitled to a regular CPP disability pension, is he eligible to the PDRB? In particular, does he have coverage for the PRDB and, if so, did he develop a severe and prolonged disability during that coverage period? Analysis [9] I have applied the law to the available evidence and concluded that the Appellant is not entitled to either the regular CPP disability pension or the PRDB. For the regular pension, he didn’t have a severe and prolonged disability within his coverage period. For the PRDB, he didn’t have any coverage at all. [10] The Canada Pension Plan provides for two disability benefits. The regular benefit is for contributors to the CPP who become disabled before retirement; the PRDB is for contributors who become disabled after retirement. Both benefits require claimants to show that their disability became severe and prolonged during their respective coverage periods: A disability is severe if it makes a claimant incapable regularly of pursuing any substantially gainful occupation.Footnote 4 A claimant isn’t entitled to a benefit if they are regularly able to do some kind of work that allows them to earn a living. A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.Footnote 5 The disability must be expected to keep the claimant out of the workforce for a long time. [11] The regular disability pension and the PRDB each have different rules for calculating their respective coverage periods: A claimant establishes coverage for the regular CPP disability pension if they had four years of valid contributions in any six-year window.Footnote 6 A claimant establishes coverage for the PRDB if they had four years of valid contributions in the six years leading up to their application.Footnote 7 [12] The PRDB is lower than the regular CPP disability pension because it is meant to supplement the retirement pension. However, both disability benefits require claimants to show that they are no longer capable of any type of remunerative employment within defined periods. The Appellant is not entitled to the regular disability pension [13] The Appellant submitted a large medical file documenting his injuries and health problems over the past decade. I reviewed the entire file, but I couldn’t find enough evidence to indicate that the Appellant had severe and prolonged disability during the applicable coverage period. The Appellant had coverage for the regular CPP disability pension up to December 31, 2016 [14] The Appellant’s most recent valid contributions occurred in 2011, 2012, 2013, and 2014.Footnote 8 Those four years of contributions gave him coverage for the regular CPP disability pension up to December 31, 2016. That meant he had to show he had a severe and prolonged disability before that date. The Appellant didn’t have a severe or prolonged disability during his coverage period [15] Claimants for disability benefits bear the burden of proving that they had a severe and prolonged disability during their coverage period.Footnote 9 The Appellant did not meet that burden according to the test set out in the Canada Pension Plan. [16] In his application for benefits, the Appellant said that he hadn’t been able to work since August 2014 because of the following conditions: Pain in his neck, back, and shoulders Major depressive disorder Post-traumatic stress disorder (PTSD) Asthma Diabetes High blood pressure [17] As a result of these conditions, he said that he was unable to Lift heavy objects Sit stand or walk for extended periods Sleep Concentrate Deal with people Express thoughts [18] He also described himself as frustrated, moody, and lacking in motivation. He rated all of his physical, behavioural, and emotional capacities as “fair” to “poor.”Footnote 10 [19] In the medical questionnaire that accompanied his CPP disability application, Dr. Sanchez, family physician, wrote that the Appellant had been involved in three MVAs: August 2014, July 2016, and April 2019. She said that, as a result of these accidents, he had neck, shoulder, and low back pain, as well as an adjustment disorder with depressed mood, PTSD, insomnia, and low self-esteem.Footnote 11 He was unable to do any lifting, his physical activities were limited, and he had low energy and poor concentration. He had received physiotherapy, massage therapy, and psychotherapy, and he was taking Naprosyn and Vimovo (both anti-inflammatories), Imovane (a sleep aid), Amitriptyline (a pain medication that can also act as an anti-depressant), and Ativan (an anti-anxiety medication). Dr. Sanchez had recommended that the Appellant stop work in July 2019, and she did not expect him to return to any kind of employment in the future. [20] While the Appellant may be unable to hold a job now, that doesn’t mean he had a severe and prolonged disability as of December 31, 2016. I note that Dr. Sanchez did not recommend that the Appellant stop working until well after his coverage period. The Appellant now claims to have been disabled since August 2014, but I can’t base my decision on just his subjective view of his capacity at that time.Footnote 12 I also have to look at the available medical evidence and, in this case, it is lacking. The Appellant’s medical evidence indicates treatable conditions [21] The Appellant submitted a large volume of medical information, but much of it was dated well after his coverage period, and some of it specifically related to injuries he sustained in his April 2019 MVA. For the most part, I gave little weight to reports that were dated after December 31, 2016 and focused on those that were prepared during the relevant period. Those reports indicated that, while the Appellant had some physical and psychological problems, they were relatively mild and manageable. [22] In August 2014, Dr. Sanchez wrote that, three days earlier, the Appellant was driving on a highway when his vehicle was sideswiped by a cube van travelling at high speed.Footnote 13 That evening, he developed pain in his neck, back, and left arm. He went to a walk-in clinic, where he was diagnosed with whiplash injuries. Dr. Sanchez prescribed the Appellant with Naprosyn and referred him physiotherapy. She remarked that he had seen a 30 percent improvement in his pain since the accident. [23] In December 2014, the Appellant’s auto insurance company referred him to a psychiatrist for assessment.Footnote 14 The Appellant told Dr. Kiraly that his accident had caused $5,000 in damage to his vehicle and that, while the police were called to the scene, paramedics were not. Instead, he reported the accident at the collision centre and went home. He said that the accident left him with pain to his neck, back, and left arm but that it had improved between 30 and 50 percent. He also complained of disturbed sleep, low mood, nightmares, flashbacks, and anxiety. On examination, Dr. Kiraly diagnosed the Appellant with an adjustment disorder with depressed mood, PTSD, a pain disorder, and major depression. He recommended psychotherapy and antidepressants and predicted that, if the Appellant adhered to prescribed treatments, he might be able to return to work on a graduated basis. [24] An x-ray of the cervical spine revealed minimal anterior wedging of the C5 vertebra. However, the remainder of the vertebrae were intact, the disc spaces were otherwise well maintained, and the soft tissue structures were unremarkable.Footnote 15 [25] In December 2014, the Appellant underwent a multidisciplinary assessment. Although the resulting report was not included in the file available to me, a summary of it was included in a subsequent psychological assessment report.Footnote 16 It found that, as a result of the August 2014 accident, the Appellant sustained “minor” soft tissue injuries to the cervical and lumbar spine. His prognosis was “excellent,” and he did not appear to have any ongoing musculoskeletal issues that warranted further care or management. He would be able to return to work without limitations or restrictions. [26] In July 2015, Parvaneh Akbari, a clinical psychologist, wrote that she had been treating the Appellant since February 2015 with mindfulness-based cognitive behavioural therapy, relaxation techniques, and psychoeducation.Footnote 17 She said that, while he continued to be prone to anxiety, the Appellant had found treatment helpful, although he continued to experience chronic pain and physical limitations. Ms. Akbari concluded that, with continued psychological treatment, the Appellant’s prognosis was good, although his prospects for returning to work were guarded. [27] In September 2015, Dr. Kiraly reassessed the Appellant.Footnote 18 The psychiatrist noted little improvement in the Appellant’s symptoms, despite physiotherapy and psychotherapy. A series of psychological tests indicated severe depression, and Dr. Kiraly assigned the Appellant a general assessment of functioning (GAF) score of 55, indicating moderate psychological impairment. He had tried Cymbalta for a few months but had stopped after an initial benefit. Dr. Kiraly urged him to go back on the antidepressant and recommended Pristiq should side effects occur, as well as additional mindfulness sessions. He added that the Appellant’s prognosis was good: “His impairments are temporary and would resolve after going through the recommended treatment.” [28] In January 2016, Dr. Manamohan Johnson, a psychiatrist, wrote that the Appellant was employed as a machine operator for 15 years prior to being laid off in January 2014.Footnote 19 He reported ongoing pain in his neck, back, and shoulders that had left him depressed and unmotivated to go back to work: “At my age you cannot expect me to work lifting things.” However, he was able to complete household tasks such as cooking, vacuuming, and washing dishes, and he was thinking about becoming an Uber driver. Dr. Johnson diagnosed the Appellant with dysthymia (low mood), alcohol abuse, and a personality disorder. He assigned the Appellant a GAF score of 70, indicating a mild psychological impairment. He suggested that the Appellant be assessed for work that was suitable to his physical limitations and concluded that he did not require any psychiatric intervention. [29] In May 2016, Ms. Akbari reported that the Appellant was increasingly angry, irritable, and agitated.Footnote 20 He complained of apathy, fatigue, insomnia, severe headaches, suicidal ideation, as well as a decline in his cognitive functioning. Ms. Akbari recommended a neuropsychological assessment to rule out a post-concussive syndrome. [30] In December 2016, two clinical psychologists concluded that the Appellant was suffering from a significant degree of psychological distress.Footnote 21 They diagnosed him with moderate major depressive disorder, an adjustment disorder with anxiety, and a somatic symptom disorder with predominant pain. They thought he would be unlikely to return to his pre-accident status, and they foresaw difficulty if he attempted to return to his former occupation. [31] In all, the above findings point to neither a severe nor prolonged disability. The Appellant was involved in an August 2014 MVA that resulted in only soft tissue injuries. He did not have to go to the hospital, and his vehicle was repairable. Within three days of the accident, he reported that his pain was 30 percent better — and that was before he began physiotherapy. He now claims to have chronic pain disorder, but he did not attend a pain management program until September 2022, well after the end of his coverage period.Footnote 22 [32] The Appellant also claims to be disabled by depression, but the record there is mixed too. He was assessed by two psychiatrists and, although they differed on the severity of his condition — Dr. Johnson said his symptoms were mild, while Dr. Kiraly found them more serious — they both agreed that his prognosis for recovery was good, provided he complied with treatment. Ms. Akbari, the clinical psychologist who treated the Appellant for several months, came to a similar conclusion. Two other clinical psychologists said that he wouldn’t be able to return to his previous physically demanding jobs, but they notably didn’t rule out a return to any form of work. [33] In arriving at my decision, I also placed weight on one report that was prepared well after the coverage period. In April 2019, the Appellant was again injured in an MVA, this time after his van was rear-ended. As part of his accident benefits claim, his auto insurer referred him for another psychological assessment, which found that he was essentially healthy before his third accident: Prior to the accident, there is no evidence to suggest that [the Appellant] suffered any ongoing pain issues, psychological, or medical problems that interfered with his ability to engage in normal life. His symptomatology commenced following the subject accident.Footnote 23 [34] I can only assume that this assessment of the Appellant’s health prior to April 2019 was based on his own account. If so, it suggests that he had fully recovered from the injuries and related conditions that he suffered as a result of his first MVA. The Appellant didn’t do everything reasonably possible to get better [35] The Appellant bases much of his claim on depression, but there are indications in the file that he didn’t fully comply with treatment advice. This matters, because there may have been unrealized scope for improvement in his psychological condition. [36] A case called Lalonde says that disability claimants must comply with their doctors’ recommendations.Footnote 24 It also requires decision-makers to consider whether a claimant’s refusal of recommended treatment is reasonable and, if not, what impact that refusal is likely to have on the claimant’s disability.Footnote 25 [37] In this case, the Appellant apparently tried Cipralex, an antidepressant, but found he couldn’t tolerate it.Footnote 26 It appears that he refused Trazadone, another antidepressant, but he agreed to try Cymbalta.Footnote 27 He took that medication on and off for the next three years and, although he reported an initial benefit from it, Dr. Sanchez’s notes indicate that he didn’t take it consistently.Footnote 28 At one point, Dr. Kiraly also noted that the Appellant had unaccountably stopped taking it. [38] It is well known that pharmacotherapy is one of the primary means of treating mood disorders. In this case, it is not clear that the Appellant gave that important treatment modality a fair chance. The Appellant’s background and personal characteristics didn’t affect his employability [39] In deciding whether the Appellant could work, I had to consider, not just his medical evidence, but all circumstances, including his age, level of education, language abilities, and past work and life experience.Footnote 29 [40] The Appellant was employable at the end of his coverage period despite his medical problems. He was 58 years old — not young but still a few years from the normal age of retirement. He had a high school education and was fluent in English. He had many years of work experience that suggested he was capable of being a reliable employee. [41] It’s true that the Appellant has held nothing but physically demanding jobs in factory settings but, as I have made clear above, I don’t believe that he had significant or lasting physical impairments as of December 31, 2016. Nor do I think his psychological problems were severe or prolonged, especially given indications that they were treatable. The Appellant was never eligible for more than three months of regular disability pension payments [42] In refusing the Appellant’s disability claim, I want to make something clear: even if I had found the Appellant disabled before December 31, 2016, he would have received only a few months of regular disability pension payments. That’s because there are limits to how much successful applicants can receive. The Canada Pension Plan limits retroactive pension payments [43] Under the Canada Pension Plan, a person cannot be deemed disabled more than 15 months before the Minister received their application for the regular disability pension.Footnote 30 In this case, the Minister received the application in June 2019, so the Appellant would have been deemed disabled as of March 2018. According to section 69 of the CPP, payments start four months after the deemed date of disability, so the Appellant’s disability pension could have started no earlier than July 2018. The Appellant’s coverage for the regular CPP disability pension ended on September 30, 2018 [44] The Appellant’s regular disability pension would have lasted only three months If he had qualified for it. That’s because a person can’t receive a CPP retirement pension and a regular CPP disability pension at the same time.Footnote 31 [45] The Appellant began receiving a CPP retirement pension in October 2018, the month after he turned 60. The Canada Pension Plan says that, once a person starts receiving a retirement pension, they are no longer eligible to receive the regular disability pension.Footnote 32 The Appellant couldn’t cancel his retirement pension in favour of the regular disability pension [46] law makes it difficult to convert a CPP retirement pension to a regular disability pension. [47] Once approved, CPP retirement recipients can’t cancel their pension unless they do so within six months of it starting.Footnote 33 The problem for the Appellant is that he did not cancel his CPP retirement pension within that six-month deadline. His CPP retirement pension started in October 2018, and he applied for the regular disability pension in June 2019. By then, his retirement pension had been in pay for eight months, so it was too late for him to cancel it in the hope that he could substitute it for a regular disability pension. [48] The net result of the above restrictions is that, even if I had found the Appellant had a severe and prolonged disability before December 31, 2016, he would have been eligible to receive, at most, three months of regular disability pension payments — from July to October 2018. The Appellant isn’t eligible for the PRDB [49] The PRDB was created in January 2019 to protect and compensate CPP retirement pensioners who become disabled before the age of 65. Like the regular CPP disability pension, it requires claimants to establish coverage periods by making minimum contributions to the CPP. [50] There are two ways of determining whether a claimant had enough years of CPP contributions to qualify for the PRDB. That’s because the rules changed on May 5, 2023: Section 44(4) of the Canada Pension Plan used to say that PRDB claimants needed to show they had at least four years of valid contributions “in the last six years.”Footnote 34 In a case called N.L., the Appeal Division interpreted this wording to mean that valid contributions had to be made during the full calendar years preceding the date of application.Footnote 35 Under the amended section 44(4), which came into effect on May 5, 2023, a claimant still needs at least four years of valid contributions. However, those years, either in whole or in part, can now extend up to the month the claimant allegedly became disabled, provided the disability occurs after 2018.Footnote 36 [51] The Appellant doesn’t qualify for the PRDB under either the old or new rules. He had only two years of valid contributions (2013 and 2014) in the six full calendar years leading up to the year in which he submitted his application in 2019. That meant he had no coverage, for the purposes of the PRDB, under the old section 44(4). In the six full or partial years leading up to his putative disability in August 2014, the Appellant made valid contributions in all six years, but his putative disability occurred before 2019, thereby denying him coverage for the PRDB under the new section 44(4). [52] Although it makes no difference to his PRDB claim, I find that the old rules apply to the Appellant. There is a general rule of statutory interpretation that new legislation affecting substantive rights is not to be interpreted as having retrospective application unless the wording of the legislation explicitly or implicitly says otherwise.Footnote 37 The federal Interpretation Act codifies this presumption. It says that says that the repeal of an enactment does not affect any acquired right or privilege, although the procedures established by the new enactment are to be followed as far as possible.Footnote 38 [53] In this case, the Appellant submitted his disability application on June 4, 2019 — four years before the rules changed. His claim for disability benefits was commenced under the old rules, and it was still active when the new rules came into effect on May 5, 2023. According to the Interpretation Act and related case law, the substantive rights accrued by the Appellant and the Minister at the time of application were preserved despite the amendments to section 44(4). Conclusion [54] The Appellant stopped working after he sustained soft tissue injuries in an MVA in August 2014. However, those injuries and their sequalae were relatively mild and manageable with appropriate treatment. The available medical evidence indicates that the Appellant did not have a severe and prolonged disability as of December 31, 2016, the last time he had coverage for the regular CPP disability pension. Nor did he have enough contributions to give him coverage for the PRDB. [55] The appeal is dismissed. Footnotes Footnote 1 See the Appellant’s first application for the CPP disability pension dated February 1, 2016 (GD2-230) and his second application dated January 30, 2017 (GD2-194). Footnote 2 See Service Canada benefits readout dated January 11, 2022, GD2-4. Footnote 3 See the Appellant’s third application for the CPP disability pension dated June 4, 2019, GD2-44. Footnote 4 See Canada Pension Plan, section 42(2)(a)(i). Footnote 5 See Canada Pension Plan, section 42(2)(a)(ii). Footnote 6 See Canada Pension Plan, sections 44(1)(b) and 44(2)(a)(i). There are exceptions to this general rule, but none of them apply to the Appellant’s case. Footnote 7 See Canada Pension Plan, section 44(4), as it read until May 5, 2023. This section was amended as of that date to extend the coverage period under some circumstances. Footnote 8 See the Appellant’s updated record of earnings at GD9-15. Footnote 9 See Canada Pension Plan, section 44(1). Footnote 10 See the Appellant’s CPP disability application dated June 4, 2019, GD2-44. Footnote 11 See CPP medical report dated July 31, 2019 by Dr. Zenia Sanchez, general practitioner, GD2-150. Footnote 12 See section 68(1) of the Canada Pension Plan Regulations. Footnote 13 See Dr. Sanchez’s clinical note dated August 22, 2014, GD2-329. Footnote 14 See report dated December 9, 2014 by Dr. Leslie Kiraly, psychiatrist, GD2-331. Footnote 15 See x-ray of the cervical spine dated January 19, 2015, GD2-164. Footnote 16 See report dated February 14, 2017 by Dr. David Kurzman and Dr. Tobi Lubinsky, both clinical psychologists, summarizing the findings of a multidisciplinary report dated November 19, 2014 by Dr. Samuel Soriano, GD2-472. Footnote 17 See report dated July 9, 2015 by Parvaneh Akbari, clinical psychologist, GD2-165. Footnote 18 See Dr. Kiraly’s report dated September 23, 2015, GD2-217. Footnote 19 See report dated January 19, 2016 by Dr. Manamohan Johnson, psychiatrist, GD2-187. Footnote 20 See Ms. Akbari’s report dated May 25, 2016, GD2-193. Footnote 21 See report dated February 14, 2017 by Dr. David Kurzman and Dr. Tobi Lubinsky, both clinical psychologists, GD2-469. Footnote 22 See consultation report dated September 1, 2022 by Dr. Anushi Patgunarajah, general practitioner, GD1-54. Footnote 23 See psychological assessment report dated May 20, 2021 by Fahimeh Aghamohseni, registered psychologist, GD2-295. Footnote 24 See Lalonde v Canada (Minister of Human Resources Development), 2002 FCA 211. Footnote 25 See Sharma v Canada (Attorney General), 2018 FCA 48. Footnote 26 See Dr. Sanchez’s clinical note dated April 20, 2015, GD2-444. Footnote 27 See Dr. Sanchez’s clinical notes dated March 17, 2015 (GD2-443) and June 6, 2015 (GD2-444). Early on, the Appellant reported feeling dizzy on Cymbalta, but Dr. Sanchez’s notes reveal no side effects after that initial reaction. Footnote 28 See Dr. Sanchez’s clinical notes dated May 26, 2016 (GD2-448), August 8, 2016 (GD2-449), and July 6, 2018 (GD2-429). Footnote 29 See Villani v Canada (Attorney General) 2001 FCA 248. Footnote 30 See Canada Pension Plan, section 42(2)(b). Footnote 31 See Canada Pension Plan, section 44(1)(b). Footnote 32 See Canada Pension Plan, section 70(3). Footnote 33 See Canada Pension Plan, section 66.1. Footnote 34 See section 44(4) of the Canada Pension Plan as it read before May 5, 2023. Footnote 35 See N.L. v Minister of Employment and Social Development, 2020 SST 742. Footnote 36 See sections 44(1)(h), 44(4) and 44(5) of the Canada Pension Plan, amended as of May 5, 2023. Footnote 37 See Gustavson Drilling (1964) Ltd. v Minister of National Revenue, [1977] 1 SCR 271 and British Columbia v Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 SCR 473. Footnote 38 See sections 43 and 44 of the Interpretation Act, as interpreted by R. v Puskas, 1998, [1998] 1 SCR 1207; Archambault c R., 2022 QCCA 1170, R. v. J.G., 2019 ONCJ 703, R. v Persaud, 2020 ONSC 341.