The Canada Pension Plan is a social insurance program that is meant to help those who find themselves disabled and unable to work. To qualify for a CPP disability pension, a person must be “suffering from a severe and prolonged mental or physical disability.” A disability is considered to be severe when a person is not capable of making a living because of it.
ISAC co-counselled with West Toronto Community Legal Services on a judicial review at Federal Court in Osaj v. AG Canada. Mr. Osaj became disabled after two accidents. The General Division of the Social Security Tribunal granted his application for CPP disability benefits, but only from the time medical reports said he had reached “maximal medical recovery” and was “permanently disabled”. However, CPP legislation does not say that these factors have to be present for a person to considered disabled and therefore eligible for benefits. The Social Security Tribunal’s decision meant Mr. Osaj was denied 17 months of CPP-D benefits.
Mr. Osaj tried to get leave to appeal the decision at the Appeal Division of the Tribunal, but was refused.
ISAC and West Toronto Community Legal Services filed an application for a judicial review at Federal Court, arguing for the proper application of the test for “severe and prolonged disability”. We made this application to ensure full access to CPP-D benefits for disabled applicants.
On February 2, 2016, the Federal Court agreed with ISAC’s arguments and granted our judicial review application. The Court decided that the Appeal Division was unreasonable when it refused to grant Mr. Osaj leave to appeal, because it failed to consider whether the General Division had applied the correct legal test for CPP-D benefits. The Federal Court also said that the Appeal Division’s decision was “perverse” when it supported the General Division’s choice of the date of “maximum medical recovery” as the date when Mr. Osaj became disabled, because the medical evidence showed the exact opposite.
Mr. Osaj’s case will now be reviewed again by the Appeal Division.
The full text of the decision can be found here:
Fed Court – Notice Of Application – T-1221-15 Osaj V AG Canada Applicant’s Memorandum
– May 5, 2016