KPA Lawyers – July 19, 2021

Canada Pension Plan (“CPP”) Disability Benefits are a federal benefit program which provides monthly payments to individuals who have applied for them, and who have:

• Not yet reached the age of 65 (i.e. are not yet receiving CPP retirement pension);
• Have made enough contributions into CPP;
• Have a mental or physical disability that regularly stops you from doing any type of substantially gainful work; and
• That disability is long-term and of indefinite duration or is likely to result in death.

Under the program, CPP-Disability recipients will receive benefits up to the age of 65, at which point they will be required to transition the regular CPP retirement pension. 

General Barriers to Eligibility for Benefits:

 In general, findings of ineligibility for CPP-Disability can be said to fall into two main categories: 1. Inadequate Pensionable Earnings/Contributions Service Canada will receive and review your application. They require that you have sufficient earnings and contributions to qualify for disability benefits. This means that:

• You have made valid CPP contributions for at least 4 of the last 6 years; or
• You have made valid contributions for at least 25 years, including 3 of the last 6 years; or
• You have made valid CPP contributions in each year since any previous CPP-disability benefit was cancelled.

The amount of contributions you have, and the dates used by Service Canada to assess them are known as your Minimum Qualifying Period (“MQP”). You can view your contributions on your My CRA account. Note: Canada has entered into agreements with many foreign jurisdictions to ensure that the work Canadians do overseas can be counted towards their CPP contributions. 2. Failure to Establish a Disability On an application for Canada Pension Plan disability benefits, you must demonstrate that you are “disabled” within the meaning of the Canada Pension Plan Act. To qualify as disabled under the Act, and therefore be eligible for benefits you need to show that you have a disability that is both severe and prolonged.  Section 42(2)(a) of the Canada Pension Plan Act defines severe and prolonged: 

“(i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

(ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death.”

 In non-legal terms, a disability is severe if it either prevents you from working at all, or prevents you from working on a regular basis therefore preventing you from earning a gainful amount of money. A disability is prolonged if it will either: last an indefinite period of time, including, but not limited to the rest of your life, or is likely to result in your death.  Determining whether a disability is severe and prolonged is a legal determination based on the medical evidence that you provide, which Service Canada considers when first assessing your CPP-Disability application. Where you dispute Service Canada’s decision – which is discussed in more detail below – evidence about the impact of your condition on your daily life may also be relevant. I was notified by Service Canada that my Application for CPP-Disability has been denied…what happens next? If your Application for CPP-Disability benefits is denied by Service Canada, you will receive a letter or phone call from a Service Canada representative advising you of their decision and the reasons for it. In some cases, a representative from Service Canada may also call you to request more information about your application.  If Service Canada tells you by telephone that they will be denying your application, it is important that you keep note of the date of that conversation as it may affect your legal rights. Once you are notified that your application for CPP-Disability has been denied, you can ask Service Canada to reconsider their decision if you disagree with it. You have 90 days from the date that you are notified of the denial to send Service Canada a Request for Reconsideration, in writing.  In a Request for Reconsideration, you must tell Service Canada why you disagree with their decision., You may also choose to submit additional supportive medical evidence which was not included in the initial application. This is highly recommended as it will help explain to Service Canada why you need disability benefits. If you miss the 90-day deadline to request a reconsideration, you can ask Service Canada to reconsider their decision. However, you must explain why you missed the deadline, and it is at Service Canada’s discretion to decide to reconsider their decision or not. I received a letter from Service Canada saying that my Request for Reconsideration has been denied…what can I do now? If your Request for Reconsideration is denied by Service Canada and you disagree with their decision, you can file an Appeal to the Social Security Tribunal – General Division, within 90-days of the denial of your Request for Reconsideration.  The Social Security Tribunal (SST) is a federal tribunal that has the legal power to determine eligibility for CPP-Disability benefits. When you file an Appeal, the Tribunal will communicate with you and Service Canada about the next steps, including your hearing date. Hearings typically occur by telephone, videoconference or in writing. They are conducted before an SST Adjudicator, who considers any evidence presented and makes a decision to deny or award you benefits.  While the SST is not a court, it has the power to make legal decisions, and parties before it are required to follow it’s rules of practice and procedure, including timelines for the submission of documents. Applicants are entitled to represent themselves in an appeal or can choose to be represented by a lawyer or paralegal who will act on their behalf. Even if you intend to represent yourself, it is helpful to speak with an experienced legal professional before choosing to begin an appeal, so you can understand the strengths and weaknesses of your case. If you are a low-income individual, you may qualify for free legal assistance from Legal Aid Ontario, through your local Legal Clinic. If you do not qualify for legal aid services and would like advice about your CPP-Disability matter, you may wish to seek assistance from a lawyer or paralegal of your choosing. The SST-General Division dismissed my appeal, is there anything else I can do? If, after a hearing the SST-General Division dismisses your appeal, you may be entitled to appeal that decision to the SST-Appeal Division. A decision of the SST-General Division may only be considered by the Appeal Division if the General Division made an error of law, an important error of fact, or an error concerning the Tribunal’s jurisdiction. If your appeal has been dismissed, and you wish to appeal to the SST-Appeal Division, you should contact a lawyer or paralegal with experience in this area to discuss your case.  __________________________________

About the Author:

Devon Sivill is an experienced lawyer and member of the Civil Litigation Group at KPA Lawyers P.C. He maintains a virtual practice and is proud to serve clients across Ontario. Devon’s practice encompasses all areas of civil litigation with a particular emphasis on employment and human rights law.