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In pursuit of fairness: A call for CPP disability reform | Brad Moscato

Thursday, July 25, 2019 @ 9:58 AM | By Brad Moscato


Brad Moscato %>
Brad Moscato
For Canadians struggling with a disability, the Canada Pension Plan disability benefits (CPP benefits) can prove essential to their health and well-being. However, the plan’s limitations can make it difficult for some Canadians to find the support they need.

Recent enhancements notwithstanding (the program released a new application form, medical form and adjudication framework in 2018), many are denied benefits despite being genuinely disabled and unable to work. In fact, according to a Globe and Mail article titled “Seven reasons why disabled Canadians are losing CPP benefits,” about 60 per cent of initial CPP disability applications are refused, giving Canada one of the highest disability denial rates in the OECD.

In response to those limitations comes a call for reform by many who work with and/or advocate for the disabled. The primary concern stems from the CPP disability approval process, which can be overly burdensome for many.

To qualify for a disability benefit, you must:

  • have a severe and prolonged disability;
  • be under the age of 65 and
  • meet the CPP contribution requirements.

But how does one demonstrate that a disability is severe and prolonged? What evidence is needed for an applicant to be approved?

The adjudication framework stipulates that, “in some cases there will be conclusive evidence that the medical condition alone supports the ‘severe’ and ‘prolonged’ criteria for CPP purposes.” Since these medical conditions — including brain tumour, cancer, AIDS and aneurysm — are easily recognized and evaluated based on objective medical evidence, no additional determination is required of the applicant.

In other cases, however, the determination is a lot more difficult and traditional objective tests are unavailable to determine if the disability is severe and prolonged.

“The adjudication of these cases can be a challenge,” the framework states, specifically highlighting fibromyalgia, chronic pain syndrome and chronic fatigue syndrome as conditions facing those challenges.

In those circumstances, evidence must be obtained from vocational rehabilitation consultants, occupational therapists, employers and others. Even though the people most familiar with the situation are family members, friends or home care workers, the application doesn’t invite those individuals to provide evidence of any kind.

The problem is, those suffering from conditions like fibromyalgia and myalgic encephalomyelitis/chronic fatigue syndrome (ME/CFS) are often overlooked by those in the medical community. Due to the lack of knowledge and/or advances in the medical field — and even downright skepticism toward the illnesses — diagnoses provided by these practitioners tend to focus heavily on clinical observations and subjective reporting by the patient. Applicants providing these types of summaries are often declined benefits.

To make matters worse, the type of evidence the CPP disability framework requires seldom reflects the situation effectively. Those struggling with certain disabilities, such as chronic pain, chronic fatigue syndrome and depression face an especially heavy burden, with approvals often hanging in the balance for lengthy periods of time.

This reality is particularly frustrating considering that the Supreme Court of Canada already established that a disability must be interpreted with the help of subjective criteria to avoid potential discrimination based on a lack of objective evidence, including misperceptions and stereotypes (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City) [2000] 1 S.C.R. 665).

A further challenge with the CPP disability framework is that the questionnaire applicants must complete doesn’t consider the realities of the workplace. A person may not have any trouble walking a few blocks on a good day, for example, but that doesn’t mean they’ll be able to work.

Similarly, while someone may have no trouble using a computer for a period of time within the comfort of their home, it may be harder to do so in a loud environment with multiple distractions.

With these challenges in mind, the following recommendations are suggested to include in the CPP disability application and assessment process.

  1. Functional assessment: The CPP application questionnaire should include a functional capacity scale, which is a more effective tool in properly assessing disability and a person’s capacity in the workplace.
  2. Other voices: When it comes to assessing the disability, the process should place a greater reliance on and take into account assessments from those who know the individual’s circumstances well.
  3. Equality for all: The assessments must be undertaken with an eye to fairness and equity. The Supreme Court has already determined the importance of deliberating these cases from a position of equality in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur [2003] 2 S.C.R. 504. By designing a CPP disability framework and application form that better reflects those priorities, adjudicators would bring a more open and empathic perspective to the table.  

Close to a million Canadians — many of whom are of working age — have been diagnosed with ME/CFS, fibromyalgia or both. The CPP disability program can provide significant support during these difficult times. However, due to limitations beyond their control, many applicants are unable to receive these benefits, yet suffer a severe and prolonged disability preventing them from being able to work.

Reforming the CPP disability framework will ensure that support is available to every Canadian who meets the basic criteria, without inequitable burdens or restrictions standing in their way. Effectively, reform would ensure that all Canadians are treated equally with the fairness and dignity they deserve.

Past chair of the LTD Section, Ontario Trial Lawyers Association, Brad Moscato is a partner at Howie, Sacks & Henry LLP and is dedicated to pursuing the rights of disabled and injured people throughout Ontario. He can be reached at bmoscato@hshlawyers.com or 416-646-7655.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Yvette Trancoso-Barrett at Yvette.Trancoso-barrett@lexisnexis.ca or call 905-415-5811.