CPP appeals lawyer

Ravinder Sawhney, ESQ.
B.A., LL.B., LL.M. (Cornell)
Barrister and Solicitor.
Attorney-at-law, New York
  "Strength does not come from physical capacity. It comes from an indomitable will." Mahatma Gandhi
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Canadians pay into the Canadian Pension Plan throughout their working lives.  This allows them a disability pension from their participation in this Plan, in the event they become unable to work at all. 

CPP appeals are appeals from decisions which do not recognize that the applicant is disabled. In meeting the challenge to prove that a person cannot work, we evaluate medical evidence from the law’s perspective, as well as prepare to contradict prejudicial evidence to meet the standard for claim acceptance.

We have successfully handled CPP appeals at the Office of the Commissioner of Review Tribunals,  as well as further appeals to the Pension Appeals Board. These files have sensitized us to the needs of the applicants who are in this appeal process.

CPP appeals involve a process of hearing with freshly considered evidence. Generally, an appeal in law means addressing points of law in an earlier hearing that were errors to be examined in the appeal.   CPP appeals, like many tribunal appeals, are an exception to this idea of an appeal, and are actually like a trial process with cross-examination of the evidence. 

CPP disability appeals offer a fresh opportunity to prove the case through re-evaluation of the evidence, and through additional evidence.  Updating the claimant's medical condition and demonstrating the total impact on  the ability to work, through testimony, is the theme of these appeals. This is done in the context of the general law relating to disability. 

CPP disability appeals involve showing that disability is severe and prolonged.  These appeals pose challenges arising from the government’s position that the claimant is not entitled to benefits. 

A common assumption made by the government is that the claimant can work part time and is not totally disabled.  Under these circumstances, it is necessary to show how the claimant cannot realistically work within the limited range of ability, and that the disability is “total” under the law.  This requires careful legal analysis and understanding how the evidence should be presented in order that the reality of the claimant’s circumstances is best understood.

Read the integrated blog on How to Prepare for a Court Trial or Tribunal Hearing, to prepare for a CPP appeal hearing. 

New legislation has changed a number of rights that previous legislation had granted.  Older cases have been brought into the new scheme.  Most importantly, there is no automatic right to a hearing.   The new rules permit opportunity to present the case in writing only and leave it to the panel to order a hearing if necessary and that too by phone, videoconference and not necessarily in-person.  

This has magnified the significance of written submissions which are permitted with the updated medical evidence.  It is useful to have a lawyer at an early stage since you may succeed without the need of a hearing.   A thorough and well-presented submission is the best asset with a quick application that would save all the time and energy should the matter be prolonged by the need for a further process.  

It is to be noted that a panel can consider the matter and then deny the claim from which the automatic right to appeal no longer exists.  Permission is required to appeal from the first level, called the General Division, to a second appeals department.  
 This process is called seeking Leave to Appeal.  Without this leave being granted, the only remedy would be to seek a judicial review in the court.  

The panel at the first level may summarily dismiss the appeal if no merit whatsoever seems to exist in the panel's view.  Such a decision can be appealed.  A further rejection would exhaust departmental remedies at the Social Security Tribunal under which the new process is being implemented.  The new appeals and the old appeals prior to 2013 are all being addressed by the new Tribunal, and there is presently a long wait for many appellants.

It should be noted that the substantive legal principles of law upon which decisions are made will continue to be applied from the former Pension Appeals Board decisions and court decisions that have guided general administration of disability appeals in the past.  The procedural differences, however, affect the rights of claimants since the opportunity and the forum to exercise the opportunity has changed in signficant ways.

Requesting an oral hearing is in the interest of most applicants who wish to be able to be seen to show the flesh and blood testimony of their disability experience and daily lives of challenge.  The Social Security Tribunal wishes to promote savings of hotel bookings of conference rooms where oral testimony was presented, and such administrative costs incurred by the government for  in-person hearings.  

Video-conferencing, if permitted, specially if a lawyer is present, would be a second best option, since a limited opportunity for the claimant to be seen is better than simply  documentary evidence in most cases.  

Under these new procedures, it is important to prepare at all stages and maximize the opportunity that will present itself to prove your case.  Legal advice should be sought early with these procedural changes.

Since disability can involve mental injury, it is importantt to note a significant decision of the Supreme Court of Canada decided in June 2017.  This decision shows how mental injury can be proved without a psychiatrist and without a psychiatric diagnosis.   The Court reasoned that family members could prove the injury and how the legal test for mental injury to be established for the purposes of damages, is the same as the test for physical injury.  The test is of a "serious and prolonged" injury which is similar to the test of  "severe and prolonged" disability applied under CPP legislation. The decision is explained in detail in my blog section entitled :Ordinary Evidence as good as Expert Evidence to prove mental injury, as part of this website.  This is a signficant step in the wholesome interpretation of evidence and shows how important ordinary testimony of family members can be, where the life pattern and suffering of the applicant can be proved through long periods during which such injuries often continue. Under the decision, the process of proving an injury need not be monopolized by medical experts who may pronounce upon medical conditions as stated in textbooks but cannot testify to the daily struggles of the disabled as can those living the experience.  

The case thus permits some control of the legal process outside of specialists.  Given the technical nature of evidence and the need to broaden the scope for proof, the case is a landmark. Though the case arose out of a tort injury, and not under CPP type of legislation for analysis, it could impact case law under CPP law in the coming years.  A general expansion of legal principles  enunciated in the courts, particularly the appellate courts, often trickles into administrative law as a matter of legal consistency and expansion of the means to obtain justice throughout the legal system. It can also reshape the legal policies and interpretation underlying the Canada Pension Plan disability law in the coming years.  At the very least, the case signifies the merit of proving an injury with the assistance of those who are around the claimant most of the time.  Stay tuned for updates!

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