Canada Pension Plan (CPP) disability

Decision

[1] The appeal is allowed.

[2] I find that the Appellant is eligible for a CPP disability pension because her disability was severe and prolonged. Payments start in November 2021.

Overview

[3] The Appellant was 44 years old as of the hearing in the present matter.^{Footnote 1} The Appellant has work experience in health and safety as well as a yoga instructor. She has a college diploma as a certified human resources professional.^{Footnote 2}

[4] The Appellant sustained significant as a result of a motor vehicle accident that happened on March 29, 2018. She says she could no longer work due to her medical conditions as of October 2018.^{Footnote 3}

[5] The Appellant first applied for a CPP disability pension on October 31, 2022.^{Footnote 4} The Minister refused her application initially and on reconsideration.^{Footnote 5}

[6] The Appellant appealed that decision to the General Division of the Social Security Tribunal (Tribunal).^{Footnote 6} The General Division held a hearing on December 10, 2024, and dismissed her appeal.^{Footnote 7} The Appellant asked for permission to appeal that decision to the Tribunal’s Appeal Division.^{Footnote 8} Permission to appeal was granted on March 28, 2025.

Issue

[7] To be eligible for a CPP disability pension, a person has to prove they had a severe and prolonged disability by the end of their minimum qualifying period (MQP). The Appellant’s MQP was December 31, 2020.^{Footnote 9}

[8] The issue in this appeal is the following: Did the Appellant have a severe and prolonged disability by December 31, 2020? And if so, when do her disability pension payments start in accordance with the Canada Pension Plan?

Analysis

[9] I have considered the law and the evidence and concluded that the Appellant had a severe and prolonged disability before her MQP of December 31, 2020. I find that the Appellant’s medical conditions made her incapable regularly of pursuing any substantially gainful occupation before her MQP.

The Appellant was disabled before her MQP of December 31, 2020

[10] A person is considered to have a severe disability if they are incapable regularly of pursuing any substantially gainful occupation.^{Footnote 10} A disability is prolonged if it is likely to be long continued and of indefinite duration or is likely to result in death.^{Footnote 11}

[11] The severity test must be analyzed in a real-world context.^{Footnote 12} This means that, when deciding whether a person’s disability is severe, I must consider their overall medical condition as well as factors like age, level of education, language proficiency, and past work and life experience.^{Footnote 13}

[12] I also note the following important information from the Federal Court of Appeal:

• The severity of the disability isn’t based on a claimant’s incapacity to perform their regular job, but rather any substantially gainful occupation.^{Footnote 14}
• The severity of the disability under the Canada Pension Plan is determined by the capacity to work, not by the diagnosis or description of the illness.^{Footnote 15}
• In cases where there is evidence of work capacity, a claimant must show that they have made efforts to obtain and maintain a job but have been unsuccessful because of their health condition.^{Footnote 16}

[13] Finally, the Appellant has the burden of proving she is disabled. She has to prove this on a balance of probabilities. This means that she has to show that it is more likely than not that she is disabled. I will first look at whether the Appellant’s medical conditions caused functional limitations for her work capacity and, if so, how.

Evidence presented by the Appellant at the hearing

[14] The Appellant testified that she was involved in a motor vehicle accident on March 29, 2018. Prior to the accident, she had been working as a mental health consultant. She would drive to various workplaces to provide training, consultations, and workplace assessments related to psychological health and safety in the workplace.

[15] The Appellant testified to her physical and psychological ailments since the accident. She attempted a return to work to the job she held before the accident, a return that was short-lived at about four weeks. She said her depression really started to ramp up after that.

[16] The Appellant attempted another return to work in a similar health and safety setting at the end of 2021. It was for a dog boarding company. She testified having been excited about the opportunity, as she had flexible hours—“I could work whenever I wanted”. Also, the Appellant was also able to do most—but not all—of her work from home. She said “it wasn’t even a very stressful job”. Despite this, her mental health symptoms worsened: she wasn’t able to sleep, her anxiety spiked, and she couldn’t stop crying. This return to work attempt lasted about two months.

[17] The Appellant then testified extensively about her experience working as a yoga instructor since the accident. She had prior experience as a yoga teacher, having started in 2015. She worked a few yoga teaching jobs since the accident, usually teaching a couple of classes a week. There was a period in 2019 where she taught 3-4 classes a week while her employer was in India.

[18] However, since then, it seems she wouldn’t teach more than two hour-long classes per week. One particular yoga teaching job paid well—$200 per class—but was a 40-minute drive from her house. It was two classes a week at first, but then went down to a single class.

[19] The Appellant testified at the hearing that doing this job took a lot out of her: “So when I was doing the two classes a week, I ended up sleeping through and not showing up for another class. It was exhausting for me and I needed to rest after the classes just to be able to function.”

[20] The Appellant testified that she has managed to support herself since the accident with her minimal income from yoga, with her RRSPs and savings, and with an insurance settlement she received.

[21] The Appellant testified to some misgivings about antidepressant medication, saying that it could worsen her suicidal tendencies and already-poor sleep. She said she had a conversation with her doctor about it, but that it had not been prescribed or recommended.

[22] I will now look at the evidence presented by the Minister at the hearing.

Evidence presented by the Minister at the hearing

[23] The Minister had a professional witness, Dr. Micheline Bégin, testify at the hearing.

[24] Dr. Bégin testified that the majority of the Appellant’s physical symptoms from her whiplash associated disorder and concussion as a result of the motor vehicle accident were gone by the MQP.

[25] As to the Appellant’s mental health ailments, Dr. Bégin testified that the Appellant had had “difficulty to manage after the MVA, but this does not correspond to severity under the CPP.” Dr. Bégin pointed out that she had been discharged from counselling from her social worker in May 2020. She also testified that the Appellant was not taking any medication for depression and anxiety, and that “medication is the treatment in the context of major depression”.

[26] Finally, asked what her opinion was as to the collective effects of the Appellant’s ailments on her capacity to work, Dr. Bégin said she believed that the combination of the Appellant’s physical and psychological ailments did not extinguish her capacity to work by the Appellant’s MQP of December 31, 2020.

[27] I must now look at the medical evidence on file.

The medical evidence supports the existence of serious functional limitations before the Appellant’s MQP of December 31, 2020

[28] Medical evidence is always necessary to support a claimant’s claim for disability benefits.^{Footnote 17}

[29] I carefully assessed the medical evidence, and I believe it supports the existence of serious functional limitations before the Appellant’s MQP of December 31, 2020.

[30] I focused on what I believe to be the two major reports on file:

• Psychological-Legal Assessment Report by Dr. Jacques J. Gouws, psychologist, dated November 9, 2021;^{Footnote 18}
• Tort Independent Medical Evaluation by Dr. Ali T. Ghouse, physiatrist,  dated March 17, 2022;^{Footnote 19}

[31] At a little more than 100 pages long, the report by psychologist Dr. Jacques J. Gouws can only be qualified as thorough. Made in November 2021, it also came after the Appellant’s MQP. However, as it carefully considers the entire body of medical evidence prior to the report, almost all of which was pre-MQP, I consider it to be very relevant. It is also fairly contemporary to the MQP.

[32] And indeed, Dr. Gouws spends 34 pages pouring over the medical evidence to date in the file.^{Footnote 20} He comes to 17 different conclusions regarding the evidence, among which:

• The Appellant has suffered a “permanent and serious psychological injury, caused by the 2018 car accident…”;^{Footnote 21}
• “At more than three and a half years post accident (…) it does not appear as is there is any significant resolution to the physical, and even more to the psychological impairments arising from the diagnosed concussion and psychological symptoms.”;^{Footnote 22}
• He calls her prognosis for recovery “poor”, including for psychological recovery, and says that the Appellant “had developed a permanent psychological impairment.”^{Footnote 23}

[33] After discussing the Appellant’s treatment, current status (as reported by the Appellant), and history, Dr. Gouws addresses the 12 procedures and tests that he administered to the Appellant.^{Footnote 24} He believes that the tests were consistent amongst themselves and that they are valid, reliable, and consistent with what the Appellant had self-reported.^{Footnote 25}

[34] Further to these tests, Dr. Gouws validates the following diagnoses: Somatic Symptoms Disorder with predominant pain (Chronic Pain), Major Depressive Disorder, and Panic Disorder.^{Footnote 26} Dr. Gouws discusses the impact of these diagnoses related to the Appellant’s employability in the “real world”.^{Footnote 27} He believes that her “current situation and condition will remain unchanged.”^{Footnote 28} Dr. Gouws considers the Appellant to be “at a high risk of future psychological deterioration and an increasing risk of suicide.”^{Footnote 29}

[35] This bears repeating: I believe Dr. Gouws’ analysis of the Appellant’s situation and condition to have been very thorough. And though it is difficult to summarize in a few paragraphs such a considered opinion, Dr. Gouws’ conclusions as to the Appellant’s employability are categorical:^{Footnote 30}

It is further my considered professional opinion that [the Appellant], because of the complexity of her psychological conditions as diagnosed, is not gainfully employable. In my review of the findings by the various assessors on [the Appellant’s] status, I noted that she was deemed unable to return to her employment as a mental health consultant, but based on her return to teaching yoga was deemed capable of doing some similar kind of job. However, this approach does not take into consideration that [the Appellant] is emotionally quite labile, appears overly distressed, becomes overwhelmed quickly and unpredictably and in her attempts to function to date have had a number of situations where she walked away after creating conflict because of her emotional lability. This renders her psychologically completely incapable of working in any occupation for which she may theoretically be qualified by virtue of her education, training, and experience.

[36] Dr. Gouws concludes that the prognosis for the Appellant—be it for psychological recovery, lifestyle endeavours, function in her home environment, and employment—is guarded to bleak. He says that the Appellant’s “prognosis for returning to any occupation involving gainful, competitive employment is bleak.”^{Footnote 31}

[37] Considering how thorough Dr. Gouws’ report is, I find it extremely compelling. And in my view, the fact that it was rendered almost a year after the Appellant’s MQP in no way detracts from how convincing it is, considering how it completely considers the Appellant’s medical history to date. There is also no evidence of a deterioration in the Appellant’s condition between her MQP and the date of the report.

[38] Also on file is a report from March 2022 by physiatrist Dr. Ali T. Ghouse.^{Footnote 32} And while Dr. Gouws’ report addressed the Appellant’s psychological limitations, Dr. Ghouse’s report addresses her physical limitations. This report also came after the Appellant’s MQP. I also find it relevant, for the same reasons I found Dr. Gouws’ report relevant: Dr. Ghouse bases his findings in part on a review of the Appellant’s medical history.^{Footnote 33}

[39] Dr. Ghouse lists 11 diagnoses related to the Appellant’s physical ailments.^{Footnote 34} He concludes that these diagnoses lead to the Appellant being unemployable:^{Footnote 35}

She is, for all practical purposes, considered disabled from engaging in full duties of any employment for which she is reasonably suited by experience, training or education having regards to her current symptoms. There is a substantial possibility and probability that she would continue to have difficulty in working for the long-term future.

[40] Dr. Ghouse indicates that the Appellant’s prognosis is poor.^{Footnote 36} His conclusions as to the Appellant’s competitiveness in the employment marketplace are in line with those of Dr. Gouws:^{Footnote 37}

At this time, [the Appellant] is at a competitive disadvantage as a result of her accident-related injuries. Her competitive position in the employment market has been compromised as a result of this accident. The impairments interfere with her competitiveness imposing specific physical limitations and activity intolerances as outlined above. She would be unable to perform the regular duties of her occupation, particularly with regards to driving. Additionally, there are psychological issues that she is dealing with.

[41] I note that these two reports are consistent with another fairly thorough report on file, by occupational therapist Mary Simpson-Jones from June 2019.^{Footnote 38} At that time, Ms. Simpson-Jones had determined that: “Based on [the Appellant’s] significant accident-related concussion symptoms and physical injuries, it is this therapist’s opinion that she is not yet ready to return to work at this time.”^{Footnote 39} Of note, Dr. Gouws carefully considered Ms. Simpson-Jones’ report.^{Footnote 40} Dr. Ghouse considered it as well.^{Footnote 41}

[42] Reading the reports by Dr. Gouws and Dr. Ghouse together, I can only conclude that the Appellant’s physical and psychological issues combined to make for significant limitations as to work.

[43] Finally, there is a more recent medical report on file by the Appellant’s family physician, Dr. Avreet Alangh.^{Footnote 42} Dated January 2023, it was made a little more than two years after the Appellant’s MQP. I reference it because the Minister relies on its supposed conclusions regarding the Appellant’s employability.

[44] Dr. Alangh validates diagnoses of major depression and whiplash associated disorder, neck pain, and musculoskeletal signs.^{Footnote 43} He lists a number of impairments and functional limitations related to these diagnoses.^{Footnote 44}

[45] Of note, Dr. Alangh indicates that the Appellant “is currently working as a yoga teacher part time and is tolerating this well.” He also says that the Appellant is “currently working part time” and that she “can continue in her current work as a yoga instructor.”^{Footnote 45}

[46] The Minister pointed to this as indicative of the Appellant’s employability.^{Footnote 46} I disagree. I find those statements indicate that the Appellant is able to deliver the limited amount of yoga classes that she did, with no other context. And though I will return to the matter of “real world” employability below, I point out that Dr. Gouws agrees that he Appellant’s experience as a yoga instructor does not seem to satisfy the “real world” criteria for employability:^{Footnote 47}

 …her presentation in this assessment as well as the examples she gave multiple times where she could not handle the perceived pressure on her and just walked away, provide evidence that at this time [the Appellant] is substantially unable to perform the essential job tasks of any occupation, including her own occupation, in a gainful and competitive job setting. Her self-description of the yoga classes she teaches are unlikely to satisfy the criteria required to meet employment standards.

[47] And, contrary to what is pointed out in the Minister’s written submissions, Dr. Gouws never said that the Appellant “would likely be able to return to teaching yoga and work teaching crisis de-escalation training.”^{Footnote 48} This quote is indeed from Dr. Gouws’ report. However, it was Dr. Gouws quoting from another report, that of Dr. Hannah Rockman, from September 2020.^{Footnote 49}

[48] Finally, the Minister made the argument that the Appellant’s social worker, Emily Gaede, had discharged her from counselling in May 2020.^{Footnote 50} I am to conclude from this that the Appellant’s psychological issues had resolved by then.

[49] I place little weight on this argument, for two reasons. First, as pointed out by the Appellant’s representative, the Appellant continued to seek counselling after May 2020, and in close proximity to her MQP of December 31, 2020. There are notes on file from counsellors from April 2021 to January 2023.^{Footnote 51} Second, it is clear from Dr. Gouws’ report that at no time did the Appellant’s psychological issues resolve. There is no evidence in his report of such an improvement before her MQP and a deterioration after her MQP.

[50] I cannot conclude from the Appellant being discharged from her social worker that her psychological issues had resolved in May 2020, or by her MQP of December 31, 2020.

[51] I believe the medical evidence before me shows that the Appellant had significant limitations as to work before her MQP of December 31, 2020. I must now look at whether the Appellant was able to work “in the real world”.

The Appellant wasn’t able to work in the real world before her MQP

[52] When I am deciding whether an appellant can work, I can’t just look at their medical conditions. I must also consider factors such as their age, level of education, language abilities, and past work and life experience.

[53] The Federal Court of Appeal has indicated that, in disability cases, I must conduct an analysis as to whether a person can work “in the real world”^{Footnote 52} I have to consider how their background and personal characteristics might affect their employability. These are known as the Villani factors.

[54] The Appellant has work experience and a college education.^{Footnote 53} She is fluent in English, so language skills aren’t an impediment. She was only 40 years old before her MQP of December 2020.

[55] These factors could point to an employable person. However, I don’t believe they matter in the Appellant’s case because the medical evidence—namely the reports by Dr. Gouws and Dr. Ghouse—clearly points to someone who cannot work, and namely in a competitive marketplace.^{Footnote 54}

[56] Furthermore, I believe that the Appellant’s efforts to return to work after her MQP are not indicative of residual work capacity. It is clear from the evidence that the Appellant’s return to work in her previous employment in health and safety was a failed work attempt. The Appellant’s testimony regarding her attempt to work in health and safety for a dog boarding company for two months in 2021-2022 also leads me to characterize this as a failed work attempt.

[57] Finally, as to the Appellant’s work as a yoga instructor, the evidence points to work that was not substantially gainful in nature. At most, the Appellant taught two one-hour/$200 classes per week, at a rehab facility 40 minutes away from her house.

[58] Though no documentary evidence was filed related to the Appellant’s income, when one takes into her account her travel-related expenses, the net incomes reported by the Appellant in her application for leave to appeal seem likely and reasonable.^{Footnote 55} These incomes do not reach the threshold of substantially gainful.

[59] And, as I said above, the Appellant testified that doing just those two classes a week took a lot out of her.

[60] I believe that if there is work suitable to the Appellant’s limitations, it is simply not substantially gainful in nature. I find that the Appellant’s work after the motor vehicle accident of March 2018 is not indicative of remaining work capacity. 

[61] As a result, I find that the Appellant could not work in the real world by October 2018, after her failed work attempt.^{Footnote 56}

The Appellant didn’t refuse treatment unreasonably

[62] The Minister did not make this argument in their written or oral submissions. However, as I indicated above, Dr. Bégin alluded to this possibility in her testimony.

[63] There is no doubt that a claimant must follow medical advice. Case law holds that a claimant cannot unreasonably choose not to comply with recommended medical treatment.^{Footnote 57}

[64] There is extensive medical evidence on file. Since the accident, varied and numerous medical professionals have been involved in treating the Appellant. Also, both Dr. Gouws and Dr. Ghouse have discussed and characterized the Appellant’s treatment in their reports.^{Footnote 58}

[65] There is no evidence that the Appellant refused to comply with any treatment recommendation. There is no evidence that a treatment or medication was prescribed or even suggested to the Appellant by a medical professional that she refused to comply or cooperate with.

[66] To Dr. Begin’s point about depression and medication, it is possible that a treatment or medication may be habitual for a given ailment. I do not believe the Appellant can be faulted for the failure to have used such a treatment, in the absence of a prescription or recommendation by a medical professional.

[67] So, I find that the Appellant had a severe disability, since she was incapable regularly of pursuing a substantially gainful occupation by October 2018.

The Appellant’s disability was prolonged by October 2018

[68] The Appellant’s disability was prolonged.

[69] The Appellant’s conditions that limited her ability to work began as of the motor vehicle accident in March 2018 and caused her not to be able to work by October 2018, all well before her MQP of December 31, 2020.

[70] Dr. Gouws concludes in his report that the Appellant’s condition is permanent: “It is my professional psychological opinion that the impairments I identified as arising from the motor vehicle accident are considered permanent because they have been continuous since the accident and, despite [the Appellant] reasonably participating in recommended treatment, are not expected to substantially improve.”^{Footnote 59}

[71] Dr. Ghouse is of a similar view in his own report:^{Footnote 60}

It is now more than three-and-a-half years since [the Appellant’s] motor vehicle accident. The symptoms have been persistent despite adequate efforts at rehabilitation and treatments. The treatments have been partially helpful.

At this stage, further recovery and restoration of function is not probable. She is considered as having reached her maximum medical rehabilitation potential. The pain is likely to continue in the foreseeable future. Prognosis for return to  previous level of function and for complete recovery is poor.

[72] And indeed, up to the hearing into this matter, the Appellant’s conditions have persisted for over seven years since the accident of March 2018. They have shown no sign of letting up.

[73] I see no light at the end of the tunnel. I find that the Appellant’s disability was prolonged as of October 2018.

When do payments start

[74] I find that the Respondent had a severe and prolonged disability by October 2018, date by which the Appellant said she was no longer able to work.

[75] However, the Canada Pension Plan says a person can’t be considered disabled more than 15 months before the Minister receives their disability pension application.^{Footnote 61} After that, there is a four-month waiting period before payments start.^{Footnote 62}

[76] The Minister received the Respondent’s application in October 2022. That means she is considered to have become disabled in July 2021. So, her payments start as of November 2021.

Conclusion

[77] I find that the Appellant is eligible for a CPP disability pension because her disability was severe and prolonged.

[78] This means that the appeal is allowed.