Riccio v Canada (Attorney General), 2021 FCA 108
On May 27, 2021, the Federal Court of Appeal (FCA) judicially reviewed a decision of the Social Security Tribunal (SST) Appeal Division, which had denied Canada Pension Plan disability (CPP-D) benefits to the Applicant, Mr. Riccio. Following the seminal case, Villani v Canada (AG), the Federal Court of Appeal reiterated that decision makers must take a “real world” approach when determining if a CPP-D benefits applicant’s disability is severe.
The FCA granted Mr. Riccio’s application for judicial review, quashed the decision of the SST Appeal Division and referred the matter back to the SST Appeal Division for redetermination.
At the relevant time, the Applicant, Mr. Riccio, was 61 years old with a grade 10 education.
In 2015, Mr. Ricci was in a motor vehicle accident. Following the accident, Mr. Ricci developed injuries including chronic headaches, arthritis, anxiety and depression. He could not return to work.[1]
Mr. Riccio applied for CPP-D benefits. His initial application was denied. Mr. Riccio’s subsequent request for reconsideration, along with his appeals to the SST General Division and SST Appeal Division were also denied.
At the SST Appeal Division level, the tribunal noted that they were to take a “real world” approach, one that accounts for the applicants’ specific circumstances, including age, education and work experience, to assess the severity of a disability.[2]
The SST Appeals division found that some of the limitations of Mr. Riccio’s medical conditions included:
- Problems with bending, stretching and carrying[3];
- Ability to sit and stand were limited[4];
- Inability to show up for a job at a certain time each day[5];
- Inability to stand long enough to work part-time as a greeter in a store[6]; and
- Inability to get out of bed on some days[7].
Despite the above limitations, the Appeal Division found that Mr. Riccio’s “age and his education would act as a barrier to securing some (but not all) forms of more sedentary employment.[8] Ultimately, the tribunal held that while Mr. Riccio’s medical conditions imposed some limitations, Mr. Riccio still had some capacity to work.[9] The tribunal further noted that although Mr. Riccio was unable to attend a job every day, he could have found part time work within his limitations. The SST Appeal Division dismissed Mr. Riccio’s CPP-D application.
Mr. Riccio appealed the SST Appeal Division decision on the basis that the Appeal Division erred in their interpretation of “disabled” in paragraph 42(3)(a)(i) of the Canada Pension Plan (CPP). Under the CPP, a person is considered disabled where it is determined that they have a severe and prolonged mental or physical disability, which renders them “incapable regularly of pursuing any substantially gainful occupation”.[10]
The FCA held that the SST Appeal Division’s decision was unreasonable on the basis that the Appeal Division provided no explanation for why Mr. Riccio still had some capacity to work, despite their finding that Mr. Riccio could no longer do his former job, work full time, or reliably show up to a job every day.[11]
The FCA further found that while the SST Appeal Division said they were taking a “real world” approach, they failed to actually do so. The SST Appeal Division found, for example, that Mr. Riccio could have looked for part-time work, a finding that runs counter to the fact that Mr. Riccio could not consistently attend work, due to medical issues. The FCA noted that part-time workers are still expected to attend work according to a set schedule. The was therefore a disconnect between the SST Appeal Division’s findings and their conclusion.[12]
The FCA allowed the judicial review application.
This case reiterates the proper approach – a “real world” approach – that decision makers must take when determining whether to grant a CPP-D benefit application. If you are appealing a denied CPP-D benefit application, it is important to consider whether the decision maker took a “real world” approach. Landy Marr Kats LLP’s lawyers can assist with this process.
[1] Riccio v Canada (Attorney General), 2021 FCA 108 at Para 9.
[2] DR v Minister of Employment and Social Development, 2020 SST 299 at para48.
[3] Ibid. at para 42.
[4] Ibid.
[5] Supra note 2 at para 44.
[6] Ibid.
[7] Ibid.
[8] Supra note 2 at para 50.
[9] Supra note 2 at para 56.
[10] Canada Pension Plan, RSC, 1985, c. C-8 at 42(2)(a).
[11] Supra note 1 at para 22.
[12] Supra note 1 at para 23.