Appeals Beyond Social Security Tribunal (General Division)

Hi Everyone, its not often we get decisions out of the Federal Court of Appeal on CPP disability cases, so I wanted to post a link to one of the most recent decisions.

The decision is: Garvey v. Canada (Attorney General), 2018 FCA 118 (CanLII)

This decision is instructive because it reiterates two very important points that I often make in my articles, books etc:

  1. Proving a diagnosis does not mean you will qualify for disability benefits. In this case, the Social Security Tribunal (General Division) judge accepted that appellant had chronic pain syndrome, but noted that diagnosis alone did not prove he met the definition of “severe and prolonged” disability. Many people assume that proving a diagnosis is the key to success but that is not correct. In fact, I had a Tribunal Hearing this week were my client does not have a diagnosis but all the doctors agree she is suffering from disabling symptoms. I expect we will be successful even though there is no diagnosis.

  2. The SST (General Division) hearing is your last chance to give evidence and have a judge make a decision on the facts. I have often said that the Tribunal hearing is your last kick at the can. While you can technically do appeals beyond the Tribunal hearing (to the SST appeals division and to the Federal Court of Appeal), the reality is that most case are won or lost by what happens at the tribunal hearing. In this decision, the Federal Court of Appeal was reiterating that it cannot reconsider the evidence – it can only examine the written decision of the general division judge to determine if there was any error of law. Or how the law was applied to the facts. The law requires that significant deference be given to the factual findings of the general division judge (even if we disagree with those findings). It is possible to win in appeals but its easier to win at the general division trial by doing a better job with presenting your appeal.


Am I right in thinking that evidence about day to day impairment leading the person to the conclusion that they cannot work was not included in the initial application? Funny how at odds this is with the way the program works once someone is approved (i.e. some part-time earnings and the opportunity to re-train or to have a trial return to work) and with the broader issues related to self-determination by people living with disabilities or significant health conditions. (Independent living philosophy, which asserts that people have a right to orchestrate the aspects of their life impacted by disability underscored thinking on disability accommodation for quite a long time.) Obviously we do not have the information on the entirety of the situation, and many factors beyond the symptoms of the diagnoses can influence ability/willingness to return to work, but it seems there are a range of things to consider in analyzing this decision.