Appeal Division’s dismissal of disabled employee’s application for leave to appeal was unreasonable

15. May 2017 0

The appellant, Carol Ingram, brought an application for judicial review of a decision of the Appeal Division of the Social Security Tribunal denying her application for leave to appeal a decision of the Tribunal’s General Division denying her claim for a disability pension. The Appeal Division concluded that Ms. Ingram’s appeal had no reasonable chance of success and accordingly denied her leave to appeal. On judicial review, Ms. Ingram argued that this decision was unreasonable.

Administrative Law – Decisions of administrative tribunals – Employment law – Judicial Review – Pension Appeals Board – Standard of Review – Unreasonableness

Ingram v. Canada (Attorney General), [2017] F.C.J. No. 243, 2017 FC 259, Federal Court, March 6, 2017, S. Fothergill J.

The facts were relatively straightforward. Pursuant to section 44(1)(b) of the Canada Pension Plan, RSC 1985, c C-8 (the “CPP”), a disability pension is paid to a disabled person who: (i) is under sixty-five years of age; (ii) does not receive a retirement pension; and (iii) has made valid contributions to the Canadian Pension Plan for at least the minimum qualifying period (MQP). A person is considered “disabled” if the person has a severe and prolonged mental or physical disability, which means that the person is incapable of regularly pursing any substantial gainful employment (s. 42(2), CPP).

Ms. Ingram’s application for a disability pension was denied at first instance. Ms. Ingram had no earnings for the years 2010, 2011 and 2012 as a result of a medical condition. Indeed, the General Division accepted that Ms. Ingram was disabled as of 2008. However, Ms. Ingram had some earnings and CPP contributions in 2013 and 2014, apparently having returned to work during those years under “painful conditions” because she “needed the money”. The General Division concluded that this period of return to work demonstrated a capacity of maintaining employment and, therefore, her medical conditions did not amount to the level of severity necessary to meet the test for a disability.

Ms. Ingram appealed this decision to the Appeal Division. Ms. Ingram argued that the General Division had placed undue emphasis on her return to work and failed to consider other factors including, for instance, the evidence around her medical conditions. Despite recognizing that the General Division had placed significant emphasis on Ms. Ingram’s period of return to work, the Appeal Division nonetheless held that it had “considered other factors in assessing the severity of her disability”. The Appeal Division accordingly denied leave to appeal the decision.

The sole issue on judicial review was whether the decision of the Appeal Division refusing leave to appeal was unreasonable. The court held that it was. The court found that there were “internal inconsistencies” in the General Division’s decision that could not be reconciled with the conclusion that Ms. Ingram was not “disabled”. The court placed particular emphasis on the General Division’s seeming recognition that Ms. Ingram’s return to work in 2013 and 2014 was under painful conditions (she was “punishing” herself) and that her medical conditions were unlikely to improve. In light of this, the court held that the Appeal Division’s conclusion that the General Division had applied the correct legal test and considered all of the necessary factors in assessing whether Ms. Ingram was “disabled” was unreasonable, concluding that it was “difficult to reconcile these findings with the General Division’s ultimate conclusion that Ms. Ingram’s application should be denied because her disability was not sufficiently severe” . Lastly, the court noted that the thresholds for granting leave to appeal is low (“no reasonable chance of success”). The court held that the Appeal Division’s conclusion that she failed to meet this low threshold was unreasonable.

Ms. Ingram’s application for judicial review was therefore allowed, and the matter was remitted to a differently-constituted panel of the Appeal Division for reconsideration.

This case was digested by Adam R. Way of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at or review his biography at

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