A former mining executive has been denied a Canada Pension Plan (CPP) disability pension after the Social Security Tribunal of Canada’s Appeal Division found he did not meet the criteria for a severe and prolonged disability.
V.R., 53, was laid off from his position as a director of sustainability at a Toronto-based resource company in November 2019. In July 2020, he developed back pain that spread throughout his body. Despite his health issues, he started his own consulting business, which he continues to operate.
In July 2021, V.R. applied for a CPP disability pension, citing arthritis and degenerative changes to his lumbar spine causing radiating pain from his lower back through his pelvis and left calf. The Minister of Employment and Social Development denied his application, noting that he stopped working for non-medical reasons and was receiving conservative treatment for his back pain.
V.R. appealed the decision to the Tribunal’s General Division, arguing that his pain had extended to his upper back, shoulders, and knees. The General Division dismissed his appeal, finding that while he had limitations, they did not prevent him from pursuing a substantially gainful occupation. It highlighted that he was earning significant amounts from his consulting business.
He then sought permission to appeal to the Appeal Division, submitting additional evidence. The Appeal Division granted permission and held a hearing to discuss his disability claim in full.
The key issue was whether V.R. had a severe and prolonged disability as of Dec. 31, 2022, his coverage end date based on his earnings and contributions. To qualify for a CPP disability pension, a claimant must prove a disability that is severe — making them incapable of regularly pursuing any substantially gainful occupation — and prolonged.
At the hearing, V.R. testified about his widespread pain affecting various parts of his body, including his neck, shoulders, hips, knees, feet, and hands. He described the pain as “completely debilitating” and noted that he takes medications like Gabapentin and Oxycodone, which make him drowsy and affect his concentration.
Despite his symptoms, V.R. continues to run his consulting business, Y., from home. He works with a single client, Z., a mining and exploration company, providing strategic advice on sustainability and negotiations with First Nations communities. He is on a $5,000 monthly retainer and works up to four hours per week, with flexibility to accommodate his health limitations.
The Appeal Division considered medical evidence from various physicians. While acknowledging his conditions — arthritis, degenerative disc disease, and fibromyalgia — the Tribunal found that the medical reports did not indicate functional limitations that would prevent him from working. For instance, Dr. B., his family physician, noted reduced strength and range of motion but did not recommend that V.R. stop working altogether.
Specialists like Dr. S., an orthopedic surgeon, and Dr. G., a physiatrist, found mild to moderate degenerative changes but nothing that would account for the severity of pain V.R. reported. Rheumatologists also provided assessments, with one noting his ability to walk and transfer was “not too difficult.”
The Tribunal emphasized that V.R. possesses personal attributes that enhance his employability. He holds a post-graduate degree in environmental engineering and has significant experience in the mining industry, including previous executive roles. These factors contribute to his ability to maintain his consulting business despite his health issues.
Financial records played a significant role in the decision. V.R.’s consulting business reported gross revenues of $30,000 in 2022 and $60,180 in 2023. Even after accounting for business expenses, the Tribunal questioned the legitimacy of certain deductions, such as payments to a company owned by his brother and expenses for a home office and vehicle that may overlap with personal use.
Under Section 68.1 of the Canada Pension Plan Regulations, “substantially gainful” is defined by a specific dollar threshold. The Tribunal noted that V.R.’s earnings exceeded this threshold, indicating he was engaged in substantially gainful employment.
The Tribunal also considered whether V.R.’s client, Z., acted as a benevolent employer by accommodating his limitations beyond what is typical. However, it found no evidence of this, stating, “There is no evidence that he is held to a lower performance standard than other contractors in similar positions.”
In conclusion, the Tribunal determined that V.R. did not have a severe and prolonged disability as defined under the Canada Pension Plan. The decision states, “His medical reports suggest that he has residual capacity, and it appears that he has used that capacity to work as an independent consultant through a wholly-owned company.”
For more information, see VR v Minister of Employment and Social Development, 2024 SST 1190 (CanLII).
