It is not uncommon to have a client that is injured in an accident and is, at the time, receiving CPP disability benefits due to pre-existing medical conditions.  In order to recover CPP disability benefits the recipient must demonstrate that the condition(s) suffered are prolonged and continuing.  It is not uncommon for defendants to argue that the CPP application is, as a matter of law, evidence of a prolonged and continuing condition.

This very issue arose in the matter Rolley v. MacDonell, http://canlii.ca/t/hvw76.  In Rolley the plaintiff was receiving CPP disability at the time of the accident.  The defendants relied upon the CPP disability documents throughout the trial in support of its position on the issue of causation.  The defendant’s position was noted as follows:

[74]           The defendant argues that the CPP Documents demonstrate that Mark was not a healthy, well-functioning individual prior to the collision.  The defendant submits that both Mark and Jocelyn attempted in their evidence at trial to minimize the significance of the limitations and restrictions described in the  CPP Documents.  The defendant argues that those attempts demonstrate a lack of credibility on the part of both Mark and Jocelyn.

The plaintiff took the following position:

[76]           The plaintiffs submit that the CPP Documents are to be read in context and should not be given inordinate weight on the issue of causation.  The plaintiffs note the following:

  1. a)    The CPP Documents were completed by Mark at two discreet points in time and therefore provide a snapshot of each point in time;
  2. b)    Both points in time were tumultuous for Mark, as a result of which he was experiencing high stress and anxiety; and
  3. c)    In the circumstances, Mark’s responses in the two Questionnaires included in the CPP  Documents should not be given an expansive interpretation.

[77]           The plaintiffs argue that the CPP Documents, when taken in context, are not representative of Mark’s overall health, including his cognitive abilities, in the years prior to the collision.

 

In this specific case, the judge held that the contents of the CPP documents were not determinative of the plaintiff’s pre-collision condition.  The judge held at paragraph [110] that the “. . . CPP documents served the purpose for with they were intended: to permit CPP to determine whether the disability, if any, from which Mark suffers is “sever and prolonged.”

Furthermore, at paragraph [111] the court held the “. . . CPP Documents are of assistance in this trial to the extent that they provide a snapshot of Mark’s condition at various point in time.  The documents to not, however, reflect the manner in which Mark was able to manage his overall condition, including the fluctuations in his overall condition from time to time.”

The decision in Rolley  was appealed, on various grounds, to the Ontario Court of Appeal.  In Rolley v. MacDonell, 2020 ONCA 642 (CanLII) http://canlii.ca/t/jb1dd, the appellant (defendant) argued that the trial judge erred in her treatment of the respondent’s (plaintiff) application for CPP disability.  The court rejected the appellant’s argument that, as a matter of law, the CPP application had to be understood as showing that Mr. Rolley suffered from a prolonged and continuing condition.  The court saw no error in the trial judge’s treatment of the CPP documentation as evidence of his condition at the point that he completed them.  It was the judge’s role to assess and weigh all the evidence including the CPP application.

 

Tullio A. D’Angela

Tullio A. D’Angela Professional Corporation