Ontario Superior Court of Justice Divisional Court
Blair R.S.J., Borkovich and Lang JJ.
Counsel:
Rebecca J. Givens, for appellant.
Elizabeth Klassen, for respondent.
Reasons for Decision
1LANG J. (orally):— An appeal lies to this court only on a question of law. The Tribunal correctly set out the legal principles at the beginning of its decision, and its reasons showed that it was clearly cognizant of the requirements of the legislation. The Tribunal had the distinct advantage of hearing fulsome evidence from the applicant and considering the medical verification in the context of her evidence. It decided that the applicant was disabled.
2In arriving at its decision, the Tribunal found that the applicant was, “a person with a disability” eligible for allowance under the Ontario Disability Support Program. It is our view that the Tribunal need not use specific wording in coming to its conclusion. It is sufficient it is apparent from the decision read as a whole that the Tribunal considered all relevant principles and applied them to its factual determinations. The Tribunal’s reasons complied with s. 67(2) of the Regulations under the Ontario Disability Support Program Act, S.O. 1997, c. 25 (ODSPA) which required the decision to include the principal findings of fact, and its conclusions based on those findings. Subsection 4(1) of the ODSPA sets out the criteria to establish whether a person is a “person with a disability”. Section 4(1) reads as follows:
- (1) A person is a person with a disability for the purposes of this Part if,
(a) the person has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more;
(b) the direct and cumulative effect of the impairment on a person’s ability to attend to his or her personal care, function in the community and function in a workplace, results in a substantial restriction in one or more of these activities of daily living; and
(c) the impairment and its likely duration and the restriction in the person’s activities of daily living have been verified by a person with the prescribed qualifications.
3Accordingly, to satisfy the test, the person must establish:
A substantial impairment (physical or mental);
An impairment that is continuous or recurrent and expected to last one year or more;
The impairment directly and cumulatively substantially restricts one of the applicant’s following abilities:
a) To attend to their personal care;
b) To function in the community; or
c) To function in a workplace.
- The impairment, its duration and the restriction have been verified by a person with prescribed qualifications.
4In this case, the doctor who completed the medical report is a person with prescribed qualifications (Section 46 of Regulation 222/98 of the ODSPA).
5Under s.47 of the Regulation, a Disability Adjudication Unit makes an initial determination based only on the medical documentation submitted by the applicant. The Disability Adjudication Unit reports to the Director who makes the decision. If found to be ineligible, the applicant may request an internal review, and if again found ineligible, she or he may appeal to the Social Benefits Tribunal. The onus is upon the applicant to satisfy the Tribunal that the Director’s decision was wrong (See ODSPA, s. 23).
6The Tribunal’s decisions are not binding on other panels and the Tribunal does not exercise policy-making or regulatory functions. There is a statutory right of appeal to this court on a question of law. The court, on appeal, will ask itself whether the Tribunal was “correct” in its interpretation of the legislation.
7When applying for benefits, the applicant is required to submit various forms to be completed by the applicant, and by the person verifying the circumstances surrounding the disability. It is our view that the verification provided must verify the circumstances of the impairment, its duration and its effect on the applicant. It cannot, in our view, be expected to verify every detail. For example, in this case, the applicant gave evidence that she wore a brace to alleviate her back pain. Her doctor did not refer to the brace in the form provided him by the Board and did not list it under “Treatment”. In our view, the omission of mention by the doctor of a brace did not preclude the Tribunal from receiving and accepting the applicant’s evidence about the brace.
8Similarly, although the medical form referred to the primary back problem, the Tribunal was not precluded from considering the applicant’s evidence concerning her secondary problems of knee and hip difficulties. Section 4(1) only requires verification of the impairment, duration and restriction. Not all the details giving rise to those criteria must be provided in minute detail. This is particularly so in this case where the doctor elaborated in his report with information about x-rays and said, “The prognosis of her returning to gainful employment is not good” (See Record of Proceedings, page 18).
9Counsel for the Ministry also argues that in finding that the applicant has a substantial impairment in the workplace, the Tribunal failed to give consideration to other employment possibilities of a more sedentary nature. Counsel argues that even if the applicant was disabled from manual labour, the Tribunal had no evidence upon which it could find she was unable to perform more sedentary employment.
10In making this decision, the Tribunal said,
The appellant is a 59-year-old woman with a sixth grade education who has worked in physically demanding factory jobs most of her life.... In 1979, she suffered a fall on icy pavement and injured her back. With the aid of pain medication, she was able to continue working at her assembly line job, but suffered two further falls, the last in 1987. With each subsequent fall, her back pain worsened. In 1986, before her third fall, she had started the first of two jobs as a hotel sanitation worker....
She continued to work in hotel service until 1994, when she was laid off. She had been getting “really slow” as her back got worse and was down to four hours work daily. She was also been forced to take periods of up to six weeks at a time off to spare her back. She has not worked since 1994.
11The Tribunal continued,
12It is our view that the Tribunal was entitled to consider the applicant in the context of her own situation. We are supported in this regard by the wording of s. 4(1) which requires a consideration of “the person”. The test is not whether any person with these impairments and restrictions met the criteria, but whether this person met the criteria.
13We do not find it helpful in the circumstances of this case to engage in an exercise of defining “substantial” as used in s. 4(1) of the Act. The legislation is clear and the applicant clearly fits within the “substantial” test. We would only comment that “substantial” should be interpreted in a manner consistent with the purposes of the Act, set out in s. 1, and in the context of the remedial nature of the statute to be given “such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its intent, meaning and sprit” (Interpretation Act, R.S.O. 1990, c. I.11, s. 10).
14The Tribunal had ample evidence to support its factual findings and correctly applied the law to the facts. The appeal is, accordingly, dismissed except with respect to the starting date of payments. On consent that aspect of the appeal is allowed. Counsel agree the starting date under the ODSPA should be November 1, 1998.
15The Responding counsel does not seek costs.
