COURT FILE NO.: 481/01

DATE: 20030203

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

blair r.s.j., lang and c. campbell jj.

B E T W E E N:

VITO GIRONDA

Appellant

• and -

DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM, MINISTRY OF COMMUNITY AND SOCIAL SERVICES

Respondent

Simon Shields, for the Appellant

Rebecca Givens, for the Respondent

HEARD: February 3, 2003

BLAIR R.S. J.: (Orally)

1Mr. Gironda was an applicant for income support as a disabled person under the Ontario Disability Support Program Act, S.O. 1997, c.25, Schedule B ("the Act").

2On June 12, 2000, his application was denied by the Director of the Ontario Disability Support Program. Mr. Gironda appealed to the Social Benefits Tribunal ("the Tribunal") which on March 22, 2001, upheld the Director's decision that the appellant was not a "disabled person" within the meaning of s.4 of the Act. A request to alter that decision on reconsideration was also rejected on June 20, 2001.

3Mr. Gironda now appeals the Tribunal's decision to this Court, pursuant to s.31 of the Act, which provides for an appeal to the Divisional Court on a question of law. Counsel are in agreement that the standard of review on such an appeal is that of "correctness".

4The primary ground of appeal is that the Tribunal dismissed the bulk of the medical evidence that was before it (which, it was submitted, is strongly in favour of Mr. Gironda) and in doing so disregarded, failed to appreciate and misdirected itself with respect to relevant evidence. Mr. Shields submits this constitutes error in law: see R. v. B.(G.), [1990] 2 S.C.R. 57 at paragraphs 31 and 33. The substance of this submission was founded on the argument that the Tribunal erred in finding Dr. Strashin was Mr. Gironda's "most recent family physician" and "the longer-standing family physician" rather than Dr. Sokol, and in discounting the contents of the health status report and the activities of daily living report accordingly.

5We do not accept this submission. The Tribunal gave a lengthy and carefully reasoned decision. It was alive to the medical reports, the medical history and the issues raised in the documentation and testimony before it. In particular, it heard testimony from Mr. Gironda himself that contradicted or was inconsistent with the information contained in the medical record. The Tribunal weighed this testimony and made findings contrary to Mr. Gironda; it was entitled to do so.

6In its reasons the Tribunal stated:

"The Tribunal has completed a thorough review of the twenty-six plus medical documents submitted by the Appellant's Counsel, and notes that of the 8 emergency visits chronicled, 5 are related to bowel or hemorrhoid issues, 1 visit in 1998 for possible back pain, with two others for conditions not being considered by this Tribunal. The Tribunal notes Dr. St (Strashin) is identified on more than 10 of the medical documents/reports as the family physician in 1999, Dr. T. as the family physician on 5 occasions (1996 to 1999) and Dr. So (Sokol) on only one document in November 1998. Although the Tribunal appreciates that the appellant's interest in his health care involves having 2nd and 3rd opinions from different family physicians, the Tribunal observes that Dr. So completed the Activities of Daily Living and Health Status Reports rather than his most recent family physician Dr. St who appears to be copied many of the more current medical documents. As well, the Tribunal notes that the Appellant and his Counsel are in receipt of correspondence from only Dr. So and Dr. T. (the Appellant's other family physicians) and none from Dr. St. The Tribunal has concerns about Dr. So being sufficiently informed enough about the Appellant's health care, and consequently his ability to complete the Activities of Daily Living and Health Status Reports in an informed manner, since Dr. So appears not to be in receipt of the most recent hospital medical reports. Therefore, the Tribunal does not place as much weight on the information contained within the Health Status Report and the Activities of Daily Living report as the Tribunal may have, had the longer standing family physician completed the forms, since he had seen the Appellant most recently and appears to have been copied on many of the many medical reports.

…"Was the test for being disabled met?

The Tribunal finds that the Appellant's conditions do not amount to substantial impairments.

Although there was a preponderance of medical documents submitted by the Appellant's Counsel, the Appellant's testimony was reluctant and vague. A number of questions posed to the Appellant by the Tribunal on his work and education history required two or three attempts to elicit complete information. The Appellant was not forthcoming with the answers. The Tribunal notes the discrepancies between the Appellant's testimony and the information contained within the Activities of Daily Living and the Health Status Report. As well, this information was not completed by the family physician that treated the Appellant most recently.

Because of the concerns the Tribunal has surrounding the number of concurrent family physicians, the numerous conflicts between the Appellant's testimony and the medical reports, plus the lack of correlation between the Health Status and the Activities of Daily Living reports and the notes of Dr. R (December 20, 2000) and Dr. V (March 2000), and the Appellant's testimony, the Tribunal does not grant the appeal. The evidence presented to the Tribunal had many conflicts and did not demonstrate substantiality of the Appellant's impairments at the time of the review, and the impact it has on his capacity to function at home or in the community or in the workplace.

The Tribunal found that all parts of the criteria in Section 4(1) of the Act were not met and therefore finds the Appellant was not a person with a disability within the meaning of the legislation."

7In our opinion, the Tribunal did not disregard, fail to appreciate or misdirect itself with respect to relevant evidence in concluding that the Health Status Report and the Activity of Daily Living Report would have been entitled to more weight had they been completed by "the longer-standing family physician" Dr. Strashin, Mr. Gironda's "most recent family physician." There was evidence upon which that conclusion and those findings could be based looking back in time from December, 1999 when the reports were prepared. We can find no palpable or overriding error of fact on the part of the Tribunal and are not able to come to the conclusion that the Tribunal's decision was not correct. Accordingly, the appeal is dismissed.

8The record has been endorsed as follows: "This appeal is dismissed for oral reasons delivered by Blair R.S.J. The respondent does not seek costs and there will be no order as to costs."

BLAIR R.S. J.

LANG J.

C. CAMPBELL J.

Date of Reasons for Judgment: February 3, 2003

Date of Release: February 19, 2003

COURT FILE NO.: 481/01

DATE: 20030203

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

blair r.s.j., lang and c. campbell jj.