COURT FILE NO.: 57/04

DATE: 20050302

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FERRIER, GROUND, PITT J.J.

B E T W E E N:

SLAVTCHO PETROV DETCHEV

Applicant

• and -

THE SOCIAL BENEFITS TRIBUNAL THE DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM

Respondent

In person

M. J. Dougherty for the Respondent, The Social Benefits Tribunal

Geoffrey Baker for the Director, The Ontario Disability Support Program

HEARD: October 6, 2004

Pitt J.

AMENDED REASONS FOR JUDGMENT

1This is an application for judicial review of decisions of the Social Benefits Tribunal of The Ontario Disability Support Program dated January 7, 2004 and March 11, 2004.

2The grounds for the application are set out in the applicant’s factum as follows:

(a) The Tribunal made an error in law by overlooking the medical evidence that was before it and in doing so regarded, failed to appreciate and misdirected itself with respect to relevant evidence.

(b) The Tribunal made an error in law by overlooking the fact that Mr. Detchev left his employment due to severe lower back pain. Hence, Mr. Detchev was not able to function in his workplace.

(c) The Tribunal made an error in law by overlooking the fact that Mr. Detchev’s native language is other than English or French, and he completed his education in the Bulgarian language.

(d) The Tribunal made an error in law by overlooking the fact that Mr. Detchev did not have employment in Ontario other than operating machines in a manufacturing environment.

(e) Pursuant to section 2(2) of the Judicial Review Procedure Act, the court has the power to set aside the decision of the Tribunal for error of law on an application for judicial review.

(f) The Tribunal concluded that Mr. Detchev was not a person with a disability as defined in section 4(1) of The Ontario Disability Support Program (the “ODSP”), but it failed to provide evidence.

(g) Pursuant to section 2 (3) of the Judicial Review Procedure Act, the Tribunal should have based its decisions on evidence, and if there is no such evidence, the court may set aside the decision on an application for judicial review.

PRELIMINARY MATTERS

3The applicant submitted that the Tribunal had refused to accept three medical documents submitted by him.

The respondents advised the court that there is no evidence on record of attempts to file these documents; and the alleged failure to receive the documents was not a ground mentioned in the notice of application. In any event, for the purposes of the application, the documents were all included in the material.

We agree with the submission of the respondents that the subject documents could have had no impact on the decision of the Tribunal.

THE ISSUES AND THE LAW

4The applicant properly identified the following issues:

(a) Did the Tribunal err in law by disregarding, failing to appreciate, or misdirecting itself with respect to relevant evidence?

(b) Did the Tribunal make findings of fact in the absence of evidence?

5We are of the view that whatever standard of review is applied, the Tribunal was correct in its interpretation of the legislation (see Director of the Ontario Disability Support Program v. Gallier (unreported), November 30, 2000, (Div. Ct.)); and in any event, we can find no error on the record that would justify interference.

6In particular, we noted that Dr. Stein’s report was considered by the Tribunal and referred to in its decision contrary to the assertions of the applicant; although, Dr. Stein was not mentioned by name.

7The ODSP statutory provision with which the Tribunal dealt is the following:

4. (1) A person is a person with a disability 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 the 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 qualification.

8The Tribunal found that the applicant did not meet the first test set out in paragraph 4 (1)(a). Nonetheless, it also gave consideration to the second test, and determined that it also was not met.

9One critical aspect of the Tribunal’s decision that would in any event make it difficult for us to intervene is that the Tribunal made credibility findings that confirmed their analysis of the medical evidence that itself was clearly not supportive of the applicant’s position.

DISPOSITION

10The application is dismissed.

COSTS

11The applicant shall make brief written submissions within 30 days of the release of these Reasons only if the respondent is seeking costs and makes similar submissions within 20 days of the release of these Reasons.

Ferrier J.

Ground J.

Pitt J.