COURT FILE NO.: DV-564-02

DATE: 2005/01/21

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

PARDU J., CUNNINGHAM J., HENNESSY J.

B E T W E E N:

SANDRA SANDIFORD

Appellant

• and -

DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES

Respondent

G. Kurke, for the Appellant

R. Givens, for the Respondent

HEARD: December 13, 2004

Pardu, J.

1This is an appeal from a decision of the Social Benefits Tribunal affirming a decision of the Director of the Ontario Disability Support Program that Sandra Sandiford was not a “person with a disability” as defined by the Ontario Disability Support Program Act, 1997, ¹ on the ground that there was insufficient “verification” of her claim.

2Both parties agree that an appeal lies to this court on a question of law alone and that the standard of review is correctness.

3The ODSPA came into force on June 1, 1998, replacing the Family Benefits Act, and establishes the framework of a regime providing public assistance to disabled persons. Others in need of welfare benefits must apply pursuant to the Ontario Works Act.² which is intended to provide “temporary financial assistance to those most in need while they satisfy obligations to become and stay employed.” These welfare benefits are approximately 40% lower than those provided to persons under disability.

4Section 4(1) of the ODSPA provides that 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 qualifications.

5Accordingly, to satisfy the test for disability, a person must establish,

1. A substantial impairment (physical or mental);

2. An impairment that is continuous or recurrent and expected to last one year or more,

3. 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.

4. The impairment, its duration and the restriction have been verified by a person with prescribed qualifications.

6Subsection 4(1)(c) requires that a person with prescribed qualifications verify the Appellant’s impairment, its duration and the restrictions it imposes on his or her life. Section 46 of the Regulations lists various health professionals such as physicians, psychologists and nurse practitioners who are so qualified,

46(1) For the purpose of subsection 4(1) of the Act, the following persons may verify that a person has a substantial physical or mental impairment and its likely duration.

1. A member of the College of Physicians and Surgeons of Ontario.

2. A member of the College of Psychologists of Ontario.

3. A member of the College of Optometrists of Ontario. O. Reg. 222/98, s. 46 (1); O. Reg. 581/98, s. 10(1).

(2) For the purpose of subsection 4(1) of the Act, the following persons may verify whether the direct and cumulative effect of an 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:

1. The persons listed in subsection (1).

2. A member of the College of Occupational Therapists of Ontario.

3. A member of the College pf Physiotherapists of Ontario.

4. A nurse practitioner registered with the College of Nurses of Ontario as a registered nurse – extended class.

5. A member of the College of Chiropractors of Ontario.

6. An audiologist who is a member of the College of Audiologists and Speech-Language Pathologists of Ontario. O. Reg. 222/98, s. 46(2); O. Reg. 581/98, s. 10(2).

Proceedings

7The first step in a claim for disability benefits is an application form submitted to a “Disability Adjudication Unit” in Toronto. The Appellant applied for these benefits on March 12, 2001. On June 4, 2001, the unit decided she was not a person with a disability on the ground that she “did not have a substantial physical or mental impairment that is continuous or recurrent.” On June 20, 2001, she requested an internal review which on June 22, 2001 confirmed the initial decision. The Appellant filed a further appeal in July 2001.

8The Act requires the internal review before an appeal can be pursued (s. 22(1) ODSPA). The Social Benefits Tribunal issued a notice of hearing of the appeal for June 11, 2002. While described as an appeal, the Act and regulations contemplate that evidence may be presented at the hearing.

9Section 23(9) of the Act provides,

The parties to a hearing shall be given an opportunity before the hearing to examine any written or documentary evidence that a party proposes to introduce at the hearing, as prescribed.

10Section 65 of the Regulations provides,

(1) The Appellant shall present his or her case first on an oral hearing of an appeal before the Tribunal unless the Director agrees otherwise. O. Reg. 222/98, s.65(1).

(2) Unless the parties agree otherwise, a party who intends to produce written or documentary evidence or written submissions at an oral hearing shall provide copies of that evidence or those submissions to the other parties and the Tribunal,

(a) in the case of the Appellant, at least 20 days before the hearing; and

(b) in the case of the Director and any other parties, at least 10 days before the hearing. O. Reg. 222/98, s. 65(2).

(3) If a party does not produce evidence or submissions in accordance with subsection (2) of subsection 62(2), the Tribunal may, on the terms and conditions it considers appropriate,

(a) adjourn the hearing;

(b) refuse to accept the evidence or written submissions; or

(c) accept the evidence or written submissions. O. Reg. 222/98, s. 65(3); O. Reg. 581/98, s. 13.

11The Tribunal decision was made on August 13, 2002. The Appellant filed a request for reconsideration by the tribunal pursuant to s. 68 of the Regulations on October 3, 2002 which was denied on October 28, 2002.

Tribunal Decision

12The Tribunal held, (emphasis added)

The Tribunal determines that the Appellant has not established with the required verification that her physical and mental impairments, taken separately or cumulatively, amounted to substantial within the meaning of section 4(1) of the Ontario Disability Support Program Act at the time of the Director’s decision of 4 June 2001 for the following reasons.

The Tribunal is of the opinion that the Appellant has failed to provide the required verification in the documents filed in support of her application and appeal to establish on the balance of probabilities that her physical and mental impairments secondary to her medical conditions amount to substantial.

The Tribunal also accepts the diagnosis of mixed receptive expressive language disorder and accepts that this condition or impairment was present at the time of the Director’s decision. However, the Tribunal does not accept that there is sufficient verification to indicate that this impairment amounts to substantial or gives rise to a substantial restriction in the Appellant’s ability to function in a workplace. The Appellant has been able to upgrade her education to the point where she is one credit short of grade 12. she appears to be able to interact with people and as suggested by her doctor, appears to manage adequately in her community. The Tribunal is not satisfied that the evidence established that her mental impairments preclude her from functioning adequately in a sedentary or light workplace such as a parking lot attendant where the education and skill level requirement would be relatively low.

The Tribunal acknowledges that the Appellant’s testimony differed significantly from the information provided by her doctor. However, an Appellant may provide clarification or confirmation or verification provided by a person with prescribed qualification. An Appellant’s testimony cannot substitute for verification not present.

Accordingly, for the reasons mentioned above, the Tribunal finds that the Appellant has not established with the required verification that her impairments, taken separately or cumulatively, amount to substantial within the meaning of section 4.(1) of the Ontario Disability Support Program Act. It is open to the Appellant to reapply for income support under the Ontario Disability Support Program Act.

13The Appellant gave evidence before the Tribunal. In addition, the evidence included a chart entitled “Activities of Daily Living” completed by a registered nurse practitioner, a Health Status report and two medical reports completed by the Appellant’s family physician, and a comprehensive psychological assessment completed by a registered psychologist dated March 20, 2002.

14The physician reported on June 18, 2001 that she had been seeing the Appellant on a monthly basis since November 1999 for chronic back pain, which she indicated “may mostly affect the Appellant’s ability to work.” The Appellant weighed 287 pounds, and this aggravated her back condition. She took Tylenol 3, Percocet and Elavil for the chronic pain which the doctor indicated would prevent her from functioning in a workplace that required prolonged standing or sitting.

15The physician also confirmed that the Appellant has suffered from recurrent depression. She has been taking antidepressants for many years, most recently 40 mg. Celexa daily since July 2000.

16The psychologist’s report dated March 20, 2002 outlines a thorough history taken and the results of a battery of tests: Dr. Bassis concluded,

Sandra’s verbal functioning is very limited. Her verbal limitations result in a substantial restriction on her ability to function in the workplace. She would have great difficulty upgrading her academic skills and she would not be able to function in jobs requiring a facility with language. She is limited to working in manual labour types of jobs or ones that emphasize visual motor skills. These tend to be unskilled or semi-skilled kinds of work.

Sandra thinks she left school while in grade 10. She did not have special education while in elementary school but was placed in an adapt program in high school. This program was for behaviour problems. She earned a few half credits while pregnant at seventeen years old. She also attended St-Albert’s school once for three months and a second time for five months. She is one credit short of a grade 12 diploma. She has not worked outside the home as an adult. She has been an at-home mother since she was eighteen years old. She started having back problems and migraine headaches after her first pregnancy. She needs to rest frequently and paces herself while doing household chores. She also has problems with her feet when she walks a lot.

This testing has found that Sandra’s academic skills are low. Her vocabulary is very limited, as well as her ability to understand and communicate with language. She would have great difficulty upgrading her academic skills and working in jobs requiring a facility with language. She could not improve her academic skills to the level where she could compete for the types of jobs required by her physical limitations. Sandra’s learning disability is an expressive and receptive language disorder.

Sandra is experiencing a severe level of pain that is substantially interfering with her ability to function in the home and community. She is severely depressed and agitated. The agitation is experienced and reported as anxiety. She is starting to avoid social company, which exacerbates her thinking problems of confusion and distractibility. Sandra also has a history of depression and is severely depressed now. She needs to be involved in treatment that includes medical, psychological, and behavioural interventions. She is also suffering significant environmental stress from having lost her possessions in a fire and the possibility of a diagnosis of a brain tumour for one of her twins. She is incapable of finding work or working in her current condition and circumstances.

In brief,

1. Sandra has a substantial mental impairment that is continuous and likely to continue for more than a year. Her impairment is a combination of a expressive – receptive language disorder; low academic skills, limited verbal intellectual functioning, and psychological problems which include a Major Depression and difficulty adjusting to her pain and life changes. Her psychological problems are likely to last longer than a year, even if she were involved in an appropriate treatment program.

2. The Direct and cumulative effect of Sandra’s impairment results in a substantial restriction of her ability to function in the community and workplace. Her verbal intellectual limitations prevent her from upgrading her academic skills to the level required for the types of jobs necessitated by her physical condition. Her psychological problems of depression and anxiety severely hamper her ability to adjust to her situation.

3. Sandra’s impairment, its likely duration, and its restriction on his ability to function in daily activities have been verified by this assessment.

Analysis

17The Tribunal erred in concluding that the medical and psychological evidence filed did not constitute verification of the Appellant’s impairment. The health professional need not verify every aspect of the Appellant’s condition. Once the existence of impairments and restrictions has been verified the tribunal must determine whether the impairment and restrictions are substantial.

18As noted in Ontario v. Matthews [2000] O.J. No. 5305 Divisional Court, at paragraph [16],

It is common ground that the required verification is only as to the existence of the impairment, its likely duration, and a resulting restriction in activities. The decision as to the substantiality of those conditions is a matter for the Tribunal.

19The member did not define what degree of confirmation he understood to constitute “verification” within the meaning of section 4(1)(c), but he clearly attributed to it a meaning that exceeded the level described in Ontario v. Matthews and erred in law in so doing so. As noted by McMurtry C.J.O. in Gray v Ontario, [2002] 212 D.L.R. (4th) 353 at paragraphs [9], [10], [13], [15], & [16],

9As remedial legislation, the ODSPA should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities. Section 10 of the Interpretation Act, R.S.O. 1990, c. I.11 provides:

10. Every Act shall be deemed to be remedial ... and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

10It is my view that as social welfare legislation, any ambiguity in the interpretation of the ODSPA should be resolved in the claimant’s favour.

13It should also be noted that the current definition of a disabled person is much more generous than the previous version. For instance, the qualifiers “major” and “severe” have been replaced by the more moderate “substantial”. Also, instead of a “prolonged period of time”, an impairment is now required to last “one year or more.”

15Compared with its predecessor and with similar federal legislation, it would appear that the current definition of “person with a disability” in the ODSPA was intended to encompass a broader segment of society and to provide assistance to persons with significant but not severe long-term functional barriers.

16With respect to the interpretation of the word “substantial” in s. 4(1)(a) of the ODSPA, I am of the view that the word should be given flexible meaning related to the varying circumstances of each individual case in a manner consistent with the purposes of the Act.

20Verification is intended to weed out spurious claims. Where the verification indicates an arguable basis for the impairment, its duration and the restriction alleged, the Tribunal must then evaluate the whole of the evidence to assess whether the statutory test is met. The medical and psychological evidence filed in support of the Appellant’s claim provided ample verification of her impairments. The members’ conclusion that her claim was unverified coloured his assessment of her oral evidence and was the basis for the denial of the claim.

21In addition, the member erred in drawing an adverse inference from the fact that a nurse practitioner completed the required “Activities of Daily Living Report” on the ground that she was not a person involved in her treatment. The nurse practitioner had known the Appellant for two years. In light of demands made upon physicians’ time and the shortage of general practitioners, resort to other persons with prescribed qualifications is not unreasonable. The nurse practitioner was authorized by the regulations to complete the form.

22Finally, the Tribunal misapprehended the test. While it was appropriate to consider the effects of the Appellant’s conditions upon her ability to work in assessing whether she suffered from substantial impairment, the conclusion that there was a job which she might be able to perform, did not address the question of whether there was a substantial impairment. The fact that the Appellant is not precluded from one kind of employment does not mean that she did not suffer from a substantial impairment.

23As a result of the foregoing errors of law the decision of the Tribunal must be set aside.

Remedy

24Section 31(5) of the ODSPA provides,

In an appeal to the Court of a decision of the Tribunal, the Court may,

(a) deny the appeal;

(b) grant the appeal;

(c) grant the appeal in part; or

(d) refer the matter back to the Tribunal or the Director for reconsideration in accordance with any directions the Court considers proper.

25In this case, we have concluded that rather than remitting the matter back to the Tribunal, we should simply allow the appeal and order that the Appellant is eligible for income support as a “person with disability” under the ODSPA, effective April 1, 2001.

26Given the Appellant’s serious language disorder, little reliance could be placed upon her oral evidence. This matter would have to be determined primarily on the basis of the medical and psychological evidence filed. This matter has been outstanding since 2001. This court is as able as the Tribunal to apply the statutory test to the written medical evidence. There is urgency to this matter. The Appellant has been living in poverty with three young children, and her medical condition has worsened. She has become severely depressed. The Tribunal accepted this diagnosis, but found it became severe in 2002. The Tribunal concluded that it could not therefore be considered as factor relating to her health in 2001, but invited her to reapply for benefits.

27The assessment as to whether a person has a substantial physical or mental impairment must consider the various conditions individually and cumulatively. It is not necessary to break down the analysis to every part of the mind or body affected and find that at least one disorder is substantial. Such artificiality would detract from the person centered and remedial purposes of the ODSPA. To analyze each physical or mental disorder separately and require that each separately result in a “substantial restriction” as argued by the Respondent would deprive “cumulative” of any meaning in s. 4(1)(b).

28There is ample evidence that the Appellant’s back pain, headaches, recurrent depression (even at the 2001 level) and mixed receptive language disorder cumulatively constitute a substantial impairment which results in a substantial restriction in her ability to function in the workplace. Her back problem prevents her from doing many forms of manual work; her language disorder excludes many other forms of employment; her depression makes it difficult for her to work or follow up on treatment recommendations. While she has been given some grade 12 credits, her reading comprehension is actually at a 6.9 grade level and her arithmetic skills are at a grade 5.3 level.

29These conditions cumulatively constitute a substantial impairment that substantially restricts her ability to function in the workplace. There is no real dispute that these conditions are continuous or recurrent and likely to last more than one year.

30An order will therefore issue setting aside the Tribunal decision of August 13, 2002 and declaring that the Appellant is eligible for income support as “a person with disability” under the ODSPA, effective April 1, 2001. If costs are in issue, the parties may make written submissions within 30 days.

Pardu, J.

Cunningham, A.C.J.

Footnotes

1. 1S.O. 1997 c. 25 Schedule B.
2. 2S.O. 1997, Schedule A of Social Assistance Reform Act, 1997 c. 25