COURT FILE NO.: 168/05

DATE: 20070411

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, KITELEY AND CORBETT JJ.

B E T W E E N:

SHARON LLOYD

Appellant

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DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM

Respondent

Deirdre M. McDade and Jessica Michael, for the Appellant

Cheryl Ellison, for the Respondent

HEARD at Toronto: April 11, 2007

lederman J.: (Orally)

1The appellant, Sharon Lloyd appeals the decision of the Social Benefits Tribunal which upheld the decision of the Director of the Ontario Disability Support Program, that the appellant was “not a person with a disability” within the meaning of s.4(1) of the Ontario Disability Support Program Act, 1997 (“ODSPA”).

2The Director and the Tribunal held that the appellant was not a person with a disability because she did not meet the first threshold under the legislation. That is, she did not have “a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more”. The Tribunal did not think that the appellant’s chronic pain condition amounted to substantial impairment because of her level of activity, conservative pain medication, lack of physiotherapy recommended or required and ability to do volunteer work.

3The appellant testified that she suffered from chronic pain arising from arthritis that affected her all the time but which varied in intensity depending on whether she was having a good or bad day and depending on the season and weather conditions. Whether she would have a good or bad day was unpredictable. This had an impact on her activities of daily living. On her bad days she suffered significant restrictions on her activities. She said that she has three to four bad days per week. Since a substantial impairment can be “recurrent” under s.4(1) of the ODSPA, an impairment can be substantial even if a person is sometimes not impaired at all.

4We are all of the view that the Tribunal erred in law by applying the wrong test in that it assessed the appellant’s condition on her good days when she had a higher level of physical activity as opposed to assessing her condition during her recurrent bad days.

5The Tribunal also failed to make findings respecting the frequency and unpredictability of bad days in its analysis of whether the appellant had a substantial impairment.

6On this ground alone, we would allow the appeal. Because the Tribunal did not find substantial impairment, it did not deal with the question of the effect of the impairment on restrictions of the appellant’s activities of daily living.

7We therefore refer this matter back for a fresh hearing before a different panel of the Tribunal. Given the appellant’s new medical condition, that hearing should be expedited. As agreed by counsel, there will be no costs of this appeal.

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LEDERMAN J.

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KITELEY J.

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CORBETT J.

Date of Reasons for Judgment: April 11, 2007

Date of Release: April 17, 2007

COURT FILE NO.: 168/05

DATE: 20070411

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, KITELEY AND CORBETT JJ.

B E T W E E N:

SHARON LLOYD

Appellant

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