Court File and Parties

CITATION: Tim Holmberg v. Director, ODSP, 2010 ONSC 2970

COURT FILE NO.: DV-602-03

DATE: 20100604

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT (SUDBURY)

RE: TIM HOLMBERG, Appellant AND: DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM, Respondent

BEFORE: MOLLOY, D. GORDON and FRAGOMENI, JJ.

COUNSEL: Terence Copes and Madeleine Hebert, for the Appellant Rebecca Givens and Jean Marie Dixon, for the Respondent

HEARD: March 3, 2010

Endorsement

[1] In October 2000, Tim Holberg applied for disability benefits under the Ontario Disability Support Program Act (“ODSPA”), S.O. 1997, c. 25. On January 30, 2002, the Director of the Ontario Disability Support program found Mr. Holmberg was not eligible for benefits because he did not meet the definition of “person with a disability” under s. 4 of the ODSPA. Mr. Holmberg appealed to the Social Benefits Tribunal (“the Tribunal”), which upheld the Director’s decision for written reasons dated April 29, 2003. Mr. Holmberg appeals to this Court from the decision of the Tribunal.

[2] An appeal lies to the Divisional Court from decisions of the Tribunal, but only on a question of law: ODSPA s. 31. It is well-established in the case law, and accepted by both parties, that the standard of review is correctness: Wedekind v. Director of Income Maintenance Branch, 21 O.R. (3d) 289 (C.A.); Ontario, (Director, Disability Support Program) v. Gallier, [2000] O.J. No. 4541 (Div.Ct.).

[3] The appellant submits the Tribunal committed three legal errors:

(i) by ignoring relevant evidence and fundamentally misapprehending other evidence;

(ii) by applying the wrong legal test under the Act; and

(iii) by failing to provide legally sufficient reasons for its decision.

[4] We do not agree that the Tribunal completely ignored relevant evidence, nor that there was any fundamental misapprehension of the evidence. The Tribunal referred to the evidence of the appellant and to the medical report of his family doctor and the Health Status Report completed by that doctor. The Tribunal was clearly aware that there was evidence to support the appellant’s contention that he was totally disabled. However, the Tribunal preferred the opinion of the neurosurgeon. It was possible to interpret that opinion as supporting a conclusion that the extent of Mr. Holmberg’s disability was not as extreme as had been stated by his family doctor. It would also have been open to the Tribunal, based on the evidence before it, to conclude that Mr. Holmberg did have a substantial physical impairment. Such a conclusion may even have been more reasonable based on the evidence. However, this is an appeal on a question of law alone. It cannot be said that the Tribunal so fundamentally misapprehended the facts as to constitute legal error.

[5] Likewise, it does not appear that the Tribunal applied the wrong legal test. The Court of Appeal in Crane v. Ontario (Director, Disability Support Program), [2006] O.J. No. 4546 (C.A.) summarized the test to be applied as follows, at para 25:

In summary, s. 4(1) of the ODSPA presents three questions – substantial impairment, substantial restriction in certain activities, and verification. These are separate questions that require separate analysis and answers. The onus is on the claimant to establish all three factors. Accordingly, if the Tribunal concludes that the claimant has failed to establish one of the factors, it need not deal with the other factors. Finally, in some cases (but not all) there can be an overlap in the evidence relevant to the factors in paragraphs (a) and (b) of s. 4(1). That is because although the concept of impairment is anchored in medicine, the determination of whether an impairment is substantial will require consideration of the whole person, including a person’s ability to function in the domains of personal care, community and workplace.

[6] Essentially, this is a two-step process, with a number of aspects to each step. Verification by a prescribed health care professional is required at both stages. The first stage requires a consideration of whether the applicant has a substantial impairment that is continuous or recurrent and expected to last for more than one year. The second step requires a determination of the impact of the impairment and whether it results in a substantial restriction on activities of daily living, including the ability to attend to personal care, the ability to function in the community, or the ability to function in the workplace.

[7] It appears that the Tribunal accepted that Mr. Holmberg’s condition was recurrent and expected to last more than one year. The Tribunal then proceeded to consider whether there was a substantial impairment. The Tribunal took into account the medical evidence and also considered the fact that Mr. Holmberg was able to see to his daily activities and did not require assistive devices. In considering these functional impacts of the disability, the Tribunal was not conflating the two parts of the test. Rather, it was properly taking into account the impact of the disability on this specific person. The Court of Appeal recognized in Crane that there could be an overlap in the evidence relevant to the two stages of the analysis and that it was appropriate to consider the level of functioning in determining whether an impairment could be said to be “substantial.”

[8] The Tribunal in this case first determined that the impairment was not “substantial” and then stated that since one of the essential criteria had not been met, there was no need to consider the matter further. It is apparent from this that the Tribunal recognized there was a second step to the process, but found it unnecessary to consider the “restriction” stage of the test because of its finding that there was no substantial impairment. The Court of Appeal specifically held in Crane that this is an appropriate approach.

[9] Accordingly, we conclude that the Tribunal did not err with respect to the test it applied.

[10] Finally, we are also of the view that the reasons in this case are sufficient to enable the parties to know the basis for the decision and to permit appellate review. We agree with the submission of counsel for the appellant that the reasons are indeed sparse. It would certainly have been preferable if more fulsome reasons had been given. However, the Tribunal referred to the evidence before it, including the opinion of the neurosurgeon that the appellant’s condition could be managed medically with anti-inflammatory drugs, exercises and maybe a lumbar brace and that the he found that he “looked well and appeared in no distress”. The Tribunal then stated:

The Tribunal finds that the Appellant does not have a substantial physical or mental impairment. This is because he requires no assistive devices, he is able to see to his daily activities on a regular basis and the neurosurgeon has suggested that his symptoms can be managed.

[11] Upon reviewing the reasons as a whole, this Court was able to discern that the correct legal test had been applied and could see the route by which the tribunal reached its conclusion. We conclude that the reasons of the Tribunal are adequate to provide for a meaningful right of appeal, particularly since an appeal is provided only with respect to questions of law.

[12] Accordingly, this appeal is dismissed. The respondent does not seek costs. Given our conclusions on the merits of the appeal, it is not necessary for us to deal with the motion to dismiss the appeal for delay.

MOLLOY J.

D. GORDON J.

FRAGOMENI J.

Date: June 4, 2010