DIVISIONAL COURT FILE NO.: DC-09-102
DATE: 2010/06/03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Wilton-Siegel, Koke J.J.
B E T W E E N:
The Director of the Ontario Disability Support Program
R. Givens, for the Applicant
Applicant
- and -
Jason Cherryholme
J. Cherryholme, In Person, for Respondent
Respondent
HEARD: Tuesday, June 2, 2010
REASONS FOR JUDGMENT
J. R.R. JENNINGS, J. (Orally)
- The Director of the Ontario Disability Support Program (“The Director,”) appeals from the decision of the Social Benefits Tribunal (“The Tribunal,”) dated October 16, 2008 made in Kitchener and affirmed on application for reconsideration on January 15, 2009, that found the respondent, Jason Cherryholme, to be a person with a disability within the meaning of s.4(1) of the Ontario Disability Support Program Act, 1970, S.O. 1997, SCH.B (The Act.) The Director requests that the decision be set aside and that a new hearing be granted before a different member of the Tribunal.
Background
- In March 2007, the respondent applied for income support as a person with a disability under the Act. The Act defines a person with a disability for the purpose of income support as follows:
S.4(1). A person is a person with a disability
for the purposes of this Part 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 these activities of daily living; and,
(c) the impairment and its likely duration and the restriction of the person’s activities of daily living have been verified by a person with prescribed qualifications.
The Disability Adjudication Unit denied the respondent’s application. An internal review was conducted by the Unit, which confirmed its initial decision on June 21st, 2007. On July 9th, 2007 the respondent appealed the decision of the Unit to the Tribunal.
The Tribunal hearing was held on October the 8th, 2008 before Member Nathan Ferguson. Member Ferguson released his decision on October 16, 2008. He found Mr. Cherryholme to be a person with a disability pursuant to s.4(1) of the Act.
On December 12th, 2008 the Director applied for a reconsideration and this was dismissed on January 15, 2009 by the acting chair of the Tribunal, Frank Miclash.
On February 10th, 2009 the Direction appealed to this court.
On the hearing of the appeal, Mr. Cherryholme appeared in person. He had filed no material in response to the appellant’s material, but we offered and he accepted an opportunity to make submissions on his own behalf.
Key Issues
- The Director raises the following key issues:
Did the Tribunal err in law by finding the respondent to be a person with a disability, without making a finding as to whether there was verification of a restriction in activities of daily living?
Did the Tribunal err in law by finding there was a “substantial impairment” on oral evidence, disregarding the medical evidence?
Did the Tribunal err by considering irrelevant factors?
Jurisdiction
- Pursuant to s.31 (1) of the Act, the Divisional Court has jurisdiction to hear an appeal only on a question of law.
Standard of Review
We accept the Appellant’s submissions that standard review of the Tribunal’s decision is correctness. Jurisprudence supports that the standard of review of the Tribunal is correctness, see Ontario (Director, Disability Support Program) vs. Gallier [2000] OJ Number 4541 (Div Court), where the court held at paragraph 6
The Tribunal’s decisions are not binding
on other panels and the Tribunal does
not exercise policy-making or regulatory
functions. There is a statutory right of
appeal to this court on a question of law.
The court, on appeal, will ask itself
whether the Tribunal was “correct” in its
interpretation of the legislation.
Analysis
- To conclude that the respondent was a person with a disability, the Tribunal had to make the three findings required of it by s.4(1) of the Act. In Crane vs. Ontario (Director, Disability Support Program,) 2006, OJ Number 4546, the Court of Appeal summarized the test at paragraph 25 of its decision in the following language:
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.
In Crane, the Court of Appeal stressed that,
Verification was required for each of substantial
impairment and substantial restriction on activities
of daily living, and
- The core of the concept of impairment was
medical.
With regard to restrictions in activities of daily living, the only medical evidence before the Tribunal was the Health Status Report, which included an Intellectual and Emotional Wellness Scale and an Activities of Daily Living Index. This document was completed by the respondent’s family doctor, Dr. Kane. In that report Dr. Kane stated the respondent had one condition only, “depression”, and the impairment was “panic attack.” The restriction was “unable to sleep more than four hours at a time. Daily headaches.” A referral had been made, presumably by Dr. Kane, to a psychiatrist, Dr. Singh, in June 2006, but no reports or notes from Dr. Singh were on Dr. Kane’s file.
On the Emotional Wellness Scale where signs of intellectual or psychological conditions in 13 areas can be listed, Dr. Kane noted no symptoms or signs in six categories and minimal signs or symptoms (two on a scale of one to four, where one is indicative of no signs,) in seven categories. With respect to the activities of daily living, Dr. Kane indicated all 24 categories listed were within normal limits and wrote no explanatory comments in the space provided for that purpose.
The Tribunal referred to the medical evidence in support of the appellant’s claim as being weak. It referred to Dr. Kane’s findings of normalcy on every category of the Activities of Daily Living Index. The Tribunal, however, accepted the evidence of the respondent that he was reluctant to provide to Dr. Kane a true picture of his emotional status because his estranged wife was an employee in the Doctor’s office and he did not wish her to know of his emotional disability. The Tribunal then accepted the respondent’s self-assessment of emotional disability and restrictions in his daily living activities.
Clearly, there was virtually no credible medical evidence before the Tribunal in support of the claim for disability and the required verification by a qualified person was utterly lacking. No explanation was given as to why verification could not have come from Dr. Singh or some other medical practitioner.
The Tribunal’s failure to make a finding of verification by a prescribed professional of any restrictions in activities in daily living is in our opinion an error in law.
As well, the Tribunal erred in law in accepting the respondent’s elaboration of the medical evidence that had been given by the doctor, as verification. (See Director, Ontario Disability Support Program v. Cumming, September 4, 2001, page 2 (Ontario Div. Court – unreported.)
Absent a finding of verification, the statutory requirements under the Act for eligibility have not been met.
We are conscious of direction given by the Court of Appeal in Gray v Ontario (Disability Support Plan, Director,) [2002] OJ Number 1531 at paragraph 9 where Chief Justice McMurtry states,
As 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, RSO 1990, C.1.11 provides,
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.
That said, the legislature has incorporated into s.4(1) of the Act a mandatory verification procedure to protect the integrity of the process. The verification is lacking. That being so, it is not necessary for us to consider any other issues raised by the Director.
The appeal must be allowed, the decision under review must be set aside and the matter remitted for a re-hearing before a different Tribunal member.
No costs being requested, none are allowed.
J.R.R. JENNINGS J.
H. WILTON-SIEGEL J.
E. KOKE J.
Released: June 3, 2010
DIVISIONAL COURT FILE NO.: DC-09-102
DATE: 2010/06/03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Wilton-Siegel, Koke J.J.
The Director of the Ontario
Disability Support Program
Applicant
- and -
Jason Cherryholme
Respondent
REASONS FOR JUDGMENT
J.R.R. JENNINGS J.
H. WILTON-SIEGEL J.
E. KOKE J.
Released: June 3, 2010