CITATION: Ontario (Disability Support Program) v. Mohamed, 2011 ONSC 4224
DIVISIONAL COURT FILE NO.: 3/10
DATE: 20110705
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUMMING, LAX AND SWINTON JJ.
BETWEEN:
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Appellant
– and –
FUAD MOHAMED
Respondent
Mimi N. Singh, for the Appellant
Sarah Shartal Levinthal, for the Respondent
HEARD at Toronto: July 5, 2011
SWINTON J. (orally)
[1] The Director of the Ontario Disability Support Program appeals from a decision of the Social Benefits Tribunal dated August 31, 2009, which found that the respondent (“the Claimant”) was a “person with a disability” within s.4(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c.25, Sch. B.
[2] Section 4(1) of the Act provides:
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 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.
[3] An appeal lies to this Court only on a question of law (see s.31 of the Act), and the standard of review is correctness.
[4] The Director argues that the Tribunal erred in finding a substantial impairment based, in part, on the Claimant’s testimony. The Director submits that s.4(1)(c), read in context, requires medical evidence to verify the requirement in s.4(1)(a) of a “substantial” impairment that is continuous or recurrent and is expected to last one year or more. In this case, the Director argues that there was no verification of a “substantial” impairment by a physician.
[5] The Director relies on the decision of the Court of Appeal in Ontario (Director, Disability Support Program) v. Crane (2006), 2006 38348 (ON CA), 83 O.R. (3d) 321, where the Court held that the core of the concept of impairment is medical (at paragraph 18). The Court held that there are three separate factors that the Claimant must establish in s.4(1): substantial impairment, substantial restriction in certain activities and verification. Notably, it said (at paragraph 25):
[25] Finally, in some cases (but not all) there can be an overlap in the evidence relevant to the factors in paras. (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] In the present case, the Tribunal found that while the medical evidence was weak, that evidence, considered with the Claimant’s testimony, proved a substantial physical impairment and substantial restriction on his activities of daily living. Specifically, the Tribunal stated at page 4 of the Reasons:
With this combination of medical evidence, credible testimony and the cumulative consideration, the Tribunal is able to assess a more complete picture of the Appellant’s level of impairment, as opposed to the Director’s more limited review of only the medical evidence.
[7] The Tribunal went on to say:
The Tribunal’s decision is determined by both the Appellant’s credible and forthright testimony and on the strength of the medical evidence presented as to the impairments and restrictions the medical conditions place on the Appellant.
[8] In our view, the Tribunal did not err in law in relying on the Claimant’s evidence as it did. Reading the reasons as a whole, it is clear that the Tribunal was aware of the need for medical evidence to verify the impairment (see the Reasons, page 2).
[9] In determining whether the impairment was substantial, the Tribunal was permitted to consider both the medical conditions and the particular circumstances of the Claimant (see Gray v. Director of the Ontario Disability Support Program, 2002 7805 (C.A.) at para. 25 and Crane above at para. 28).
[10] There was medical evidence, which the Tribunal accepted, that the Claimant suffered from four medical conditions: degenerative disk disease, osteoarthritis, diabetes II and non-alcoholic steatohepatitis. These conditions were continuous in duration and expected to last one year or more. Three of the four conditions were expected to deteriorate. Three conditions imposed restrictions on his ability to work.
[11] Having regard to the medical evidence and the Claimant’s evidence about the impact of those conditions, which the Tribunal found credible, the Tribunal concluded that the impairments were substantial. It made no error of law in coming to that conclusion. There was medical evidence verifying the impairments suffered by the Claimant as well as the restrictions on his activities of daily living.
[12] This is not a case like Ontario (Director, Disability Support Program) v. Cherryholme, [2010] O.J. No. 2363 (Div. Ct.), where there was no medical evidence of restrictions on daily activities and “virtually no medical evidence” of an impairment (see paras. 16 and 17).
[13] Paragraph 4(1)(c) of the Act requires verification of an “impairment”, its likely duration and the restriction on the person’s activities of daily living by a person with the prescribed qualifications. However, it is for the Disability Adjudication Unit, in the first instance, and the Tribunal, on appeal, to determine whether there has been a “substantial impairment” and a “substantial restriction” within the meaning of paras. 4(1)(a) and (b). This determination requires consideration of the totality of the evidence including the medical evidence and the evidence of the Claimant.
[14] In our view, this interpretation accords with the authoritative decisions in Gray and Crane above. See also Sandiford v. Ontario (Director, Disability Support Program), 2005 5491 (ON SCDC), [2005] O.J. No. 854 (Div. Ct.) at para 20.
[15] For these reasons, the appeal is dismissed.
CUMMING J.
[16] The appeal is dismissed for the oral reasons given. No costs to either party.
SWINTON J.
CUMMING J.
LAX J.
Date of Reasons for Judgment: July 5, 2011
Date of Release: July 8, 2011
CITATION: Ontario (Disability Support Program) v. Mohamed, 2011 ONSC 4224
DIVISIONAL COURT FILE NO.: 3/10
DATE: 20110705
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUMMING, LAX AND SWINTON JJ.
BETWEEN:
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Appellant
– and –
FUAD MOHAMED
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: July 5, 2011
Date of Release: July 8, 2011