Ontario (Disability Support Program) v. Anwari, 2011 ONSC 4500

CITATION: Ontario (Disability Support Program) v. Anwari, 2011 ONSC 4500

DIVISIONAL COURT FILE NO.: DV-578-09

DATE: 20110812

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM, A.C.S.C.J., MATLOW and LEDERER, J.J.

BETWEEN:

DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM Appellant

– and –

PARVEEN ANWARI Respondent

Mimi Singh, for the Appellant

Beverly Sterling and Ian Aitken, for the Respondent

Heard: February 25, 2011 at Toronto

MATLOW, J.:

The disposition

1This appeal is allowed. The decision of the Tribunal is set aside and the respondent’s appeal to the Tribunal is referred back to the Tribunal, differently constituted, for a new hearing. Counsel for both parties have agreed that neither party would seek costs. Accordingly, no order with respect to costs is made.

The background

2This appeal by the Director is from the decision of the Social Benefits Tribunal (“Tribunal”) dated July 29, 2009, by which the Tribunal, on appeal, rescinded the Director’s decision that the respondent was not a “person with a disability” as defined in s. 4 of the Ontario Disability Support Program Act, 1997, S.O 1997, c. 25, (the “Act”). The Tribunal also ordered that she be paid the disability benefits to which she was entitled and ordered that there be a review of the respondent’s eligibility as a person with a disability within three years of its decision. The decision was subsequently confirmed by the Tribunal on an application for reconsideration made by the Director.

3Section 4 of the Act defines “person with a disability” as follows;

4 (1) A person is a person with a disability for the purpose 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.

The right of appeal

4Section 31(1) of the Act provides for the right to appeal to this court on a question of law. The applicable standard of review is that of correctness. This court has no jurisdiction to weigh the evidence. Nor can it substitute its own findings of fact for that of the Tribunal unless it is persuaded that the Tribunal has made a palpable and overriding error.

“person with a disability”

5There are three components to the definition of “a person with a disability” set out in s. 4 (1) of the Act;

• The claimant must have a substantial physical or mental impairment that is continuous and expected to last at least one year (Act s. 4(1)(a)).

• There must be a substantial restriction in the person’s ability to either attend to his or her personal care, function in the community and function in a workplace (Act s. 4(1)(b)), and

• Each of the requirements of the first two questions must be verified by a person with the prescribed qualifications (Act s. 4(1)(c)).

The Tribunal’s findings

6The Tribunal found that the respondent satisfied each of these components. In reaching that conclusion, it made the following findings.

7There were four medical conditions on which the respondent’s claim was based: migraine headaches, depression, abdominal pain and GERD (acid reflux). These conditions resulted in five verified impairments, namely, difficulty with normal living activities when headaches occur, trouble concentrating, difficulty looking after her family, symptoms of nausea and night time pain and sleep disturbances. The respondent’s impairments were continuous or recurrent and expected to last one year or more. Her “physicians” verified the conditions in the Health Status Report that was prepared.

8The Tribunal also found, as it was required to do, that the impairments were substantial. In arriving at this last conclusion it relied on the respondent’s evidence that it found compelling. The Tribunal described that evidence, in part, as follows:

Ms. A. testified that she is married with four young children and lives with her husband and family in a two bedroom apartment. She has only a grade 10 education which she obtained in her homeland. She speaks English but is unable to read or write in English.

She left her homeland due to war. She was witness to many of the atrocities of war and those images stay with her. She did not work in her homeland and came to Canada in 2000 with one child.

9The respondent’s evidence also included evidence about her medical and other problems. It referred to her migraine headaches which began in 2001 and which last three or four hours on a daily or nightly basis. It then referred to her surgery for her gall bladder and stomach pain in 2005, her inability to take medications because of her pregnancies, nausea and vomiting, decreased vision, difficulty in overseeing her four children, inability to sleep more than three or four hours at a time and depression.

10In spite of these difficulties, the respondent testified that she is able to manage cooking and that her husband assists with grocery shopping, laundry and cleaning. She drives little, mainly to get to medical appointments. She walks very little. Her husband also takes the children out to allow her time to gain some additional sleep. She has no extended family or friends. Television bothers her.

The principal issue in this appeal

11The principal issue in this appeal is whether the Tribunal erred in finding that the respondent satisfied that part of the definition of “person with a disability” set out in s. 4 (1) (b) of the Act. The Tribunal held that she did for the following reasons;

For the following reasons the Tribunal is persuaded that the Appellant’s ability to function in a workplace is substantially restricted by the Appellant’s substantial impairments. In the Health Status Report, the Appellant’s family physician has identified one Class 3 limitation (moderate symptoms or safety concerns) on the Intellectual and Emotional Wellness Scale, in the area of learning. In the narrative portion of the document he states: “Her husband lost his job as a convenience store worker. He is unable to find suitable employment because of his own problems. P. has become somewhat depressed. It is unrealistic for her to try to return to work when she is pregnant. She will need to be a ‘say [sic] at home’ mother for next few years until her children are in school.” Also, “Patient is pregnant with her 4th child. She is therefore unable to take the remedial medication that would be used to treat heartburn, dyspepsia, migraines and depression.” Further under resources he notes that the Appellant has, “limited resources to access mental health therapists in our area. No third party coverage.”

The Appellant is a bright young woman, who has managed to acquire rather proficient English language skills from watching television. She lives with her husband who is unemployed and has health issues of his own, and her four young children, in a two-bedroom apartment with no beds and little in the way of furnishings or items, such as strollers, for her children. In addition to a lack of financial resources, she lacks an extended family for support, and no friends who share her culture. She misses her family who remain overseas. Additionally, the atrocities of war that she experienced in her homeland remain with her, on a daily basis.

Her physician has confirmed her condition and her impairments arising from them in the, ]sic] Health Status Report. He has been forthright in saying that until her children are older, realistically she is unable to work or look to retraining. Her headaches last 3 to 4 hours, on a daily basis, and since her gall bladder surgery, she has continued to have abdominal pain. Her multiple pregnancies have precluded, at the time of the decision, adequate testing and medications to handle her migraines (which may be stress related) and abdominal pain. Handling these conditions is difficult, as a result of her having multiple young children.

In the opinion of the Member, this young mother is overwhelmed with what is on her plate, over and above the impairments she experiences from conditions. Together they make functioning on a day-to-day basis difficult (emphasis added). Lacking a significant education, a lack of workplace skills and experience, in addition to an inability to read and write, realistically preclude any chance for employment.

The Tribunal’s reversible error

12In making this ultimate finding relating to the causal connection between the impact of the respondent’s impairments and her ability to function in the workplace, the Tribunal fell into reversible error. In particular, as its reasons show, it found that the substantial restriction of the respondent’s ability to function in the workplace was the result of a variety of factors, many of which are social and external factors relating to both herself, her husband and their children and not, as the Act requires, only to the impairments set out in paragraph [7] above.

13Although it is difficult not to sympathize with the plight of the respondent, her struggles and challenges resulting from other causes do not entitle her to the benefits that she claims and the Tribunal has stepped beyond what the Act allows.

The adequacy of the Tribunal’s reasons

14There is one further issue that must be addressed.

15It would have been very helpful to the disposition of this appeal if the Tribunal had given more extensive reasons better explaining its analysis and conclusions, particularly in light of the fact that the respondent had not actually tried to function in any workplace. For example, it would have been of great value to us to learn something about the workplace that the Tribunal considered applicable to its analysis, about what would be required in that workplace and how the respondent’s impairments would substantially restrict her ability to function there.

16Moreover, if the Tribunal had found, as it might have, that the respondent had, or would have had, no or very limited ability to function in the workplace even in the absence of any of her impairments, it might well have decided that her impairments had no or little effect on her ability to function in the workplace.

17As it is, the reasons given by the Tribunal do not address these issues adequately and, therefore, do not meet the requirement of completeness required by the Act, the regulations made under the Act or the judgment of the Court of Appeal in Gray v. Ontario (Disability Support Program, Director, 2002 7805 (ON CA), 59 O.R. (3d) 364.

Verifications

18Having come to these conclusions it is not necessary for us to consider whether the verifications required by s. 4 (1) had been obtained by the respondent. Without the identification of the relevant impairments of the respondent that can properly support her claim, their likely duration and the resulting restriction in the respondent’s ability to function in the workplace as required by the Act, it would be premature to attempt to do so.

Matlow. J.

Cunningham, A.C.J.S.C.

Lederer, J.