Citation and Court Information
CITATION: Lumsden v. Director of the Ontario Disability Support Program of the Ministry of Community and Social Services, 2015 ONSC 3201
DIVISIONAL COURT FILE NO.: 42/14 DATE: 20150519
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, MOLLOY AND LEDERER JJ.
BETWEEN:
LAURA LUMSDEN Appellant
– and –
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES Respondent
Marcia Cannon, for the Appellant Cheryl Ellison, for the Respondent
HEARD at Toronto: May 19, 2015
Oral Reasons for Judgment
MOLLOY J. (ORALLY)
[1] Laura Lumsden appeals to the Divisional Court from the decision of the Social Benefits Tribunal, presiding Member Frank Miclash (“the Tribunal”) dated September 18, 2013. Ms. Lumsden had previously applied for benefits under the Ontario Disability Support Program (“ODSP”) on the basis that she was a person with a disability, as defined in s. 4 of the ODSP Act. Her application was dismissed by the Disability Adjudication Unit and upon her request for an internal review, that decision was upheld. Ms. Lumsden appealed to the Tribunal but her appeal was dismissed. It is that decision of the Tribunal which is now the subject of the appeal before this Court, along with the Tribunal’s dismissal of her reconsideration request.
[2] An appeal lies to the Divisional Court from decisions of the Tribunal but only on a question of law: ODSP Act, subsection 31(1) and (5).
[3] The parties agree that the applicable standard of review is correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Wedekind v. Director of Income Maintenance Branch, (1994), 21 O.R. (3d) 289 (Ont. C.A.); Fournier v. Ontario (Ministry of Community & Social Services), 2013 ONSC 2891.
[4] The appellant raised in her material three grounds of appeal:
(i) that the Tribunal erred in law by ignoring the evidence;
(ii) that the Tribunal erred in law in its interpretation and application of the definition of a “person with a disability” in subsection 4(1) of the ODSP Act; and
(iii) that the Tribunal erred by failing to provide adequate reasons for its decision.
[5] In the oral argument before us, the primary focus of the appellant was on the adequacy of the reasons given by the Tribunal.
[6] We do not find any error by the Tribunal on any of the grounds raised.
[7] The Tribunal did not ignore relevant evidence. Rather, it put more weight on some aspects of the evidence than it did on others. That is fully within the purview of the Tribunal and does not constitute an error of law. There is no requirement for the Tribunal to refer to each and every piece of the evidence: Audet v. Ontario (Director, Disability Support Program), [2003] O.J. No. 4802 (Div. Ct.).
[8] The Tribunal correctly identified the test for “person with a disability” under s. 4(1) of the ODSP Act and applied that test in reaching its decision.
[9] The Tribunal considered whether the appellant has a substantial restriction in her activities of daily living. The Tribunal considered the appellant’s testimony that she has friends with whom she is able to communicate on a regular basis. She is able to use public transport and go into the community to meet her grocery and other shopping needs. She lives on her own and is able to see to her personal needs without assistance.
[10] The Tribunal also considered the psycho-vocational assessment which indicates six areas of possible occupational/employment alternatives for the appellant. The Tribunal stated that it agrees with the appellant that she may not be able to return to the physically demanding positions she held previously, but occupations such as mentioned in the report might be well within her abilities.
[11] Finally, the adequacy of reasons is not a stand alone ground of appeal: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] S.C.C. 62, [2011] 3 S.C.R. 708. The Tribunal’s reasons in this case are more than adequate to satisfy the function they are required to meet. The reasons demonstrate that the Tribunal applied the correct legal test to the evidence before it. With respect to each of the tests to be met, the Tribunal first stated the test, then stated its conclusion, and then stated the reasons for that conclusion. Those reasons are sufficient to enable the appellant to know why she was unsuccessful and to permit full appellate review. The reasons demonstrate the logical path that the Tribunal took in coming to its conclusion. It is not necessary for the Tribunal to describe every landmark along the way: R. v. REM, 2008 SCC 51, [2008] 3 S.C.R. 3; Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board).
[12] Accordingly, this appeal is dismissed.
COSTS
THEN J.
[13] I have endorsed the Appeal Book, “This appeal is dismissed for the oral reasons of Molloy J. on behalf of the Court. The respondent does not seek costs and none are awarded.”
MOLLOY J.
THEN J.
LEDERER J.
Date of Reasons for Judgment: May 19, 2015
Date of Release: May 22, 2015
CITATION: Lumsden v. Director of the Ontario Disability Support Program of the Ministry of Community and Social Services, 2015 ONSC 3201
DIVISIONAL COURT FILE NO.: 42/14 DATE: 20150519
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, MOLLOY AND LEDERER JJ.
BETWEEN:
LAURA LUMSDEN Appellant
– and –
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES Respondent
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: May 19, 2015
Date of Release: May 22, 2015