CITATION: Graham v. Director ODSP 2015 ONSC 5791
Divisional Court File No. 769
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N
JESSICA GRAHAM
Appellant
- and –
DIRECTOR, ONTARIO DISABILITY SUPPORT/ COMMUNITY AND SOCIAL SERVICES
Respondent
PRESIDING JUSTICES
THE HONOURABLE JUSTICE REILLY
THE HONOURABLE JUSTICE NORDHEIMER
THE HONOURABLE JUSTICE CORBETT
AT THE DURHAM REGION COURTHOUSE,
150 BOND ST. E., OSHAWA, ONTARIO,
ON SEPTEMBER 16, 2015
REASONS FOR JUDGMENT
APPEARANCES:
M. Phan, L. Loader Counsel for the Appellant
M. Singh Counsel for the Respondent
WEDNESDAY SEPTEMBER 16, 2015:
UPON RESUMING:
REASONS FOR JUDGMENT
NORDHEIMER, J – Orally:
Jessica Graham appeals from a decision of the Social Benefits Tribunal upholding a decision of the Director of the Ontario Disability Support Program that the appellant was not a “Person with a disability” under the Ontario Disability Support Program Act, S.O. 1997, c.25, Sched.B. An appeal lies to the Divisional Court from an order of the tribunal, but that right of appeal is restricted to a question of law. The first issue to be addressed then is whether a question of law is raised by this appeal. If it is, then it is agreed that the standard of review on that decision is one of correctness.
The appellant was 31 years old at the date of the hearing. The evidence shows that she suffers from a social phobia, generalized anxiety disorder and depressive disorder from which she has suffered since she was 13.
On July 24, 2013 the appellant applied for income support under the ODSPA. To receive income support an applicant must be a “Person with a disability” under s.4(1) of the ODSPA.
On November 25, 2013 the Director concluded that the appellant was not a person with a disability. The appellant requested an internal review of the Director’s decision. On December 20, 2013 that review confirmed the Director’s decision.
The appellant filed an appeal to the tribunal on December 13, 2013.
On August 29, 2014 she submitted additional evidence dated July 27, 2014 from Dr. Kraus, her psychiatrist.
The tribunal held a hearing on October 1, 2014 at which the appellant gave evidence. The tribunal subsequently issued written reasons dismissing the appeal. The tribunal found that,
a) The appellant’s impairments taken individually or cumulatively did not meet the legislative threshold of substantial.
And,
b) The appellant did not meet the test for a person with a disability as set out in s.4(1) of the ODSPA.
The appellant submits the tribunal erred in law by disregarding, misapprehending or failing to appreciate relevant evidence. I cannot see any basis for that submission. The tribunal carefully considered all of the evidence as is set out in its reasons. While the tribunal did not view that evidence in the same fashion as does the appellant, that does not amount to a failure to take the evidence into account. The appellant also submits the tribunal erred in law by finding that the appellant’s impairments were not “substantial” within the meaning of s.4(1) of the ODSPA.
The determination of whether the appellant’s impairments were substantial is inherently an exercise in the weighing of the evidence. It does not raise a question of law. In any event, it is not the job of an Appellate Court to re-weigh the evidence. As the Court of Appeal said in Oliviera v. Ontario (Director, Disability Support Program), [2008]O.J. No. 622 paragraph 33,
“On an appeal on a pure question of law, the task of the Court is not to second guess the weight accorded by the tribunal to various pieces of evidence.”
The tribunal gave cogent reasons for reaching its conclusions, that the appellant’s impairments were not substantial within the meaning of s.4(1). It approached the issues that were before it in the fashion directed by the Court of Appeal’s decision in Crane v Ontario (Director, Disability Support Program), (2006), 2006 38348 (ON CA), 83 O.R. (3d) 321. The tribunal referred to the fact that many of the impairments were characterized as “moderate” or “mild” as opposed to “severe”. It also noted that some of the activities in which the appellant engaged suggested that any impairment resulting from her illness did not substantially interfere with her daily life.
In my view, the appellant is essentially asking us to re-evaluate the evidence and come to a different conclusion, one that favours her position. That is not the role of this Court on an appeal, as I have already pointed out.
The appeal is dismissed.
MATTER ADJOURNED
Form 2
Certificate of Transcript
Evidence Act, Subsection 5 (2)
I, Karen Hamilton, certify that this document is a true and accurate transcript of the recording of Graham v. Director, Ontario Disability Support Program in the Divisional Court of Justice, held at Oshawa, Ontario on September 16, 2015, taken from the Recording No.(s) 2812-208-20150916-093208-10-REILLYR, which has been certified in Form 1.
September 16, 2015
Date Karen Hamilton
TRANSCRIPT ORDERED: September 16, 2015
TRANSCRIPT COMPLETED: September 16, 2015
ORDERING PARTY NOTIFIED: September 17, 2015
Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Karen Turnbull, in BLUE INK and, accordingly, are in direct violation of Ontario Regulation 587/91, Courts of Justice Act, January 1, 1990.