CITATION: Sparks v. Director of the Ontario Disability Support Program, 2023 ONSC 5570

DIVISIONAL COURT FILE NO.: DC-22-2720

DATE: 20231004

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McCarthy, Sheard and Schabas, JJ.

BETWEEN:

ADAM SPARKS

Appellant

– and –

DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES

Respondent

Sarah Forsyth and William Florence, for the Appellant

Mimi Singh, for the Respondent

HEARD at Ottawa, virtually,

September 13, 2023

REASONS FOR JUDGMENT

SCHABAS J.

Overview

1This is an appeal by Adam Sparks (“Sparks” or “the appellant”) of a Social Benefits Tribunal ("SBT") decision, confirmed on reconsideration, holding that Sparks is not a “person with a disability” under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B ("ODSPA") and is therefore not entitled to income support.

2The appellant submits that the SBT made several errors of law, requiring that the decision be set aside. These include that the SBT ignored or misapprehended evidence relating to Sparks’ impairments, that it engaged in discriminatory reasoning, that it based its decision on contradictory reasoning, and that it failed to apply the correct test of considering the “whole person” in assessing the substantiality of the appellant’s impairment.

3For the reasons set out below, the appeal is allowed. In short, in my view the SBT ignored and misapprehended relevant evidence. This was an error of law that caused the SBT to dismiss evidence supporting Sparks’ appeal without adequately engaging with it or weighing it. The SBT also engaged in discriminatory reasoning and made inconsistent findings on material issues. These errors require that the matter be returned to the SBT for a new hearing before a different panel of the tribunal.

Background

4The appellant is 38 years old. He is married and has four children, aged 5, 12, 14, and 19. He was diagnosed with ADHD at a young age and placed in special classes for reading and writing. He found school overwhelming and stressful. When he was about 16 years old, Sparks began experiencing anxiety and social anxiety disorder. He also began smoking marijuana daily. In grade 10, at age 17, he quit school. He has never upgraded his education because of his anxiety. In 2004, when he was about 20 years old, Sparks worked briefly in a kitchen. But he had such difficulty focusing that he could not remember the schedule from one day to the next, rendering him unreliable, and he has not worked since.

5Sparks and his wife rely on her income support from the ODSP. He has difficulty focusing on a single task long enough to look for a job. He experiences worthless feelings, “mental breakdowns”, and daily panic attacks, which cause him to sweat and self-isolate. Afraid of having a panic attack, Sparks rarely leaves his home. When he does, he avoids crowds and social gatherings like restaurant dinners or birthday parties, and he avoids going out for long.

Application for ODSP

6In January 2020, Sparks applied for income support under the ODSPA. As required, he submitted medical and other evidence to support his claim that he was a “person with a disability.” This evidence included a Health Status Report (“HSR”) prepared by his physician, Dr. Alenia Kysela. She verified that the appellant experienced five conditions: Generalized Anxiety Disorder (GAD); Social Anxiety Disorder; Substance Use Disorder; Attention Deficit Hyperactivity Disorder; and Seizure Disorder. Dr. Kysela also verified that the appellant's conditions were continuous and expected to last one year or more.

7In the HSR, Dr. Kysela described the appellant’s impairments as being related to each of his medical conditions other than the seizure disorder. She noted that Sparks feels anger and frustration, has difficulty sleeping, gets “worked up” over everything, has violent outbursts, and that his mood is unstable and “up and down all the time.” Dr. Kysela wrote that Sparks worries a lot, cannot multi-task, has difficulty remaining or doing activities in public places and has a “hard time with basic tasks.”

8She also addressed Sparks' impairments in the Intellectual and Emotional Wellness Scale, (“IEWS”), where she gave him a “class 4” (“unsafe, severe symptoms or signs”) rating for Learning (language processing, mathematics, attention difficulties). Dr. Kysela also gave seven “class 3” (“safety concerns, moderate symptoms or signs”) ratings for issues such as consciousness, emotion, impulse control, intellectual function, judgment, and motivation. Under the “Activities of Daily Living Index” in the HSR, Dr. Kysela wrote:

This gentleman is impaired by his mental health diseases. His wife does all the finances and executive decision making. He cannot do grocery shopping or activities that require going out in public. He has limited attention span. His emotional stability is difficult for him to manage. He cannot write well or express himself verbally very well. He struggles with interactions with others. He cannot complete tasks easily. He is disabled from his complex mental health disorders. He would benefit form the support of ODSP.

9Also attached to the HSR was a letter from a psychiatrist, Dr. Renee Fitzpatrick, corroborating Dr. Kysela’s report that the appellant has “generalized anxiety disorder, social anxiety disorder, ADHD, and substance use disorder (marijuana).” Dr. Fitzpatrick also found that the appellant’s “insight and judgment were deemed to be limited” and determined that his anxiety significantly impacted his mood.

10Dr. Kysela’s report relayed what was also contained in the appellant’s Self Report Form submitted as part of his application, but which was completed by a family member because of the appellant’s difficulty focusing on tasks. The Self Report Form stated, among other things, that “[i]t is hard to focus long enough to look for a job and fearful of having a seizure or getting angry or upset in a social setting.” The Self Report Form also stated that the appellant “has difficulty focusing on a single task which usually causes him to get angry, [he] will spend weeks at a time isolated from his family (extended)”, and that he “finds it difficult to get through the day without having a mood change.”

11Dr. Fitzpatrick noted, in addition, that the appellant described himself as being angry on a daily basis without provocation, which sometimes results in him punching holes in the wall in order to vent. She noted that he has difficulty focusing long enough to watch a TV show and remember the plot, has difficulty remaining organized, is forgetful, and has difficulty concentrating and paying attention. Dr. Fitzpatrick also explained that Sparks rarely leaves the home as he is concerned that people are staring at him when he is in crowds, and for this reason he has never gone to a restaurant with his family. She also found that Sparks’ reliance on marijuana detrimentally impacts his capacity to function.

12In February 2020, the ODSP Director denied Sparks' application, finding that he was not a “person with a disability” under the ODSPA. This decision was upheld following an internal review. Sparks appealed to the SBT pursuant to s. 23(1) of the ODSPA.

13Prior to the hearing, Sparks submitted additional medical documentation for the Disability Adjudication Unit to reconsider the decision. This included a letter from Dr. Kysela with an attached “Mental Health Restrictions Chart” (“MHRC”) created by Kingston Community Legal Clinic but signed by Dr. Kysela, and a Patient Medical History chart. Dr. Kysela reiterated that the appellant “suffers from substance use disorder, social anxiety, and generalized anxiety.” She stated that “[t]he cumulative impact of his conditions is that he lacks motivation and is easily overwhelmed, and cannot complete tasks due to problems concentrating.” She said that he “continues to have issues with mood stability and lability, despite being compliant with medications.” In the MHRC, Dr. Kysela noted “severe or complete limitations” for the appellant’s ability to deal appropriately with others in social or workplace settings and she wrote that the appellant “can perform tasks in community with help from his wife only.”

14The Director confirmed the decision, and the matter proceeded to a hearing before the SBT on February 16, 2022. That hearing was held by videoconference, although Sparks was only able to join by telephone as he cannot use a computer. The appellant testified at length about his disabilities and how they affect his daily life, confirming the evidence that had been submitted to the Director. The appellant gave examples of his condition noting, for instance, that when watching a television show, by the time it reaches a commercial break he cannot remember what he was watching. He testified that he is never left alone with his children because he finds it overwhelming, cannot focus, and is worried that he will forget something or one of his children. The appellant explained that his wife does everything around the house because he is always exhausted.

15When questioned regarding his symptoms of anxiety, he stated:

Just like mental breakdowns and stuff. I just can't focus and half the time I'm up and down. I just exclude myself to the room. Like worthless feelings. ... Yeah, just like anxiety and depression. ... I can't even be into like an open area. Like I don't do birthdays or anything like that. It's just I feel like a panic attack constant being around a crowd of people. ... I'll just start sweating and I've got to exclude myself from everything, go into my room and that's it. ... That happened like every day. Hard to deal with everyday life. Well, I have my spouse to deal with 90% of it.

16The SBT dismissed the appellant’s appeal with Reasons on March 18, 2022, finding that the appellant had not met the onus of “demonstrating that it is more likely than not that he experienced substantial impairment when these impairments are assessed either individually or cumulatively” (para. 12). The SBT decision was upheld on reconsideration on May 30, 2022.

Jurisdiction, standard of review and the statutory context

17Section 31(1) of the ODSPA provides a right of appeal from the SBT’s decision to this court on a question of law.

18It is well-accepted that the standard of review on questions of law is correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8 (“Housen”); Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, 2019 SCC 65, at para. 37. A tribunal errs in law when it interprets law incorrectly, or applies the wrong legal test or principle, or fails to apply the correct legal principle, or does so incorrectly. A tribunal also errs in law when it improperly approaches the evidence, such as by misapprehending evidence, ignoring relevant evidence, or relying on irrelevant evidence or irrelevant factors in reaching its decision: Filipska et al v. Ministry of Community and Social Services, et al., 2017 ONSC 5462, O.J. No. 4814, at para. 7. A tribunal does not err in law, however, when it has considered the relevant evidence but the court disagrees with the weight it gave to the evidence in reaching its decision; that would be a question of fact.

19In Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364 (C.A.), at paras. 9 and 10 (“Gray”), McMurtry C.J.O. described the ODSPA as remedial legislation that “should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities.” Accordingly, as “social welfare legislation serving some of the province’s most impoverished and vulnerable residents” (Surdivall v. Ontario (Disability Support Program), 2014 ONCA 240 at para. 35), “any ambiguity in the interpretation of the ODSPA should be resolved in the claimant’s favour.”

20Section 4(1) of the ODSPA, the section in issue in this case, was also in issue in Gray. It states:

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.

21McMurtry C.J.O. noted that “the current definition of a disabled person is much more generous than the previous version.” He pointed out that “the qualifiers ‘major’ and ‘severe’ have been replaced by the more moderate ‘substantial’”. After comparing the ODSPA to federal disability legislation, the Chief Justice stated, at paras. 15-16 of Gray:

Compared with its predecessor and with similar federal legislation, it would appear that the current definition of "person with a disability" in the ODSPA was intended to encompass a broader segment of society and to provide assistance to persons with significant but not severe long-term functional barriers.

With respect to the interpretation of the word "substantial" in s. 4(1)(a) of the ODSPA, I am of the view that the word should be given a flexible meaning related to the varying circumstances of each individual case in a manner consistent with the purposes of the Act.

22Consistent with this approach, determining whether an individual is “a person with a disability” requires consideration of the “whole person” “in the context of her own situation”, including the person's “ability to function in the domains of personal care, community and workplace.” This individual assessment takes into account “the varying circumstances of each individual case in a manner consistent with the purposes of the Act”: Gray, at para. 8; Ontario (Disability Support Program) v. Crane (2006), 2006 38348 (ON CA), 83 O.R. 321 (C.A.), at paras. 24-25.

Issues

23The appellant submits that the SBT erred in law in four ways:

(i) by disregarding, misapprehending, and failing to appreciate relevant evidence relating to the appellant’s impairments;

(ii) by relying on discriminatory reasoning that blamed Mr. Sparks for his disability;

(iii) by basing its decision on contradictory determinations; and

(iv) by applying the wrong legal test for “person with a disability” by failing to consider Sparks as a “whole person” “in the context of [his] own situation.”

Analysis

Issue 1: The SBT ignored or misapprehended relevant evidence of the appellant’s impairments

24At paragraph 20 of its decision, the SBT observed that the IEWS was “very supportive of substantial impairment given the ratings in a range of categories.” The SBT also referred to ratings in the HSR supportive of substantial impairment. However, it then went on to disregard that evidence on the basis that the “ratings are at odds with the level of impairment … as described by the Appellant.” The SBT stated that there was “significant conflict between the IEWS and the Appellant’s testimony relating to his mental health impairments” and it therefore found that “the ratings are less reliable.”

25The problem with this finding by the SBT is that it is unsupported by its reasons and ignores or misapprehends the evidence the appellant provided to the SBT.

26In its reasons, the SBT asserted in paragraph 20 that “there was no indication from testimony or in the Appellant's reported level of functioning to justify these high ratings” found in the HSR. Later in the same paragraph, after referring to the ratings from Dr. Kysela contained in the MHRC, the SBT again asserted that “there was no indication from testimony or in the Appellant's reported level of functioning to justify these high ratings.”

27Stating that there was “no indication” in the appellant’s testimony to support Dr. Kysela’s ratings is inconsistent with Sparks’ testimony regarding his anxiety disorders and ADHD. Some of the appellant’s evidence consistent with Dr. Kysela’s reports regarding his functioning and his disorders has already been referred to above. But there is much more. For example:

(a) When asked why he had been unable to proceed past grade ten in school, the appellant stated: “I just can't do it. I can't focus. ... Like it's just anxiety and everything else. I can't focus on one thing.”

(b) In explaining why he was put in special classes in school, Sparks said: “Reading and writing and I couldn't be in big classes, like I'd be always in fights or ... they put me off my in own little cubicle and I had teen student buddies come in and help me and I was just -- type I was.”

(c) In response to a question about why he had only been employed for one month when he last attempted work in 2004, Sparks stated: “It's just trying to keep the schedule and go from one day to the next. I couldn't focus on anything. Can't remember nothing or was hard to be reliable.”

(d) As to why he hasn’t worked since: “I can't be in a closed area or I can't be reliable to be somewhere where I'm supposed to be every day."

(e) In response to additional questioning about why he is unable to work there was the following exchange:

Adam Sparks: Just the point of being around anybody and anything was like that.

Leah Giansante [ODPSP Representative]: Okay, so what is it about being around people?

Adam Sparks: I just feel closed in. I don't know how to explain it.

Leah Giansante: Okay, so how so? So, what would be the difference from being in your home to being out in public?

Adam Sparks: I don't have to deal with anybody. I don't have to deal with anybody.

(f) When asked about his ADHD, the appellant stated: “Oh, like I've been in the special classes ever since public school.” He described some of his ADHD symptoms stating: "Oh, like I said all over the place. Mad, sad, there'd be sweating, got to go exclude myself from everybody. It was like that every day."

(g) On whether he is able to care for his children, Sparks responded: “Oh, I'm never left alone. ... Well, it's just my mood's from one into the next. It's overwhelming trying to -- four of them all different directions. I can't focus. I can't do it. I always forget something, or heaven forbid one of the kids. ... Yeah, forget, forget one of them outside or ... “

(h) As to why he does not have his driver's license: "I wouldn't be able to focus with all that on the road."

(i) In response to questioning about how long he could focus on a task: “Roughly a couple minutes, if that. … [A TV show] goes in one ear out the other. By the time it goes to commercial, I can't even remember what I was watching until it comes back on.”

(j) On his ability to make decisions: “I don't. Brandy [his wife] does all that.”

(k) When asked about his symptoms of anxiety he stated:

Just like mental breakdowns and stuff. I just can't focus and half the time I'm up and down. I just exclude myself to the room. Like worthless feelings. ... Yeah, just like anxiety and depression. ... I can't even be into like an open area. Like I don't do birthdays or anything like that. It's just I feel like a panic attack constant being around a crowd of people. ... I'll just start sweating and I've got to exclude myself from everything, go into my room and that's it. ... That happened like every day. Hard to deal with everyday life. Well, I have my spouse to deal with 90% of it.

(l) The following exchange took place when asked how his medical conditions affected his relationship with family and friends:

Adam Sparks: It's the same way. A lot of people get mad at me because I'm not at birthdays or whatever else. And I don't go to any social gatherings.

Kimberly Hurt [Sparks’ Representative]: So, you don't go to social gatherings with your family or [your wife’s] family?

Adam Sparks: No, she goes and takes the kids.

Kimberly Hurt: And what about friendships back in February 2020?

Adam Sparks: I didn't really have many friends back then. It was more Percocet and that was about it.

Kimberly Hurt: And can you tell me about your ability to get along with others? Again, we're going back to the winter of 2020?

Adam Sparks: I don't. I have trouble socializing.

(m) In response to questioning regarding his ability to control his temper: “I don't really, I just exclude myself before I get mad. Just [inaudible] with myself. ... In my room.” He referred to being “in anger management while I was younger through school.”

(n) On his ability to maintain a schedule:

Adam Sparks: I can't. ... I'm always forgetting stuff, or some days I just wake up I could care less. I just give up on everything and ...

Kimberly Hurt: Okay. And you said you would forget. What kind of things would you forget?

Adam Sparks: Just daily schedule.

(o) In response to questioning regarding as to why he had not undergone cognitive behavioural therapy, Sparks stated: “... to get me to stick to something is ... half the time I like, oh I can care less. ... Just the way I am. I don't know, I can't explain it.” He also said that it is “Just hard for me to even show up in a room and one-on-one with somebody else. I can't focus. I can't do anything.”

(p) In response to questioning about how he gets started each day:

Adam Sparks: I just wake, wake up and sometimes I'm exhausted and it takes me a little longer to get going. Brandy takes care of all the kids and all that.

Kimberly Hurt: And what about your, your helping with meals and preparing your meals?

Adam Sparks: Brandy does that. ... Because I'm always exhausted or I'm mad or whatever else.

Kimberly Hurt: And what about the household chores? So, cleaning the house, making the bed, doing the laundry, that sort of thing?

Adam Sparks: I might make the beds but that's about it.

(q) In response to questioning from the ODSP Representative on his hobbies: “... most of the time I get out, I could, you know I could care less. I don't do my hobbies and stuff like how I used to. ... I just feel exhausted. Don't have the energy for it. And lose my interest and give up on everything. I don't have no will to do anything. Follow anything through. I'm not sure if I did that or not.”

28Accordingly, to say there was “no indication” from the appellant’s testimony to “justify the high ratings” or to say, as the SBT did in para. 22 of its decision, that the “ratings are at odds with the Appellant’s own testimony” is, quoting the appellant’s factum, “completely divorced from the testimony that was actually before it.”

29The SBT did, very briefly, refer the appellant’s evidence of his anxiety at paras. 15 and 17 of the decision. However, it cannot be said, as the respondent submits, that the SBT was weighing competing evidence, as there was no competing evidence. In my view, these conclusions can only have been reached by the SBT because it either ignored the appellant’s evidence, failed to appreciate it, or fundamentally misapprehended it. As discussed above, and as this court has stated in other decisions involving appeals from the SBT, the tribunal errs in law when it disregards, misapprehends, or fails to appreciate relevant evidence: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747, O.J. No. 2300, at para. 12; Jennings v. Minister of Social Services of Ontario, 2015 ONSC 6689, O.J. No. 5603, at para. 41; Housen, at para. 46; Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337, at para. 28, appeal dismissed, 2022 ONCA 446, O.J. No. 2602, leave to appeal to SCC granted, 2023 17178 (SCC).

30The SBT’s finding on this issue went to the heart of the decision, as it then concluded that there was a “significant conflict between the IEWS and the Appellant’s testimony.” This so-called conflict was never explained, yet it led to the finding that the “ratings are less reliable” and therefore the appellant had not discharged his onus “of demonstrating that it is more likely than not that he experienced substantial impairment.” If there was a conflict, the SBT ought to have explained it, and explained why it preferred the appellant’s testimony over the medical reports. That would have been weighing the evidence. But instead, the tribunal said there was “no indication” from his testimony to support the ratings and did not weigh the evidence at all.

31There are other places in the decision where the SBT ignored or misapprehended the evidence. For example, in para. 23 it referred to the “contradictory” medical evidence without explanation and this reference appears to have no support in the record.

32Another example is at para. 22 of the decision, where the SBT referred to the fact that the appellant would attend a pharmacy each day to get his suboxone medication (which helped him deal with his dependence on Percocet). The SBT stated that “[d]espite having to be in a public place, the Appellant did not specifically refer to any impact of being in a pharmacy on his mental health impairments.” This is not correct.

33The SBT appears to be referring to questioning at the end of Sparks’ testimony by a member of the tribunal about the fact that he now goes to a pharmacy across the street from where he lives to obtain medication. The tribunal member never asked Sparks how that impacted his mental health, although Sparks did say that’s “not socializing. That’s only getting my pill and straight home”, which the SBT did not mention in it reasons. Further, the SBT ignored Sparks’ response, when asked earlier by ODSP counsel about trips to a different pharmacy when his wife drove him, he said that “just trying to get in that place and get out is overwhelming for me. It was too much going on in one little place.”

34In light of all the specific evidence the appellant gave about his inability to go out or function in society due to his anxiety, which was not mentioned in the decision, and that he did “specifically refer” to the “impact of being in a pharmacy on his mental health impairments”, it is very troubling that the tribunal seized on one point – that he goes to a pharmacy to get medication - but then both misstated the evidence and failed to provide the context of its questioning in order to assert a conclusion that was contrary to the evidence.

Issue 2: The SBT relied on discriminatory reasoning that blamed the appellant for his disability

35The SBT’s discussion of the appellant’s substance use disorder is also problematic. In para. 19 of the decision, after referring to Sparks’ continued use of marijuana despite Dr. Fitzpatrick’s recommendation that he reduce it, the SBT said that it was “not satisfied that the impairments reached the level of substantial … because the Appellant was not in full compliance with treatment prescribed.” And, at para. 23, the SBT referred to the appellant’s “treatment and extensive use of cannabis, and the contradictory medical evidence” as a basis to conclude he was not substantially impaired.

36I have already noted that the SBT never explained where the medical evidence was contradictory. But at least of equal concern is that the SBT blamed the appellant for his substance use disorder, rather than recognizing it, as the physicians did, as a disorder. The appellant also explained that using marijuana eases his anxiety disorder. His use of marijuana isn’t simply a recreational choice but is directly related to his other disabilities.

37The SBT appears to have reasoned that because the appellant, with the assistance of medication, was able to wean himself from using Percocet, he should be expected to also do this for marijuana despite his diagnosis, and that his failure to do so meant that his impairments were not substantial. This reasoning is unsupported and discriminatory.

38It has long been the law, first established by the SBT itself, that denying benefits to persons who are disabled due to addictions to drugs or alcohol is discriminatory and contrary to the Human Rights Code, R.S.O. 1990, c. H.19. In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, at paras. 121 and 125, the Court of Appeal confirmed that s. 5(2) of the ODSPA, which at the time stated that a person was “not eligible for income support if the person is dependent on or addicted to alcohol, a drug or some other chemically active substance”, imposed restrictions “because of assumed or unjustly attributed characteristics and therefore denies the essential human worth of the [respondents] and those like them". In effect, the section created a disadvantage by stereotyping. It has since been repealed: S.O. 2021, c. 25, Sched. 21, s. 25(1).

39In many other cases, the SBT has recognized that it is not appropriate to infer a lack of substantiality from a lack of treatment caused by a person’s impairments. Mental health conditions, such as anxiety and depression, or lack of insight into an addiction, can be barriers to persons seeking or following treatment recommendations. 1210-13522 (Re), 2013 ONSBT 4582 at paras. 27-28; 1903-01657 (Re), 2021 ONSBT 1405 at para. 33; 2001-00878 (Re), 2021 ONSBT 1783 at paras. 25-28; 1904-02946 (Re), 2021 ONSBT 2123 at paras. 18-20. Indeed, some SBT decisions have recognized that where an absence of treatment, or failure to follow treatment plans, is attributable to other impairments, this can support a finding of substantial impairment: 1404-04609 (Re), 2015 ONSBT 4919 at para. 39; 1312-13255 (Re), 2015 ONSBT 704 at para. 15; 1410-11883 (Re), 2015 ONSBT 4350 at para. 27.

40Here, the SBT appears to have inferred that Sparks could stop using marijuana but chose not to do so, and to have inferred that because of that choice his impairments were not substantial. This is stereotypical reasoning, inconsistent with SBT jurisprudence, and an error in law.

Issue 3: The SBT based its decision on contradictory determinations

41This issue also arises from the manner in which the SBT dealt with the appellant’s substance use disorder. At para. 19 of the SBT’s decision, the tribunal found that Sparks’ impairments were not “substantial…because the Appellant was not in full compliance with treatment prescribed”, i.e., to cease using marijuana as his physician had recommended. But at para. 22 of the decision, the SBT held that he was not substantially impaired because he was able to overcome an addiction to Percocet with the use of suboxone, leading to the conclusion, at para. 23, that Sparks’ “extensive use of cannabis” weighed against a finding of substantial impairment. In other words, according to the SBT, Sparks’ impairments were not substantial because he was not compliant with treatment for marijuana, and because he was compliant with treatment for Percocet. Such inconsistent findings are an error of law: R. v. R. (D.), 1996 207 (SCC), [1996] 2 S.C.R. 291, at para. 50; Trajkovich v. Ontario (Minister of Natural Resources), 2009 ONCA 898, O.J. No. 5466, at para. 18.

Issue 4: The SBT applied the wrong legal test for “person with a disability” by failing to consider Sparks as a “whole person” “in the context of [his] own situation.”

42Given my findings above, it is not necessary to deal with this issue. However, the reasons of the SBT, both in what it said and what it failed to say about the appellant, suggest that it did not apply the “whole person” test for “a person with a disability”, which is required if the ODSPA is to be interpreted “broadly and liberally and in accordance with its purpose of providing support to persons with disabilities”: Gray at para. 9. Two examples of this have already been discussed. First, the SBT did not address Sparks’ continuing dependence on marijuana “in the context of his own situation”, as his substance use disorder is related to his anxiety disorder, making it difficult for him to comply with the treatment recommended by his physician. The second example is the SBT’s failure to engage with the appellant’s detailed evidence about how his anxiety disorder disables him, citing only, and unfairly, the fact that he can go into a pharmacy to pick up a pill.

Conclusion

43In light of the errors of law by the SBT, the appeal is allowed. Although the appellant requests that this court direct that Sparks is eligible for income support, this is a determination better made by a panel of the SBT upon appropriate consideration of the evidence and the law. Accordingly, the matter shall be referred back to the SBT for a new hearing before a differently constituted panel of the tribunal.

44As agreed between the parties, there is no order as to costs.

Paul B. Schabas J.

I agree _______________________________

J.L. McCarthy J.

I agree _______________________________

L. Sheard J.