Burnside v. Ontario (Disability Support Program), 2023 ONSC 6071

CITATION: Burnside v. Ontario (Disability Support Program), 2023 ONSC 6071

DIVISIONAL COURT FILE NO.: DC-23-1352 (Oshawa)

DATE: 2023-10-27

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CORBETT, McGEE, CULLIN, JJ.

BETWEEN:

Evan Burnside Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Children, Community and Social Services Respondent

Aman Dhillon and Stephanie Boomhour, for the Appellant

Michelle Schrieder, for the Respondent

HEARD: September 20, 2023

REASONS FOR DECISION

Cullin, J.

[1] This is an appeal of a decision of the Social Benefits Tribunal (“the SBT”): 2009-06484 (Re), 2022 ONSBT 3548.

[2] The SBT upheld the decision of the Director of the Ontario Disability Support Program (the “Respondent”) which found that the Appellant, Evan Burnside (the “Appellant”), was not eligible for income support benefits because he was not a person with a disability within the meaning of s. 4(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (the “ODSPA”).

[3] The Appellant seeks an order setting aside the decision of the SBT. He seeks a declaration that he is a “person with a disability” and that he is eligible for income support benefits. Alternatively, he asks that the court return the matter to the SBT for a re-hearing by a different tribunal member.

[4] For the reasons that follow, I would allow the appeal and return the matter to the SBT for a re-hearing by a different member.

Application, Appeal Process, and Standard of Review

[5] Applications for Ontario Disability Support Program (“ODSP”) benefits are reviewed and determined by the Respondent. In order to qualify for ODSP benefits, an applicant must establish that they are a “person with a disability” within the meaning of s. 4(1) of the ODSPA, which 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. 1997, c. 25, Sched. B, s. 4 (1).

[6] An applicant who disagrees with the Respondent’s decision is required to apply first for an Internal Review. If they disagree with the Internal Review decision, they may then appeal to the SBT.

[7] Pursuant to s. 23(10) of the ODSPA, the onus is on the applicant to satisfy the SBT that the Respondent’s decision is wrong; the SBT’s analysis is based upon the applicant’s circumstances on the date of the Respondent’s decision. The applicant is permitted, pursuant to Rule 5.11 of the SBT Rules of Procedure, to file new medical evidence for the hearing; to be relevant, the evidence must address the applicant’s medical condition on the date of the decision being appealed.

[8] The ODSPA provides at s. 31(1) that any party to a hearing before the SBT may appeal the resulting decision to the Divisional Court. Appeals are limited to questions of law.

[9] The standard of review in a statutory appeal to the Divisional Court respecting a question of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 17, 37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

[10] The Appellant applied for ODSP benefits on February 21, 2020. That application was denied on April 3, 2020 after the Respondent found that the Appellant did not have a substantial physical or mental impairment and that he was not experiencing substantial restrictions in one or more of his activities of daily living.

[11] An Internal Review was requested on September 17, 2020 and a decision was made on September 23, 2020 to uphold the Respondent’s decision. The Appellant appealed to the SBT on September 28, 2020, and an appeal hearing was conducted on October 18, 2022.

[12] The decision under appeal was rendered by the SBT on October 21, 2022. The Appellant’s request for a reconsideration of that decision was denied by the SBT on December 21, 2022.

Decision Under Review

The Decision

[13] The SBT was satisfied that the Appellant provided evidence of impairments and restrictions that: existed on the date of the Respondent’s decision; were properly verified as continuous or recurrent; and, were expected to last one year or more. It was not satisfied, however, that the impairments were substantial.

[14] Given its finding that the Appellant’s impairments were not substantial, the SBT concluded that there was no need to consider whether they substantially restricted one or more of his activities of daily living.

The Evidentiary Record

[15] The record before the SBT consisted of documentary evidence as well as the Appellant’s oral testimony. The documentary evidence included the evidence before the Respondent in the first instance, as well as additional evidence filed in advance of the SBT hearing. The Respondent filed written submissions and attended the hearing to make oral submissions.

[16] The evidence before the Respondent in the first instance included a Health Status Report and Activities of Daily Living Index completed by the Appellant’s family physician, and a Self-Report Form completed by the Appellant.

[17] The additional evidence included an orthopaedic surgeon’s report and, from the Appellant’s family physician, two Medical Conditions Charts, a Cumulative Patient Profile Report, and a Patient Referral. Diagnostic imaging reports were filed that post-dated the Respondent’s decision.

[18] The SBT found that the Appellant’s impairments were verified by three reports completed by his family physician: a Health Status Report, dated July 8, 2019; a Medical Conditions Chart, dated November 4, 2020; and, a Medical Conditions Chart, dated May 25, 2022. The charts described medical conditions present on the date of the Respondent’s decision.

[19] On the basis of the reports, the SBT found that the Appellant was experiencing following continuous or recurrent impairments or conditions on the date of the decision: depression; anxiety; irritable bowel syndrome (“IBS”); sudden sensorineural hearing loss; diabetes; substance abuse; scoliosis; bilateral carpal tunnel syndrome; and, left shoulder pain. The Appellant did not rely on substance abuse as a disabling condition.

The Appellant’s Testimony

[20] The Appellant was 37 years old at the time of the Respondent’s decision. He was single with no children. He had a Grade 11 education, and a self-reported history of learning difficulties. He was sharing a house with a roommate.

[21] At the time of his application for ODSP, the Appellant had not worked in five years. He left the workforce due to depression. At the time he left the workforce, he had been employed for four years in Information Technology Administration.

[22] During his evidence, the Appellant described that his mental health conditions were his most debilitating conditions. He described his shoulder pain as his second worst condition. He testified that he experienced discomfort, indigestion, upset stomach, and cramps secondary to his IBS. He explained that he experienced a partial hearing loss in his left ear in the summer of 2019, which was continuing at the time of the Respondent’s decision, in addition to constant tinnitus.

[23] It was the Appellant’s evidence that he was weaning from Prozac, an anti-depressant medication, and Anapril, an anti-anxiety medication, in and around the time of the Respondent’s decision. He testified that he was taking medication to treat his IBS symptoms. He also testified that he preferred to treat his pain naturally rather than with prescribed medications.

The SBT’s Analysis

[24] The SBT summarized its analysis of the evidence as follows:

Overall, for the most part, the Appellant denied significant symptomology in relation to his pain conditions, and his testimony on his physical conditions as a whole did not reflect significant symptoms in the Tribunal's view. In relation to his mental health conditions, while the Appellant testified to persistent depression and anxiety, the Tribunal heard very little detail in relation to symptoms of these conditions and how they impacted the Appellant such that the Tribunal was not persuaded that the mental health impairments rose to the level of substantial at the time of the Director's decision. The Tribunal makes this assessment in consideration of the evidence as a whole. When considered in the context of all of the evidence, including the minimal level of treatment, as summarized below, and lack of medical documentation contemporaneous with the Director's decision, the Appellant's testimony did not persuade the Tribunal on a balance of probabilities that his impairments reached the level of substantial on an individual or cumulative basis.

[25] Notably, there was nothing in the SBT’s decision to suggest that it questioned the credibility of the Appellant’s evidence.

[26] In reviewing the Appellant’s treatment, the SBT found that there, “was very little pharmacological treatment prescribed for the Appellant's impairments.” It acknowledged that the Appellant was waiting to receive mental health services but noted that he had not been referred for treatment for his physical symptoms. It observed that the Appellant was not using assistive devices or hearing aids.

[27] The SBT acknowledged that the Appellant’s position was supported by eight “moderate” ratings in an Intellectual and Emotional Wellness Scale (IEWS) prepared by his family physician but found that the ratings were not persuasive in the face of the lack of treatment and medical intervention as well as a lack of relevant medical documentation. It placed more weight on the Activities of Daily Living Index (ADLI), which primarily rated the Appellant’s physical symptoms, or lack thereof.

[28] As a result of its analysis, the SBT found that the Appellant had not satisfied it on a balance of probabilities that the Respondent’s decision was wrong.

The Law

[29] In Gray v. Director of the Ontario Disability Support Program, 2002 7805 (ON CA), at para. 16, the Court of Appeal noted that the interpretation of the word "substantial" in s. 4(1)(a) of the ODSPA “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.”

[30] In Ontario (Disability Support Program) v. Crane, 2006 38348 (ON CA) at para. 25, the Court of Appeal once again considered the application of the test in s. 4(1):

In summary, s. 4(1) of the ODSPA presents three questions -- substantial impairment, substantial restriction in certain activities, and verification…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.

[31] Evidence of medical treatment and investigations is not required for a finding of disability under the ODSPA however, when presented, it is a relevant consideration: Jemiolo v. Ontario Disability Support Program, 2009 9420 (ON SCDC) at paras. 11 and 14.

[32] It is not the role of the court in an appeal to reconsider or re-weigh the evidence, or to reconsider the tribunal’s findings regarding the sufficiency of the evidence: Jemiolo, at para. 17. It is the role of an appeal court, however, to consider whether a tribunal disregarded, misapprehended, or failed to appreciate relevant evidence, as this is an error in law: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747, at para. 12; Jennings v. Minister of Social Services of Ontario, 2015 ONSC 6689, at para. 41.

[33] When determining whether to exercise its statutory authority, it is an error of law for a tribunal to fail to take into account relevant considerations or to take into account irrelevant or improper considerations: Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339, at para. 40.

Analysis

[34] The SBT’s decision discloses that it examined the evidentiary record and that it was alive to the test that it was required to apply in its review of the Respondent’s decision.

[35] In reviewing the record, I cannot find fault with the SBT’s ultimate findings as they pertained to the Appellant’s physical impairments. With respect, however, it is my view that the SBT erred in law in arriving at its findings with respect to the Appellant’s mental impairments.

[36] The SBT found, correctly in my view, that the Appellant’s medical evidence did not support a finding that, at the time of the Respondent’s decision, his physical impairments, namely his left shoulder pain, IBS, hearing loss, diabetes, scoliosis and carpal tunnel syndrome, rose to the level of substantial.

[37] With the exception of the Appellant’s IBS and hearing loss, none of his other reported physical conditions were listed in the Health Status Report filed with his initial application. While the Appellant’s Self-Report disclosed that he was in, “a lot of pain”, neither the Self-Report nor the letter that accompanied his application disclosed any physical cause for that pain. The SBT correctly observed that much of the medical evidence supporting physical impairments, and in particular the Appellant’s reported left shoulder impairment, “significantly post-date[d] the Director’s decision.”

[38] The Appellant’s oral evidence also did not support the presence of substantial physical impairments at the time of the Respondent’s decision. It confirmed that his physical symptoms, and particularly his left shoulder pain, were more debilitating at the time of the hearing, but that overall they were secondary to his mental health issues. When describing his physical symptoms, he testified that, “I don’t really, it doesn’t bother me. But once it starts becoming a bigger problem, I kind of get it seen to.”

[39] I would note that the SBT’s findings about the significance of the Appellant’s pharmacological and other treatment for his physical impairments did not demonstrate an appreciation of the evidence. For example:

a. The absence of prescribed pain medication did not inevitably lead to the conclusion that the Appellant physical impairments were not substantial, when considered in the context of his history of substance abuse, his suicidal thoughts, and his adverse reactions to other prescribed medications.

b. The SBT failed to acknowledge the Appellant’s evidence regarding his finances as a barrier to receiving physical therapy.

c. The SBT noted that the Appellant did not use hearing aids, but failed to acknowledge the family physician’s note in the Health Status Report that hearing aids were not applicable to the Appellant’s condition.

[40] While these findings would not have changed the eventual decision regarding the Appellant’s physical impairments, they were symptomatic of the errors that the SBT made in arriving at its decision regarding his mental impairments.

[41] In reviewing the documentary and oral evidence regarding the Appellant’s mental impairments, it is apparent that the SBT disregarded undisputed evidence and failed to appreciate relevant evidence supporting the presence of substantial mental impairments. In doing so, it erred in law.

[42] The evidence supporting the Appellant’s mental impairments was substantial. The record disclosed a history of mental health issues originating when the Appellant was in his teens. He testified that his mental health had been his priority in seeking and accessing healthcare. It was his evidence, verified by his family physician, that he had been prescribed numerous mood-stabilizing medications, which he was unable to continue as a result of adverse side effects and a lack of efficacy.

[43] It was also the Appellant’s evidence, verified by his family physician, that he had been referred for psychological counselling; both confirmed that he had undertaken past counselling and psychiatric treatment, and that he was being re-referred for further services. He testified to both functional and financial barriers to accessing treatment. It was his evidence that he had difficulty using public transportation due to his anxiety and that he was required to rely on the willingness and ability of others to drive him. He noted that an allowance that he was formerly able to use to pay for private transportation had been eliminated.

[44] The Appellant described that, at the time of the Respondent’s decision, he was “crying all the time” and his “emotions were very high”. He experienced, “a lot more bad days than good”. He described having “very bad” days when he would be, “paralyzed with [his] thoughts”. He experienced a lot of “inner chatter” that impaired his focus and concentration. He testified, and his physician’s report confirmed, that he had experienced suicidal thoughts. He testified that he had difficulty getting out of bed, and that there were occasions when he did not shower for one or two weeks or change his clothes. It was his evidence that he suffered from panic attacks.

[45] In the face of this evidence, it is difficult to reconcile the SBT’s finding that the Appellant provided, “very little detail” in relation to his mental health conditions and how they impacted him.

[46] It is also difficult to reconcile the SBT’s finding that the IEWS ratings prepared by the Appellant’s family physician were, “less reliable indicators of the substantiality of the Appellant’s impairments during the time in question” than his ALDI ratings.

[47] The IEWS ratings spoke to the Appellant’s mental functioning including his attention, emotions, impulse control, insight, cognitive functioning, memory, and depressive problems. They confirmed that he was experiencing “moderate symptoms or signs” and presented with “safety concerns”. The SBT’s decision to discount these ratings due to a “lack of treatment and medical intervention and medical documentation” was contradicted by the evidence including the following:

a. The SBT’s finding that the Appellant had received “very little pharmacological treatment” was inconsistent its finding that the Appellant was, “either taking or weaning off of a prescription medication for his mental health conditions” at the time of the Respondent’s decision. It also demonstrated a lack of appreciation of the evidence that multiple efforts had been made to identify suitable prescription medications to treat the Appellant’s mental health issues.

b. The SBT’s finding that there was a “lack of treatment” failed to acknowledge its finding that that Appellant had received, “[a] referral to a mental health centre, which the Tribunal recognizes the Appellant is still waiting to come to fruition.”

[48] On the evidence presented, the SBT was required to consider whether the Appellant’s mental health impairment and his physical impairments, either individually or collectively, demonstrated that he was a “person with a disability” within the meaning of the ODSPA.

[49] In my view, the SBT failed to do this. Instead, it focussed its attention on the absence of evidence supporting Appellant’s physical impairments to the exclusion of the evidence supporting his long-standing mental health impairments. In doing so, it failed to fully consider and to appreciate relevant evidence regarding the Appellant’s mental health impairments as a basis for disability in their own right, thereby committing an error of law.

Disposition

[50] I find that the SBT committed an error of law that can only be rectified by setting its decision aside.

[51] The Appellant requested that the court issue a declaration that the Appellant qualifies as a person with a disability under s. 4(1) of the ODSPA. Alternatively, he requested that the court order that a new hearing be conducted before a different member of the SBT.

[52] There were no submissions which persuaded me that there is any urgency, undue delay, or exceptional circumstances which would warrant this court’s intervention with declaratory relief. I find that an order for a new hearing before a different member of the SBT is the more appropriate relief, and I make that order accordingly.

[53] Neither party requested their costs of the appeal, either in their pleadings or their submissions, and no costs shall be ordered.

Cullin, J.

I agree:

D.L. Corbett, J.

I agree:

McGee, J.

Released: October 27, 2023

CITATION: Burnside v. Ontario (Disability Support Program), 2023 ONSC 6071

DIVISIONAL COURT FILE NO.: DC-23-1352 (Oshawa)

DATE: 2023-10-27

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CORBETT, McGEE, CULLIN, JJ.

BETWEEN:

Evan Burnside Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Children, Community and Social Services Respondent

REASONS FOR DECISION

Cullin J.

Released: October 27, 2023