Gray v. Director of the Ontario Disability Support Program [Indexed as: Gray v. Ontario (Disability Support Program, Director)]

59 O.R. (3d) 364

[2002] O.J. No. 1531

Docket No. C37008

Court of Appeal for Ontario

McMurtry C.J.O., Catzman J.A. and Gillese J. (ad hoc)

April 25, 2002

Social welfare -- Disability pension -- Ontario Disability Support Program Act should be interpreted broadly and liberally -- Any ambiguity in interpretation of Act should be resolved in claimant's favour -- Definition of "person with disability" in Act intended to encompass broader segment of society than its predecessor and to provide assistance to persons with significant but not severe long-term functional barriers -- Claimant claiming to be in constant pain from low abdominal pain and migraine headaches and unable to lift or bend -- Social Benefits Tribunal finding claimant to be credible but concluding that cumulative effect of her impairment did not preclude her from functioning in workplace and that she was not person with disability -- Tribunal did not fulfill its statutory obligation to give reasons -- Claimant's appeal allowed -- Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B.

The appellant made a claim for disability benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B. She testified that she had suffered from low abdominal pain, menstrual headaches and migraine headaches, that she was in constant pain and took Tylenol and Demerol injections to help alleviate the pain, and that she was unable to lift anything or do any bending. She claimed that she did not have the strength to hold down any kind of employment. The Director of the Ontario Disability Support Program found that the appellant was not a "person with a disability" within the meaning of the Act. That decision was upheld by the Social Benefits Tribunal, which found the claimant to be credible but concluded that she was able to cope on a day-to-day basis, that the cumulative effect of her impairment did not preclude her from functioning in the workplace, that her medical condition was not a substantial physical impairment that was continuous and expected to last one year or more, and that she was not, therefore, a "person with a disability" within the meaning of the Act. The Divisional Court affirmed that decision. The appellant appealed.

Held, the appeal should be allowed.

As remedial legislation, the Act should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities. As the Act was social welfare legislation, any ambiguity in its interpretation should be resolved in the claimant's favour. The current definition of a disabled person is much more generous than the previous version. The qualifiers "major" and "severe" have been replaced by the more moderate "substantial". Also, instead of a "prolonged period of time", an impairment is now required to last "one year or more". Compared with its predecessor and with similar federal legislation, it would appear that the current definition of "person with a disability" in the Act was intended to encompass a broader segment of society and to provide assistance to persons with significant but not severe long-term functional barriers. The word "substantial" in s. 4(1)(a) of the Act 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.

The regulations passed under the Act require in s. 67(3) that "the Tribunal's decision shall include the principal findings of fact and its conclusions based on those findings". The Tribunal found the appellant to be credible. Notwithstanding the fact that the appellant testified that she was unable to hold down any form of employment, the Tribunal found that she was "able to cope on a day to day basis" and then concluded that the cumulative effect of her impairment did not preclude her from functioning in the workplace or place a substantial restriction on her daily activities. It was unclear what relevant evidence the Tribunal accepted and what it rejected. The Tribunal did not fulfill its statutory obligation to give reasons. There was little or no explanation of the reasoning process that led the Tribunal to conclude that the appellant was not a person with a disability within the meaning of s. 4(1) of the Act. The Tribunal also asked itself the wrong question when it stated that the appellant was able to cope on a day to day basis. The issue was not whether she could cope on a day to day basis but whether she could function in the workplace, function in the community or attend to her personal care.

APPEAL from a judgment of the Divisional Court dismissing an appeal from a decision of the Social Benefits Tribunal upholding a decision of the Director of the Ontario Disability Support Program.

Cases referred to Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2, 142 D.LR. (3d) 1, 46 N.R. 185; Dalgliesh v. Green (1993), 15 O.R. (3d) 129, 48 M.V.R. (2d) 1 (C.A.) [Leave to appeal to S.C.C. refused (1994), 17 O.R. (3d) xvi] (sub nom. Meyer v. Bright); Desai v. Brantford General Hospital (1991), 87 D.L.R. (4th) 140 (Ont. Div. Ct.); Director of the Ontario Disability Support Program v. Eluck (2001), 151 O.A.C. 369 (Div. Ct.); Northwestern Utilities Ltd. v. Edmonton (City), [1978] 1 S.C.R. 684, 7 Alta. L.R. (2d) 370, 89 D.L.R. (3d) 161, 23 N.R. 564; Wedekind v. Ontario (Ministry of Community and Social Services) (1994), 21 O.R. (3d) 289, 121 D.L.R. (4th) 1, 7 C.C.E.L. (2d) 161 (C.A.) [Leave to appeal to S.C.C. refused (1995), 13 C.C.E.L. (2d) 78n, 191 N.R. 397n]; Ontario Disability Support Program (Director) v. Gallier, [2000] O.J. No. 4541 (Div. Ct.); VIA Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25, 193 D.L.R. (4th) 357, 261 N.R. 184 (C.A.); Villani v. Canada (Attorney General) (2001), 2001 FCA 248, [2002] 1 F.C. 130, 205 D.L.R. (4th) 58, 275 N.R. 324 (C.A.) Statutes referred to Administrative Procedures Act, R.S.A. 1970, c. 2, s. 8 Canada Pension Act, R.S.C. 1985, c. C-8, s. 42(2)(a) Interpretation Act, R.S.O. 1990, c. I.11, s. 10 Insurance Act, R.S.O. 1990, c. I.8, s. 266 Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, ss. 4(1), 31(1), (5) Public Hospitals Act, R.S.O. 1980, c. 410, s. 38 Rules and regulations referred to O. Reg. 222/98 ("Ontario Disability Support Program Act"), s. 67 R.R.O. 1990, Reg. 776, s. 2

John McKean and Mary McCormack, for appellant. Rebecca Givens, for respondent.

The judgment of the court was delivered by

[1] MCMURTRY C.J.O.: -- This is an appeal pursuant to leave granted by this court from a majority decision of the Divisional Court denying the appellant's appeal from a decision of the Social Benefits Tribunal (the "Tribunal"). The Tribunal had upheld the decision of the Director of the Ontario Disability Support Program (the "Director") that the appellant was not a "person with a disability" within the meaning of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B ("ODSPA") and was therefore not eligible for income support under that legislation.

[2] The appeal raises the important issue of the appropriate determination of substantial impairment 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.

Decisions Below

1. Social Benefits Tribunal

[3] The reasons of the Tribunal delivered on April 26, 1999 are not lengthy and for convenience are largely reproduced as follows:

The Appellant testified that she has been troubled with low abdominal pain, menstrual headaches and migraine headaches for the past number of years. She is in constant pain and takes Tylenol and Demerol injections to help alleviate the pain. She is unable to lift anything, or do any bending. The pain keeps her awake at night.

She stated that she attempts to do the housekeeping, but has difficulty, as she does not have the strength to do it. She said that she is able to dress and bathe herself but that is the extent of her physical capability. She will go outside the house as she volunteers at the local legion from time to time. She testified that she does not have the strength to hold down any kind of employment.

The Disability Adjudication Unit received the Health Status Report and Activities of Daily Living Form, both signed by her family doctor and the Self-Report Form on August 24, 1998.

The Health Status report indicated that the Appellant's medical conditions were left side cervicogenic headaches, migraines, chronic mechanical back pain and recurrent abdominal pain.

The Health Status Report indicated that the Appellant cannot climb stairs, bend, lift, or walk very far. However, the Activities of Daily Living Report indicates that the Appellant is completely independent in terms of physical strength, stamina, and tolerance in the performance of daily activities. The Self-Report Form filled out by the Appellant claims that it is impossible for her to function on a daily basis as a result of her headaches.

The Tribunal notes that there is little, if any, objective medical evidence to support the Appellant's self described restrictions in activities of daily living.

The Tribunal notes that the family doctor did state and acknowledge that the Appellant is medically able to participate in an appropriate training program on a full time basis now.

The Tribunal is guided by the Legislation of the Ontario Disability Support Program Act, Section 4.(1).

The Tribunal found the testimony of the Appellant to be credible.

The Tribunal notes that the reports from numerous medical specialists paints a somewhat different picture of the effects of the Appellant's medical condition of daily living than the Appellant does. An eurologist and a neurosurgeon indicated that all of her tests were "within normal limits". The Tribunal, as noted above, found the Appellant to be credible and concludes that the physical impairment of the Appellant can from time to time result in some, but not a substantial, restriction of her activities of daily living.

The Tribunal is of the opinion that the Appellant's medical condition is not a substantial physical impairment that is continuous and is expected to last one year or more. The Appellant has been troubled with these conditions for the past few years and according to her testimony, is able to cope on a day to day basis.

The Tribunal finds that the cumulative effect of the impairment on the Appellant does not preclude her from functioning in the workplace nor places a substantial restriction in her daily activities.

Having considered all of the evidence the Tribunal concludes that the Appellant is not a person with a disability within the meaning of section 4(1) of the Ontario Disability Support Program Act.

[4] The medical report dated January 30, 1999 filed before the Tribunal contained the following statements:

Ms. Gray's primary medical conditions presently are migraine headaches (primarily menstrually triggered) and chronic mechanical back pain. She also has chronic left cervicogenic pain. . . .

As for her headache disorder, it has plagued her for over a decade. She has concomitant to these, left side neck pain. Her headache disorder actually consists of two types of headache. . . .

Unfortunately, she is prevented form [sic] even pursuing her activities of daily living leave alone work on days when her headaches flare up significantly. . . .

Given her headaches and back pain she feels unable to pursue and maintain gainful employment. I concur that it would be difficult for her to find and maintain gainful employment given the combination of her medical ailments; lack of job skills; lack of local employment; and lack of rehabilitation/ training programs available for her.

Given the above reasoning, I would support this individual's pursuit of a disability pension.

2. Divisional Court

[5] Pursuant to s. 31(1) of the ODSPA "[a]ny party to a hearing before the Tribunal may appeal the Tribunal's decision to the Divisional Court on a question of law."

[6] The majority of the Divisional Court dismissed the appellant's appeal. The majority decision of O'Leary J. stated in part that it cannot be said that "as a matter of law that because Cassie Gray is prevented from pursuing her activities of daily living one or two days a month because of migraine headaches" that she has a "substantial restriction in one or more of her activities of daily living". It is evident from the reasons of O'Leary J. that he placed great emphasis on the fact that both he and the Tribunal had interpreted the evidence as having established that the "activities of daily living" of the appellant had been restricted for only one or two days per month.

Analysis

I

[7] It is my opinion that in her dissent in the Divisional Court, Aitken J. more accurately described the evidence in relation to the nature of the health problems that affected the appellant. Aitken J. in her reasons described the evidence relating to the appellant's condition as follows:

The Appellant testified that she has been troubled with low abdominal pain, menstrual headaches and migraine headaches for the past number of years. She is in constant pain and takes Tylenol and Demerol injections to help alleviate the pain. She is unable to lift anything, or do any bending. The pain keeps her awake at night.

She stated that she attempts to do the housekeeping, but has difficulty, as she does not have the strength to do it. She said that she is able to dress and bathe herself but that is the extent of her physical capability. She will go outside the house as she volunteers at the local legion from time to time. She testified that she does not have the strength to hold down any kind of employment.

[8] Aitken J. also refers to the decision of the Divisional Court in Ontario Disability Support Program (Director) v. Gallier, [2000] O.J. No. 4541 where Lang J. provided some guidelines regarding the interpretation of s. 4(1) of the ODSPA and the role of the Tribunal upon an appeal from the Director's decision. I am in particular agreement with the following statement of Lang J.:

It is our view that the Tribunal was entitled to consider the applicant in the context of her own situation. We are supported in this regard by the wording of s. 4(1) which requires a consideration of "the person". The test is not whether any person with these impairments and restrictions met the criteria, but whether this person met the criteria.

[9] As remedial legislation, the ODSPA should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities. Section 10 of the Interpretation Act, R.S.O. 1990, c. I.11 provides:

10. Every Act shall be deemed to be remedial . . . and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

[10] It is my view that as social welfare legislation, any ambiguity in the interpretation of the ODSPA should be resolved in the claimant's favour. In Wedekind v. Ontario (Ministry of Community and Social Services) (1994), 21 O.R. (3d) 289, 121 D.L.R. (4th) 1 (C.A.) at pp. 296-97 O.R., this court stated:

[T]he principle of construction . . . applicable to social welfare legislation . . . is, where there is ambiguity in the meaning of a statute, the ambiguity should be resolved in favour of the applicant seeking benefits under the legislation.

[11] Likewise, in Abrahams v. Canada (Attorney General), [1983] 1 S.C.R. 2 at p. 10, 142 D.L.R. (3d) 1, Wilson J. wrote with respect to the Unemployment Insurance Act:

Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation. . . . I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant.

[12] The rationale for such an approach was set out by the Federal Court of Appeal in Villani v. Canada (Attorney General) (2001), 2001 FCA 248, 205 D.L.R. (4th) 58, 275 N.R. 324 (F.C.A.) at p. 70 D.L.R. as follows:

The liberal approach to remedial legislation flows from the notion that such legislation has a benevolent purpose which courts should be careful to respect.

See also Director of the Ontario Disability Support Program v. Eluck (2001), 151 O.A.C. 369 (Div. Ct.) at para. 12, Ontario Disability Support Program (Director) v. Gallier, [2000] O.J. No. 4541 (Div. Ct.), at para 13.

[13] It should also be noted that the current definition of a disabled person is much more generous than the previous version. For instance, the qualifiers "major" and "severe" have been replaced by the more moderate "substantial". Also, instead of a "prolonged period of time", an impairment is now required to last "one year or more".

[14] It may also be worth comparing the ODSPA to the federal disability pension legislation. Section 42(2)(a) of the Canada Pension Act, R.S.C. 1985, c. C-8, provides that "a person shall be considered to be disabled only if he is determined . . . to have a severe and prolonged mental or physical disability . . .".

[15] 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.

[16] 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.

[17] Although we are dealing with a social assistance scheme as contrasted with the interpretation of legislation related to insurance, I believe that a useful analogy may be drawn from the exception provided in s. 266 of the Insurance Act, R.S.O. 1990, c. I.8. In this provision, personal injury litigation arising from automobile accidents is prohibited except for persons with "permanent serious impairment of an important bodily function". In Meyer v. Bright (1993), 15 O.R. (3d) 129, 48 M.V.R. (2d) 1 (C.A.), this court has interpreted this provision as follows at p. 142 O.R.:

An impairment of an important bodily function which is serious to one person may not necessarily be a serious one for someone else. The task of the court in each case will be to decide whether the impairment is serious to the particular injured person who is before the court. In performing that task the question will always be the detrimental effect which the impairment has upon the life of the particular injured person. It is impossible for this court to lay down general guidelines of the concept of seriousness in all cases. Each case must be decided upon its own facts.

II

[18] The regulations passed under the ODSPA require in s. 67(3) that "the Tribunal's decision shall include the principal findings of fact and its conclusions based on those findings" (O. Reg. 222/98, s. 67).

[19] The regulations governing the Social Assistance Review Board (the predecessor to the Social Benefits Tribunal, under the former Family Benefits Act) also required that board to provide a notice of its decision in writing, including the principal findings of fact on the evidence and the conclusions based on the findings of fact (R.R.O. 1990, Reg. 776, s. 2).

[20] The Supreme Court of Canada considered a similar statutory obligation to provide reasons in Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684, 89 D.L.R. (3d) 161. That case dealt with s. 8 of the Alberta Administrative Procedures Act, R.S.A. 1970, c. 2, which imposed an obligation on certain administrative tribunals to provide a written statement of its decision, the facts upon which the decision was based and the reasons for it. Section 8 (now s. 7 of the Act) stated:

8. Where an authority exercises a statutory power so as to adversely affect the rights of a party, the authority shall furnish to each party a written statement of its decision setting out

(a) the findings of fact upon which it based its decision, and

(b) the reasons for the decision.

Estey J. stated at pp. 705-07 S.C.R., pp. 175-76 D.L.R.:

The law reports are replete with cases affirming the desirability if not the legal obligation at common law of giving reasons for decisions: vide Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 42 D.L.R (3d) 271 at p. 276, 7 N.B.R. (2d) 41 at p. 47 (N.B.S.C.A.D.), per Hughes, C.J.N.B.; MacDonald v. The Queen (1976), 68 D.L.R. (3d) 649 at p. 654, 29 C.C.C. (2d) 257 at p. 262, [1977] 2 S.C.R. 665, per Laskin, C.J.C. This obligation is a salutary one. It reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal and if taken, the opportunity in the reviewing or appellate tribunal of a full hearing which may well be denied where the basis of the decision has not been disclosed. This not to say, however, that absent a requirement by statute or regulation a disposition by an administrative tribunal would be reviewable solely by reason of a failure to disclose its reasons for such disposition.

The Board in its decision allowing the interim rate increase which is challenged by the City failed to meet the requirements of s. 8 of the Administrative Procedures Act. It is not enough to assert, or more accurately, to recite, the fact that evidence and arguments led by the parties have been considered. That much is expected in any event. If those recitals are eliminated from the "reasons" of the Board all that is left is the conclusion of the Board "that the forecast revenue deficiency in the 1975 future test year requested by the Company cannot be properly characterized as 'past losses'". The failure of the Board to perform its function under s. 8 included most seriously a failure to set out "the findings of fact upon which it based its decision" so that the parties and a reviewing tribunal are unable to determine whether or not, in discharging its functions, the Board has remained within or has transgressed the boundaries of its jurisdiction established by its parent statute. The obligation imposed under s. 8 of the Act is not met by the bald assertion that, as Keith J. succinctly put it in Re Canada Metal Co. Ltd. et al. and MacFarlane (1973), 41 D.L.R. (3d) 161 at p. 171, 1 O.R. (2d) 577 at p. 587, when dealing with a similar statutory requirement, "my reasons are that I think so".

The appellants are not assisted by the decision of the Appellate Division of the Supreme Court of Alberta in Dome Petroleum Ltd. v. Public Utilities Board (Alberta) et al. (1977), 2 A.R. 453, 13 N.R. 301; affirmed by this Court at [1977] 2 S.C.R. 822, 2 A.R. 451, 13 N.R. 299, to the effect that under s. 8 of the Administrative Procedures Act the reasons must be proper, adequate and intelligible, and must enable the person concerned to assess whether he has grounds of appeal.

Brevity in this area of prolixity is commendable and might well be rewarded by a different result herein but for the fact that the order of the Board reveals only conclusions without any hint of the reasoning process which led thereto.

[21] In Desai v. Brantford General Hospital (1991), 87 D.L.R. (4th) 140 (Ont. Div. Ct.), the court considered the requirement to give reasons set out in s. 38 of the Public Hospitals Act, R.S.O. 1980, c. 410. Section 38 of the Public Hospitals Act provided that:

38(1) Any,

(a) applicant for appointment or reappointment to the medical staff of a hospital who was a party to a proceeding before the board and who considers himself aggrieved by a decision of the board not to appoint or not to reappoint him to the medical staff; or

(b) member of the medical staff of a hospital who considers himself aggrieved by any decision revoking or suspending his appointment to the medical staff or under section 31 or the by-laws cancelling, suspending or substantially altering his hospital privileges,

is entitled to,

(c) written reasons for the decision if a request is received by the board, person or body making the decision within seven days of the receipt by the applicant or member of a notice of the decision; and

(d) a hearing before the Appeal Board if a written request is received by the Appeal Board and the board, person or body making the decision within seven days of the receipt by the applicant or member of the written reasons for the decision.

Rosenberg J. said at p. 148 D.L.R.:

The appellants are entitled not only to know the facts that are relied on by the hospital but as well their reasoning in coming to the conclusions that they did, and precisely what those conclusions are, and preferably to have some idea of the importance the Hospital Board of Governors, after being advised, attaches to each of the facts as they find them to be.

Further, at pp. 149-50 D.L.R., Rosenberg J. said:

In order to avoid . . . the court having to again rule that the reasons given do not comply with the law, it would be appropriate for the board, as part of their reasons, to recite some of the facts as set out in the peer review reports and any of the facts from the two years of review in the Department of Anaesthesiology referred to . . . It would also be helpful to the appellants if they had some idea of the board's consideration with regard to the importance of some of the facts recited. It is possible that some of the facts referred to would not be considered by the board as indicating incompetency that would in themselves result in a reduction of hospital privileges. If such is the case, the appellants should know which of the alleged indications of incompetency or inappropriate actions are considered by the board to be crucial so that they can determine whether or not they are able to respond to those allegations.

[22] Recently, the Federal Court of Appeal considered the nature and extent of a statutory duty to give reasons in VIA Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 (C.A.). Sexton J.A. said at pp. 35-36 F.C.:

The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:

Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. [Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at p. 845.]

Reasons also provide the parties with the assurance that their representations have been considered.

In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.

The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons." [See J.M. Evans, Administrative Law: Cases, Text and Materials (4th ed.), (Toronto: Emond Montgomery, 1995), at p. 507.]

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. [See: Northwestern Utilities et al. v. City of Edmonton, [1979] 1 S.C.R. 684, at p. 706-707; Desai v. Brantford General Hospital; Desai v. St. Joseph's Hospital (1991), 87 D.L.R. (4th) 140 (Ont. Div. Ct.), at p. 148; Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.), at pp. 637, 687-688.]

III

[23] In its reasons, the Tribunal referred to the evidence of the appellant that she "is in constant pain . . . unable to lift anything, or do any bending and that she does not have the strength to hold down any kind of employment". The reasons of the Tribunal emphasized that it "found the testimony of the appellant to be credible". Notwithstanding the fact that the appellant testified that she was unable to hold down any form of employment, the Tribunal found that the appellant "is able to cope on a day to day basis" and then concluded that "the cumulative effect of the impairment of the appellant does not preclude her from functioning in the workplace nor places a substantial restriction on her daily activities". It is simply unclear what relevant evidence the Tribunal accepted and what it rejected. It is my view that the Tribunal has not fulfilled its responsibilities pursuant to s. 67(3) of the ODSPA [Regulations] to set out the principal findings of fact and its conclusions based on those findings.

[24] There is little or no explanation of the reasoning process that led the Tribunal to conclude that "the Appellant is not a person with a disability within the meaning of section 4(1) of the Ontario Disability Support Program Act." It was incumbent upon the Tribunal to make findings of fact concerning the appellant's testimony and the reports prepared by her doctor.

[25] The Tribunal also appears to have asked itself the wrong question when it stated that "according to her testimony (the appellant) is able to cope on a day to day basis". The issue is, of course, not whether the appellant "can cope on a day to day basis" but, whether she can function in the workplace, function in the community or attend to her personal care. Both the appellant and her physician stated that she could not, and I repeat that the Tribunal emphasized that the appellant was a credible witness.

Standard of Review

[26] The decisions of the Social Benefits Tribunal are not protected by a privative clause. Its decisions can be appealed to the Divisional Court on a question of law. The respondent conceded in argument that if the Tribunal failed to give reasons pursuant to the requirements of the regulations passed under the ODSPA, that would be an error of law as would be a failure on the part of the Tribunal to ask itself the right question. I conclude that the Tribunal did fail to comply with the requirements for its written reasons for decision set out in s. 67(3) of the regulations passed under the ODSPA and also asked itself the wrong question. Such errors do not entitle the Tribunal to any deference.

Conclusion

[27] The appeal is therefore allowed and the majority decision of the Divisional Court is set aside. In the unusual circumstances of this case, particularly in view of the findings related to the appellant's credibility, it is unfortunate that the matter need be sent back to the Tribunal. However, in light of s. 31(5) of the ODSPA, we are constrained in the relief we may grant. Thus, the matter is referred back to the Tribunal for reconsideration in accordance with the direction that this court is satisfied that the appellant is "a person with a disability within s. 4(1) of the Ontario Disability Support Program Act".

[28] While the appellant would be normally entitled to her costs before the Divisional Court and in this court, counsel may make submissions in writing related to costs.

Appeal allowed.