Director of the Ontario Disability Support Program of the Ministry of Community and Social Services v. Crane

[Indexed as: Ontario (Director, Disability Support Program) v. Crane]

83 O.R. (3d) 321

Court of Appeal for Ontario,

Feldman, MacPherson and Sharpe JJ.A.

November 15, 2006

Social assistance -- Entitlement -- Disability -- Claimant for benefits under Ontario Disability Support Program Act having to establish all three aspects of definition of "person with a disability" set out in ss. 4(1)(a), (b) and (c) of Act -- Social Benefits Tribunal not erring in finding that it did not have to consider paragraphs (b) and (c) after finding that claimant did not have "substantial physical or mental impairment" as required by s. 4(1)(a) -- Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, s. 4(1).

The respondent applied for benefits under the Ontario Disability Support Program Act, 1997. Under s. 4(1) of the Act, a person is a person with a disability 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." The respondent suffered from fibromyalgia, depression and headaches, and worked two days a week at a convenience store. The Social Benefits Tribunal denied her application for benefits on the ground that the respondent did not have a substantial physical or mental impairment. The Tribunal found that, as the respondent had failed to meet the first test, it was unnecessary to consider the other tests set out in s. 4(1). The Divisional Court allowed the respondent's appeal and ordered a new hearing. The Director of the Ontario Disability Support Program appealed.

Held, the appeal should be dismissed.

The Tribunal did not err in its interpretation of s. 4(1) of the Act, and in particular did not err by declining to engage in a s. 4(1)(b) analysis after concluding that the respondent had not established that she had a substantial impairment under s. 4(1)(a). Section 4(1) presents three questions -- substantial impairment, substantial restriction in certain activities, and verification. These are separate questions that require separate analysis and answers. The onus is on the claimant to establish all three factors. Accordingly, if the Tribunal concludes that the claimant has failed to establish one of the factors, it need not deal with the other factors. In some cases (but not all), there can be an overlap in the evidence relevant to the factors in paragraphs (a) and (b) of s. 4(1). That is because although the concept of impairment is anchored in medicine, 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. The Divisional Court erred in conflating or collapsing the analysis required under s. 4(1)(a) and (b) into a single inquiry.

The Tribunal made a factual error in finding that the respondent had been working for approximately three years on a part-time basis, whereas in fact she had been working at the convenience store for only four months prior to the [page 322] hearing. This misapprehension of the evidence amounted to a palpable and overriding error. The respondent was entitled to have her claim assessed on the basis of an accurate understanding by the Tribunal of a crucial aspect of her case, her employment history.

APPEAL from the judgment of Matlow and Kiteley JJ. (Gravely J. dissenting) (2005), 2005 21115 (ON SCDC), 75 O.R. (3d) 282, [2005] O.J. No. 2441 (Div. Ct.), allowing an appeal from a decision of the Social Benefits Tribunal.

Cases referred to

Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531, 212 D.L.R. (4th) 353 (C.A.); McLaughlin v. Ontario (Director, Disability Support Program), [2002] O.J. No. 1740 (Div. Ct.); Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446, 48 M.V.R. (2d) 1 (C.A.) [Leave to appeal to S.C.C. refused [1993] S.C.C.A. No. 540, 17 O.R.(3d) xvi]; Ontario (Director, Disability Support Program) v. Gallier, 2000 49294 (ON SCDC), [2000] O.J. No. 4541 (Div. Ct.), consd

Other cases referred to

Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, [2006] S.C.J. No. 14, 266 D.L.R. (4th) 287, 347 N.R. 144

Statutes considered

Insurance Act, R.S.O. 1990, c. I.8, s. 266(1)

Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B, ss. 4(1), 31(1)

Geoffrey Baker and Michelle Schrieder, for appellant. Grace Kurke, Lesli Bisgould and James Arenburg, for respondent.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. Introduction

[1] The Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B. ("ODSPA"), is a relatively recent Ontario statute whose purpose is "to ensure support for disabled applicants, recognizing that the government shares the responsibility of providing such support": see Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, [2006] 1 S.C.R. 513, [2006] S.C.J. No. 14, 266 D.L.R. (4th) 287, at para. 3.

[2] April Crane applied for benefits under the ODSPA. The Social Benefits Tribunal (the "Tribunal") conducted a hearing and denied her the benefits she sought. She appealed to the Divisional Court. A majority of the court allowed her appeal and ordered a new hearing before a different member of the Tribunal. The Director of the Ontario Disability Support Program of the Ministry of Community and Social Services appealed to this court. [page 323]

[3] The principal issue on the appeal is the interpretation of the definition of "a person with a disability" in s. 4(1) of the ODSPA and, in particular, of the "a substantial physical or mental impairment" component of the definition in s. 4(1)(a). A second issue relates to the Divisional Court's conclusion that the Tribunal "made critical findings of fact that were clearly wrong and constituted palpable and overriding error".

B. Facts

[4] April Crane is a 33-year-old woman who lives with her husband and four children in Levack, Ontario. On May 28, 2002, she applied for disability benefits under the ODSPA. On November 12, 2002, the Director of the Disability Support Program denied her application. Ms. Crane requested an internal review of this decision. On February 17, 2003, the Director confirmed the initial decision.

(1) The decision of the Social Benefits Tribunal

[5] Ms. Crane appealed to the Tribunal. A hearing took place on February 3, 2004. In a written decision released on March 23, 2004, Presiding Member Joyce Foster denied the appeal and affirmed the decision of the Director.

[6] The central issue before the Tribunal was whether Ms. Crane was "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.

[7] The Tribunal summarized the evidence relating to Ms. Crane's physical and mental functioning. Her application was based on evidence of "fibromyalgia, asthma, anxiety/depression and headaches". Fibromyalgia was identified by her family doctor, Dr. Jennifer Laski, as the "principal condition of impact" giving rise to the application and asthma was listed as the one other condition in the Health Status Report. Fatigue, generalized myalgia, irritability and emotional lability were listed as the [page 324] impairments due to the condition of fibromyalgia. In a narrative report dated June 16, 2003, Dr. Laski mentioned that Ms. Crane had a "psychiatric problem" comprising the "emotional difficulties" of depression, anxiety and emotional lability and that she has "experienced headaches also as a result of the anxiety and depression". In the same report, Dr. Laski offered the opinion that "Mrs. Crane will never be suitable for employment". However, in a handwritten notation below her signature Dr. Laski recorded, "NB it has come to my attention since writing this letter that Mrs. Crane is working in a convenience store." This notation was accurate; Ms. Crane had been working two days per week at a convenience store since October 2003.

[8] The Tribunal took note of Ms. Crane's testimony about her daily activities:

[S]he is able to go shopping and is able to lift ten pounds with the children or her spouse lifting the heavier items and carrying the laundry basket. She is able to knit, sew and do professional cake decorating despite the problems she said she had with her hands and arms. She is able to drive, do the banking and attend to her personal care with a minimal amount of help from her spouse. She is out of the house four or five times a week for work or boys hockey. She volunteers with the soccer team and hockey associations.

[9] The Tribunal then set out its assessment of Ms. Crane's testimony:

All this evidence indicates to the Tribunal that the Appellant's impairments have not reached the level where they have a substantial impact on her lifestyle. This assessment finds further support in the Activities of Daily Living Report completed by the Appellant's family doctor where the categories are marked from having a low moderate impact on lifestyle to having no impact on lifestyle and having complete independence or not being applicable.

[10] The Tribunal denied Ms. Crane's appeal. It concluded:

In order to be found disabled under s. 4(1) of the act, an applicant must meet two substantial thresholds. First, there must be a substantial impairment. Secondly, the direct and cumulative effect of this impairment must result in a substantial restriction in one or more activities of daily living.

The Appellant fails the first test of the legislated definition of a person with a disability in that she is not found to have a substantial physical or mental impairment. Having found that the Appellant failed to meet the first test, the Tribunal will not consider the other tests contained in the legislation. The appeal is denied.

[11] Ms. Crane sought a reconsideration of the Tribunal's decision. On June 22, 2004, Frank Miclash, the Interim Chair of the Tribunal, denied this request and confirmed the Tribunal's decision. Ms. Crane appealed to the Divisional Court pursuant to s. 31(1) of the ODSPA, which provides: [page 325]

31(1) Any party to a hearing before the Tribunal may appeal the Tribunal's decision to the Divisional Court on a question of law.

(2) The decision of the Divisional Court

[12] The majority of the Divisional Court set aside the Tribunal's decision and ordered a new hearing before a differently constituted Tribunal. Matlow J., with Kiteley J. concurring, stated [at para. 2]:

I am persuaded that the Tribunal made important errors of law which now require this Court to intervene. In particular, the Tribunal erred in its interpretation of section 4(1) of the Ontario Disability Support Program Act, 1997, in its application of the Act to the evidence and in its consideration and interpretation of the evidence. As well, it made critical findings of fact that were clearly wrong and constituted palpable and overriding error.

Justice Gravely, writing in dissent, disagreed with virtually all aspects of the majority's reasoning and conclusions.

[13] The Director appeals, with leave, to this court.

C. Issues

[14] The issues in this appeal are:

(1) Did the majority of the Divisional Court err in its interpretation of s. 4(1) of the ODSPA?

(2) Did the majority of the Divisional Court err in concluding that the Tribunal's treatment of the evidence in the case amounted to palpable and overriding error?

D. Analysis

(1) The s. 4(1) interpretation issue

[15] The leading case relating to the interpretation of s. 4(1) of the ODSPA is Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531, 212 D.L.R. (4th) 353 (C.A.) ("Gray"). In his judgment in 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 for persons with disabilities" (para. 9).

[16] In order to receive income support, a claimant must establish that she is a person with a disability as defined in s. 4(1) of the ODSPA. This requires the claimant to meet two different thresholds -- first, establish that she has a substantial physical or mental impairment that is continuous or recurrent and expected to last one year or more (s. 4(1)(a)); and second, [page 326] establish that the direct and cumulative [effect] of the impairment results in a substantial restriction in activities of daily living in at least one of three domains, namely, personal care, functioning in the community, and functioning in the workplace (s. 4(1)(b)). In addition, the "substantial impairment" and "substantial restriction" thresholds must be verified by a person with prescribed qualifications, presumably, in most cases, a doctor (s. 4(1)(c)).

[17] The majority of the Divisional Court merged the contents of paras. (a) and (b) of s. 4(1). The majority said that it was meaningless to consider the concept of impairment in isolation; rather, impairment always required a consideration of "damage or weakness of some ability". The majority concluded, therefore, that "[t]aking subparagraph (a) and (b) together, it becomes clear that the determination of a person's claim for benefits cannot stop after an analysis of subparagraph (a) alone because the definition of person with a disability is not complete without applying both."

[18] With respect, I disagree. The core of the concept of impairment is medical. The dissenting judge referred to the definition of "impairment" in the World Health Organization's International Classification of Functioning, Disability and Health (ICF WHO Res. WHA 54.21 (2001) at p. 10): DEFINITIONS

In the context of health:

Body functions are the physiological functions of body systems (including psychological functions).

Body structures are anatomical parts of the body such as organs, limbs and their components.

Impairments are problems in body function or structure such as a significant deviation or loss.

Activity is the execution of a task or action by an individual.

Participation is involvement in a life situation.

Activity limitations are difficulties an individual may have in executing activities.

Participation restrictions are problems an individual may experience in involvement in life situations.

(Emphasis added)

[19] It is clear that the World Health Organization draws a distinction between impairment on the one hand and activity limitations and participation restrictions on the other hand. The same distinction is made in s. 4(1) of the ODSPA. Paragraph (a) deals [page 327] with impairment -- i.e., deviation or loss in body function or structure; para. (b) speaks to restrictions in the activities of daily living, including personal care, the community and the workplace. Accordingly, the dissenting judge was correct to conclude that s. 4(1) mandates two separate inquires and that the Tribunal did not err by declining to engage in a s. 4(1)(b) analysis after concluding that Ms. Crane had not established that she had a substantial impairment under s. 4(1)(a).

[20] It is important to observe, however, that although the inquiries mandated by paras. (a) and (b) of s. 4(1) relate to different issues or thresholds, the evidence relevant to the two inquiries can overlap. This is so because in some cases a simple description of the deviation or loss of body function or structure will not answer the question: is this a substantial impairment? To take but one example, the loss of an entire arm or leg would almost certainly constitute, without knowing anything more about the person's activities, a substantial impairment under s. 4(1)(a). However, the loss of a single finger or toe would be a different case. Such an injury would be a loss of body structure. But would it constitute a substantial impairment? In order to answer this question, the inquiry would have to go beyond simple medical description and take account of the whole person, including some of her activities. This, of course, opens the door to some of the evidence relevant to s. 4(1)(b) also being apposite to the s. 4(1)(a) inquiry.

[21] The case law reflects the above analysis. In Meyer v. Bright (1993), 1993 3389 (ON CA), 15 O.R. (3d) 129, [1993] O.J. No. 2446 (C.A.), leave to appeal to S.C.C. refused [1993] S.C.C.A. No. 540, 17 O.R. (3d) xvi, a five judge panel of this court considered the meaning of "serious impairment" in s. 266(1) of the Insurance Act, R.S.O. 1990, c. I.8. The court stated, 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.

[22] A similar approach has been taken by the courts in cases dealing with s. 4(1) of the ODSPA. In Gray, supra, McMurtry C.J.O. said, at para. 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.

[23] In a similar vein, McMurtry C.J.O. stated, at para. 8, that he was "in particular agreement with the following statement of [page 328] Lang J." in Ontario (Director, Disability Support Program) v. Gallier, 2000 49294 (ON SCDC), [2000] O.J. No. 4541 (Div. Ct.):

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".

[24] If the inquiry relating to "substantial impairment" under s. 4(1)(a) of the ODSPA must encompass "the particular injured person before the court" (Meyer v. Bright), "the varying circumstances of each individual case" (Gray), or "the applicant in the context of her own situation" (Gallier), it is inevitable that some of the analysis under s. 4(1)(a) will include some of the factors in s. 4(1)(b). It will be impossible, in some cases, to be faithful to the person- specific consideration of substantial impairment mandated by Gray and other cases without examining such matters as personal care and the person's functioning in the community and the workplace. Indeed, this precise point was recognized and affirmed in another case dealing with the interpretation of s. 4(1)(a), McLaughlin v. Ontario (Director, Disability Support Program), [2002] O.J. No. 1740 (Div. Ct.), wherein Blair J. stated, at para. 2:

Ms. McCormick also argued that the Tribunal erred by imputing the substantial-restriction-of-daily-activities concept of s. 4(1)(b) into its "substantial impairment" consideration. We do not think it was an error on the part of the Tribunal to take into account factors relating to the appellant's physical impairment that might also be pertinent to a s. 4(1)(b) analysis when they are also pertinent to the substantial impairment determination.

In my view, this is precisely right.

[25] In summary, s. 4(1) of the ODSPA presents three questions -- substantial impairment, substantial restriction in certain activities, and verification. These are separate questions that require separate analysis and answers. The onus is on the claimant to establish all three factors. Accordingly, if the Tribunal concludes that the claimant has failed to establish one of the factors, it need not deal with the other factors. Finally, in some cases (but not all) there can be an overlap in the evidence relevant to the factors in paras. (a) and (b) of s. 4(1). That is because although the concept of impairment is anchored in medicine, 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.

[26] The Divisional Court conflated or collapsed the analysis required under ss. 4(1)(a) and (b) into a single inquiry. It erred in so doing. [page 329]

[27] The Tribunal, on the other hand, framed its analysis in a proper fashion. With respect to s. 4(1)(a), it focused on the medical evidence relating to Ms. Crane's impairment, including the report and extensive clinical notes of the family doctor, and reports by a rheumatologist and a psychiatrist.

[28] However, the Tribunal's attention went beyond the medical evidence. Faithful to the decision of this court in Gray, which it cited, the Tribunal considered the medical evidence in the context of the factors set out in s. 4(1)(b), namely, Ms. Crane's ability to function in the community and the workplace.

[29] Only after completing its consideration of the medical evidence and the evidence relating to Ms. Crane's ability to function in the community and the workplace did the Tribunal reach its conclusion on the issue of whether Ms. Crane had a substantial impairment within the meaning of s. 4(1)(a) of the ODSPA. In approaching this issue in the fashion it did, the Tribunal properly applied the statutory words to the specific circumstances of Ms. Crane's case, as required by Gray, Gallier and McLaughlin.

(2) The evidence issue

[30] The majority of the Divisional Court was highly critical of the Tribunal's treatment of the evidence in the case. The majority identified two "critical findings of fact" that it identified as clearly wrong and constituting palpable and overriding error.

[31] The majority set out the first error in this fashion [at para. 35]:

Of the numerous medical reports and records that were tendered in evidence by the appellant's counsel, it appears that the Tribunal specifically addressed and quoted from only one report of one of the medical persons whose evidence was before the Tribunal. That quotation was from a report of Dr. Jennifer Laski, the appellant's family doctor who had examined the appellant numerous times between September 1999, and February 2002.

[32] This statement is simply wrong. In its extensive review of the medical information relating to Ms. Crane, the Tribunal referred to not only Dr. Laski's files and reports, but also the report of Dr. D.M. Kanji, a rheumatologist, and Dr. M. Krishna, a psychiatrist. Indeed, the only medical report in the record to which the Tribunal did not refer was one relating to Ms. Crane's allergies in 1994 -- ten years before the hearing.

[33] The majority identified the Tribunal's second error as its finding that Ms. Crane had been working for approximately three years on a part-time basis whereas in fact she had been working at a convenience store for only four months prior to the hearing. I agree with the majority's analysis on this point. [page 330]

[34] The Tribunal referred to the duration of Ms. Crane's employment twice in its reasons. Under the heading FACTUAL BACKGROUND, the Tribunal said:

[Ms. Crane] now works at a convenience store two days a week since October 2003. Previously she worked for two and one half years housekeeping at a motel but quit because it was too physical and she was not able to do all the work.

The second reference occurred later, under the heading REASONS FOR DECISION. The Tribunal referred to the handwritten notation in Dr. Laski's report concerning Ms. Crane's employment in a convenience store and stated that this was confirmed by Ms. Crane's testimony that she had been working "for approximately the past three years on a part time basis".

[35] Both of these references make it clear that the Tribunal's view of the evidence was that Ms. Crane had been working continuously for three years prior to the hearing. This was an error. The record, including the Tribunal's handwritten notes of the evidence at the hearing, establishes that Ms. Crane had been working at the convenience store on a part-time basis for four months immediately prior to the hearing. However, her previous part-time position as a housekeeper at a local motel had ended two-and-a-half years ago. In short, Ms. Crane's period of continuous employment prior to the hearing was four months, not three years.

[36] In my view, the majority was correct to conclude that this misapprehension of the evidence amounted to a palpable and overriding error. The Tribunal made the same error twice, so there can be no suggestion that the error was merely a typographical error. The error relates to a crucial part of the evidence, namely, Ms. Crane's work history. The error is a substantial one -- there is a large difference between four months and three years continuous part-time work. Finally, as McMurtry C.J.O. emphasized in Gray, the ODSPA is remedial legislation. It follows from these points that Ms. Crane is entitled to have her claim assessed on the basis of an accurate understanding by the Tribunal of the crucial aspects of her current situation, including her employment history.

[37] I address, parenthetically, one final issue. The majority of the Divisional Court also accused the Tribunal of attempting to thwart appellate review by omitting to give reasons on essential matters. This criticism is entirely misplaced. The Tribunal wrote extensive reasons in a timely fashion. It grappled with all of the relevant evidence. [page 331]

E. Disposition

[38] I would dismiss the appeal and order a new hearing before a different member of the Tribunal. The parties agree that there should be no costs in this appeal; I would so order.

Appeal dismissed.