Nelson v. Ontario (Attorney General), 2009 ONCA 741

CITATION: Nelson v. Ontario (Attorney General), 2009 ONCA 741

DATE: 20091026

DOCKET: C49881

COURT OF APPEAL FOR ONTARIO

Moldaver, Simmons and MacFarland JJ.A.

BETWEEN:

Christopher Bryan Nelson

Plaintiff (Appellant)

And

Ontario (Ministry of the Attorney General)/Director of the Ontario Disability Support Program Ministry of Community and Social Services

Defendant (Respondent)

Christopher Bryan Nelson in person

Edmund Huang and Kevin Hille, for the respondent

Heard: October 19, 2009

On appeal from the order of Justice Julianne A. Parfett of the Superior Court of Justice dated December 11, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals from the motion judge's order striking out his statement of claim as disclosing no cause of action. His main argument is that the motion judge erred in failing to appreciate that the ODSP's denial of benefits in the face of reasonably adequate medical evidence demonstrates either negligence or malfeasance in the form of a deliberate failure to follow legislated criteria.

[2] We do not accept this submission. Even assuming that a factual assertion that the ODSP denied benefits in the face of reasonably adequate medical evidence could give rise to an inference of either negligence or malfeasance, the appellant's statement of claim does not set out material facts capable of making out those assertions. The statement of claim contains no particulars of the appellant's medical condition; nor does it demonstrate how his medical condition satisfied the test for awarding benefits. Standing by itself, a determination of ineligibility for benefits does not establish negligence or misfeasance in public office.

[3] In our view, this is not a case for amendment. The March 2006 decision of the Social Benefits Tribunal, which the appellant filed in support of his position demonstrates that the Tribunal concluded that the appellant's oral evidence was critical to making an award.

[4] The appeal is therefore dismissed with costs to the respondent in the amount of $1,000 inclusive of disbursements and G.S.T.