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

Crane v. Director of the Ontario Disability Support Program of the Ministry of Community and Social Services [Indexed as: Crane v. Ontario (Director, Disability Support Program)]

75 O.R. (3d) 282

[2005] O.J. No. 2441

Court File No. DV-657-04

Ontario Superior Court of Justice

Divisional Court

Gravely, Matlow and Kiteley JJ.

May 11, 2005

Social assistance -- Entitlement -- Social Benefits Tribunal upholding finding that claimant was not "person with a disability" as defined in s. 4(1) of Ontario Disability Support Program Act -- Tribunal erring in its application of s. 4(1) of Act and in its appreciation of evidence -- Claimant's appeal allowed -- Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, s. 4(1).

The appellant suffered from fibromyalgia, asthma, anxiety/ depression and headaches. The Director of the Ontario Disability Support Program determined that the appellant was not a "person with a disability" within the meaning of s. 4(1) of the Ontario Disability Support Program Act, 1997 as she did not have a substantial physical or mental impairment. The Social Benefits Tribunal upheld that decision. The appellant appealed.

Held, the appeal should be allowed.

Matlow J. (Kiteley J. concurring): Section 4(1) of the Act provides that 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 determination of a person's claim for benefits cannot stop after an analysis of subparagraph (a) alone. The Tribunal was required to engage in a careful analysis of all three subparagraphs of the subsection and to focus on what each subparagraph added to the increasing list of componen ts of the definition. Instead, the Tribunal found that the appellant failed the first test of the definition in that she did not have a substantial physical or mental impairment and that it was unnecessary to consider the rest of s. 4(1). If it had interpreted and applied s. 4(1) correctly, it would have focused its analysis on whether the appellant's impairments resulted in a substantial restriction in one or more of the activities of daily living specified in subpara. (b); and then determined whether or not her impairments were substantial as required by subparagraph (a). By interpreting and applying s. 4(1) as it did, the Tribunal rendered the statutory definition of "person with a disability" meaningless and absurd. The Tribunal's failure to carry out its function correctly was further revealed by its cursory review of the evidence, by its failure to examine those parts of the evidence that were critical to the proper determination of the appeal, and by the glaring errors in its interp retation of parts of the evidence that may have been critical to the result. Each of the Tribunal's errors in interpreting and applying the definition of "person with a disability" in s. 4(1) of the Act and in comprehending and applying the evidence constituted an error of law which failed to meet the requisite standard of review, namely, correctness. [page283]

Per Gravely J. (dissenting): The Tribunal was not required to consider and make findings under s. 4(1)(b) of the Act as well as under s. 4(1)(a). A person may be found to be a "person with a disability" only if he or she satisfies the requirements of all parts of s. 4(1). Having made the finding it did under s. 4(1)(a), it was unnecessary for the Tribunal to go further and consider s. 4(1)(b) and s. 4(1)(c). The Tribunal adequately considered both the individual and cumulative effects of the various impairments in coming to its decision. None of the Tribunal's evidentiary errors were of such a palpable or overriding nature as to constitute an error of law.

APPEAL from a decision of the Social Benefits Tribunal.

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.), apld Other cases referred to McLaughlin v. Ontario (Director, Disability Support Program), [2002] O.J. No. 1740 (Div. Ct.); Tranchemontagne v. Ontario (Director, Disability Support Program) (2004), 2004 41165 (ON CA), 72 O.R. (3d) 457, [2004] O.J. No. 3724, 190 O.A.C. 108, 244 D.L.R. (4th) 118 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, s. 253 [as am.] Family Benefits Act, R.S.O. 1990, c. F.2 Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, ss. 3(1), 4(1), 31 Rules and regulations referred to O. Reg. 222/98, s. 67

Grace Kurke, for appellant. Geoffrey Baker, for respondent.

[1] MATLOW J. (KITELEY J. concurring): -- This appeal is allowed. An order will issue setting aside the Decision of the Social Benefits Tribunal and remitting the appeal heard by the Tribunal for a new hearing before a different member in accordance with these reasons. If costs are to be sought, I would invite counsel to exchange and submit written submissions regarding costs, in triplicate, to the president of this panel by delivering them to the registrar of this court at Sudbury within 30 days.

[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 s. 4(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B 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. [page284]

[3] In my review of the Tribunal's Decision, it will be useful to have reference to O. Reg. 222/98, s. 67 made under the Act which reads, in part, as follows:

67(1) The Tribunal shall deliver a written decision to the parties to an appeal within 60 days after it last receives evidence or submissions on the appeal.

(2) The Tribunal's findings of fact shall be based exclusively on evidence admissible and facts of which notice may be taken under sections 15, 15.1, 15.2 and 16 of the Statutory Powers Procedure Act.

(3) The Tribunal's decision shall include the principal findings of fact and its conclusions based on those findings.

[4] The Tribunal correctly characterized the issue before it, in general terms, at p. 2 of its Decision as follows:

The Appellant is a thirty-year-old female with a verified impairment of fibromyalgia, asthma, anxiety/depression and headaches.

The Director determined that the Appellant was not a person with a disability within the meaning of Section 4 (1) of the Ontario Disability Support Program Act, 1997. The reason being that the Appellant did not have a substantial physical or mental impairment as defined in Section 4(1) of the Ontario Disability Support Program Act, 1997.

The issue to be determined is whether the Director's determination that the Appellant is not a person with a disability within the meaning of Section 4(1) of the Ontario Disability Support Program Act, 1997, is wrong.

[5] The Tribunal then set out the statutory provision which it was required to interpret and apply, which I repeat here:

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.

[6] It is evident from the wording of s. 4(1) that the statutory definition of "person with a disability" is not set out with the level of clarity that is desirable in a social benefits statute. It is not, in my respectful view, a model of statutory drafting. It is, nevertheless, capable of a reasonable interpretation which gives effect to the words used in accordance with their respective correct, ordinary and usual meaning. As I will endeavour to demonstrate, the definition contains many components which are [page285] set out cumulatively in the three subparagraphs of s. 4(1), all of which must be proved by a person claiming to be entitled to receive benefits.

[7] I will now explain the definition in greater detail and then consider the manner in which the Tribunal considered and misapplied it.

[8] Subparagraph 4(1)(a) first requires that a person claiming to fit within the definition have "a substantial physical or mental impairment". It does not, at this point, give any further description of the requisite impairment other than that it must be substantial and physical or mental.

[9] In the context of medical conditions and injuries suffered by persons, an impairment is generally defined in most English language dictionaries, and ordinarily used, as a damage to or weakness of some ability. It is instructive to observe that this is recognized, in another context, in s. 253 of the Criminal Code, R.S.C. 1985, c. C-46, the "impaired driving" section, where that offence is described as follows:

253. Every one commits an offence who operates a motor vehicle. . . .

(a) while the person's ability to operate the vehicle . . . is impaired by alcohol or a drug;

[10] Accordingly, it makes no sense to refer to an impairment without relating it to a specific ability which is affected by a condition or injury. For example, it would make no sense to say that a person's hand is impaired. A hand can never properly be said to be impaired; only the ability to use a hand can be impaired. Therefore, as an example, it is only if a person's hand injury is such that it damages or weakens that person's ability to hold a pen and write that one can properly say that that person's ability to write is impaired.

[11] It is important to bear in mind that, even though they may be related, an impairment is not the same thing as a condition or an injury or a symptom and these words cannot ever properly be used interchangeably. Although a condition, injury or symptom can cause a person to have impairments with respect to certain specific abilities, that person might still be able to carry on other activities perfectly normally without any impairments whatsoever. As well, a person might experience some very serious medical event such as, for example, a heart attack or a serious fracture and that person might still be able to live normally after a period of recovery and resume all of her normal activities without any of her abilities having become impaired.

[12] A fair reading of the language used in the Decision of the Tribunal reveals that the Tribunal misunderstood the meaning of [page286] many of these important words and, as a result, was confused about how to interpret and apply s. 4(1). The following are some examples:

(a) page 1 -- "reports on a new impairment of carpal tunnel";

(b) page 1 -- "whether these impairments relate to the Appellant's condition ...";

(c) page 1 -- "a psychiatric report ... relating to the Appellant's emotional impairment";

(d) page 1 -- "No previous reference has been made to this impairment ... (carpel tunnel syndrome)";

(e) page 1 -- "Therefore, the impairments with the exception of carpel tunnel ...";

(f) page 2 -- "The Appellant is a thirty-year-old female with a verified impairment of fibromyalgia, asthma, anxiety/ depression and headaches.";

(g) page 4 -- "The Tribunal is satisfied that the Appellant has established that her impairments are continuous ... year. The Appellant's family physician has verified the existence and likely duration of the Appellant's impairments". (The Tribunal does not say what these "impairments" are and does not distinguish them from "condition, injury, etc.);

(h) page 5 -- "The Appellant's legal counsel argued that the Appellant's impairments were getting worse, however, when questioned if her pain was worse fifteen months ago, the Appellant testified that only her shin and hands were. This would suggest to the Tribunal Member that there has been some improvement in the Appellant's impairments rather than worsening."

[13] Accordingly, starting with subparagraph (a), the definition contemplates that some ability must be impaired and that the impairment be "continuous or recurrent and expected to last one year or more".

[14] The use of substantial in subparagraph (a) requires some further analysis to determine its intended meaning in this context. I begin by observing that substantial is an adjective and, from its position in the sentence, it modifies, or describes, impairment. This tells us that the impairment must be large rather than minimal. Accordingly, subparagraph (a) requires proof that the person: [page287]

(a) has a large damage or weakness to some unspecified ability of hers that requires the use of her physical or mental powers; and

(b) that it is continuous or recurrent and expected to last one year or more.

[15] I now turn to subparagraph (b) because that is where the Act specifies the kind of impairment that must be proved. Without this subparagraph, subparagraph (a) is virtually meaningless. Subparagraph (b) requires proof that:

(a) the impairment has an effect on the person's ability to attend to her personal care, function in the community and function in the workplace; and

(b) the direct and cumulative effect of the impairment results in a substantial restriction in one or more of these activities of daily living.

We now have the necessary information that was missing in subparagraph (a) and it now becomes possible to understand and apply the total definition of person with a disability.

[16] Taking subparagraphs (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.

[17] Finally, subparagraph 4(1)(c) adds a further requirement that

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.

This requirement further supports my interpretation of s. 4(1) and emphasizes the importance of the person's activities of daily living as a component of the definition of person with a disability.

[18] Throughout this analysis one can see how each subparagraph clarifies and adds to what must be proved before one can qualify as a person with a disability. Accordingly, to apply s. 4(1) to a body of evidence under consideration, as the Tribunal attempted to do, required the Tribunal to engage in a careful analysis of all three subparagraphs of s. 4(1) of the Act and to focus on what each subparagraph added to the increasing list of components of the definition.

[19] I now turn to how the Tribunal considered and applied s. 4(1) and how, in doing so, it fell into reversible error.

[20] The Tribunal commenced its analysis at p. 4 of its Decision as follows: [page288]

The Tribunal is satisfied that the Appellant has established that her impairments are continuous or recurrent and expected to last more than one year. The Appellant's family physician, which is a person with the prescribed qualifications, has verified the existence and likely duration of the Appellant's impairments.

The Tribunal finds that the evidence provided is not sufficient to meet "substantial impairment" under s. 4 (1) of the Appellant's impairments.

[21] Later, at p. 5 of its Decision, the Tribunal had stated as follows:

Although the Appellant's ability to function may be compromised in some manner, there is insufficient evidence provided from the available documentation and the Appellant's testimony to conclude that the impairments substantially impact on her ability to perform her activities of daily living at an adequate level.

(Emphasis added)

[22] The concept of adequate level has no relevance to the concept of substantial impairment as contemplated by s. 4(1). A person can have one or more of her abilities substantially impaired (one of the components of the s. 4(1) definition) and still be able to perform her activities of daily living at an adequate level. On the other hand, what is adequate in the circumstances depends on the subjective view of the person involved or, as here, on the subjective and arbitrary view of the Tribunal and imports no objective standard or test into the determination process.

[23] The Tribunal went on at p. 5 to discuss some of the appellant's physical and mental problems and a small portion of the medical evidence supporting the appellant's claim for benefits. Then, at the end of the discussion, the Tribunal set out its principal findings of fact and its conclusions based on those findings as it was required to do by O. Reg. 222/98, s. 67 set out above in para. 3 as follows:

After final consideration of all of the evidence and the Grey decision, the Tribunal has determined that the above impairments, separately or cumulatively, are not considered "substantial physical or mental impairments". More particularly, the Tribunal has not been persuaded on a balance of probabilities that the Appellant's verified impairments met the level of substantial at the time of the Director's decision.

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, [page289] the Tribunal will not consider the other tests contained in the legislation. The appeal is denied.

[24] What the Tribunal appears to have done, as revealed by its Decision, is as follows:

(a) it held that the appellant had satisfied the requirements of subparagraph (a), including impairments that are continuous or recurrent and expected to last more than one year, with the exception of the requirement to prove an impairment that was substantial;

(b) it held that the appellant had satisfied the requirements of subparagraph (c) by having her family physician verify the existence of her impairments;

(c) it held that because the appellant had failed to prove the substantial component of subparagraph (a), it would not consider the other tests in the legislation;

(d) it dismissed her appeal.

[25] By failing to address the requirement of subparagraph (b) and its impact on the meaning of substantial impairment, the Tribunal erred in its interpretation and application of s. 4(1). As demonstrated above, the Tribunal was required to consider the entirety of s. 4(1) before making its determination of the appellant's appeal.

[26] If it had interpreted and applied s. 4(1) correctly, it would have:

(a) focused its analysis on whether the appellant's impairments, which it accepted as proven, resulted in a substantial restriction in one or more of the activities of daily living specified in subparagraph (b); and

(b) then determined whether or not her impairments were substantial as required by subparagraph (a).

[27] Its Decision, including the portions in which it was required to set out its principal findings of fact and conclusions, read as a whole, reveals that it did not do this.

[28] By interpreting and applying s. 4(1) as it did, it rendered the statutory definition of "person with a disability" meaningless and absurd.

[29] In Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531 (C.A.) (see p. 5 of the Tribunal's Decision), McMurtry C.J.O., in commenting on [page290] the Act generally and on the interpretation of "substantial" in s. 4(1)(a) in particular, stated as follows:

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.

(Emphasis in original)

[30] Although it may be that the Tribunal attempted to comply with this guidance, it is my respectful view that it failed to do so.

[31] The failure of the Tribunal to carry out its function correctly is further revealed by its cursory review of the evidence, by its failure to examine those parts of the evidence that were critical to the proper determination of the appeal, and by making glaring errors in its interpretation of parts of the evidence that may have been critical to the result.

[32] Some of the critical evidence relating to the appellant's disability and, therefore, being relevant to the issue of whether her impairments were substantial, are set out in paras. 16 to 26 of the appellant's factum which I set out as follows:

16. It is submitted that the evidence showed the Appellant to suffer from substantial physical and mental impairments, and that she has substantial restrictions in her ability to function in a workplace and the community.

17. The medical evidence before the Tribunal consisted of five reports and various other medical records:

-- Health Status Report, Dr. Laski (July 8, 2002)

-- Activities of Daily Living Report, Dr. Laski (July 8, 2002)

-- Narrative Report, Dr. Laski (June 16, 2003)

-- Clinical Notes, Dr. Laski (1999 to 2003)

-- Report and Allergy Tests, Dr. Margetts (February 25, 1994)

-- Narrative Report, Dr. Krishna (October 23, 2003)

-- Narrative Report, Dr. Kanji (January 7, 2004)

18. In the Health Status Report, Dr. Laski verified that the Appellant has fibromyalgia and that this condition is continuous and expected to last more than one year. She listed as impairments "fatigue, generalized myalgia, irritability, emotional lability".

Health Status Report, Record of Proceedings, p. 45 and 46 [page291]

19. In that document, Dr. Laski stated that there had been no change in the Appellant's condition over a period of time, nor that any change was expected. She also stated that the Appellant "should have intensive counseling but this is not possible due to geographic isolation".

Health Status Report, Record of Proceedings, p. 47

20. Dr. Laski completed the Intellectual and Emotional Wellness Scale which forms part of the Health Status Report. She verified that the Appellant suffers from moderate symptoms in five areas including emotion, impulse control, lack of insight, judgement and motivation. In three other categories, she verified mild symptoms in the areas of intellectual function, learning and memory.

Health Status Report, Record of Proceedings, p. 49

21. On the Activities of Daily Living report, Dr. Laski provided a similar description of the Appellant's physical impairments and completed the required impact rating scale for activities of daily living. She noted:

-- Moderately impaired physical strength, stamina and tolerance to perform daily activities

-- Moderately impaired ability to participate in sustained activity connected with occupational activities

-- Moderately impaired ability to do laundry, housekeeping and meal preparation

-- Moderately impaired ability to participate in community activities

Activities of Daily Living Report, Record of Proceedings, pp. 40, 42, 43

22. In her June 16, 2003 narrative report, Dr. Laski confirmed that the Appellant had been her patient since September 22, 1999. She stated:

"In reviewing the old notes from her previous physician, Mrs. Cranes [sic] emotional difficulties appear back in 1988. Despite the fact that she has now been diagnosed with fibromyalgia, which in itself probably renders her unemployable, I believe that her emotional lability[sic], depression and anxiety absolutely make her unemployable. Given the long documented psychiatric problem it is extremely unlikely that she will ever be fit for the work place. Her difficulties will inevitably lead to a lack of success in any employment even if it is attempted and I think at this stage just for her to manage her own ADL's is quite enough for her to deal with"

Report of Dr. Laski, Record of Proceedings, p. 56

23. The clinical notes of Dr. Laski outline details of 28 visits between September 1999 until February of 2003, a period of 42 months. The notes detail ongoing complaints about depression, anxiety, inability to sleep, pain, headaches, breathing problems and a self-harm incident in May of 2001.

Clinical Notes, Record of Proceedings, pp. 57-69

24. The appellant had been referred to a psychiatrist in 2003. She testified at the hearing that she had waited eight months for an appointment. She has a history of attempted suicide and has attempted to harm herself several times. She was physically, emotionally and sexually abused by her [page292] stepfather. She was in foster care at the age of 14 through the Children's Aid Society.

Report of Dr. Krishna, Record of Proceedings, pp. 77-79

25. In his report of October 23, 2003, Dr. Krishna verifies a diagnosis of dysthymic disorder and confirms a global assessment of functioning scale of 45-50, representing a serious impairment in social, occupational or school functioning.

Report of Dr. Koka, Record of Proceedings, pp. 106-107

DSM-IV-TR Global Assessment of Functioning (GAF) Scale, Schedule "C"

26. In a report dated January 7, 2004, Dr. Kanji, rheumatologist, listed the following complaints:

"She presented with complaints of low back pain, which she has had for a few years, and pain in her hands for two years. Her problem started with pain in the lower back and, at time, this radiates down the left leg to the knee. Lower back pain is aggravated with standing and vacuuming and nothing seems to relieve it. There is no disturbance of bowel problems or any urinary problems. She has had numbness of her hands. She experiences pain in the hands, which is felt diffusely. She informed me that she cannot peel potatoes and cannot open cans and her husband has to do it. Right wrist has been painful for more than five years. Left wrist has been painful for six months. There was questionable swelling associated with it. Right shoulder has been painful off and on for two years. Left shoulder is not too bad. She denied any history of neck pain or any feet pain.

Her hips have not been painful. However, she has a history of an injury to her right knee when she was in grade 8. Her right knee was associated with swelling. Her left knee has been painful for five years, but there has been no swelling.

She gave a history of morning stiffness for 20 minutes.

On systemic questioning, she has no energy and she sleeps poorly.

She was seen in follow-up, at which time her major complaint was pain in the shoulders, right worse than left.

She gave a history of morning stiffness for half an hour."

Report of Dr. Kanji, Record of Proceedings, pp. 80-82

[33] The Tribunal's Decision, including its outright rejection of the requirement that it need not consider more than subparagraph (a), satisfies me that it improperly ignored much of this evidence. [page293]

[34] In doing so, it once more failed to fulfill the requirement also referred to in Gray by McMurtry C.J.O. at para. 24 as follows:

It was incumbent upon the Tribunal to make findings of fact concerning the appellant's testimony and the reports prepared by her doctor.

I would add that it is implicit in the words of the Chief Justice that the findings must be based on an accurate understanding and appreciation of the evidence.

[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. In that report, Dr. Laski stated, in part, as follows:

In reviewing the old notes from her previous physician, Mrs. Cranes emotional difficulties appear back in 1998. Despite the fact that she has now been diagnosed with fibromyalgia, which in itself probably renders her unemployable, I believe that her emotional lability [sic], depression and anxiety absolutely make her unemployable. Given the long documented psychiatric problem it is extremely unlikely that she will ever be fit for the work place. Her difficulties will inevitably lead to a lack of success in any employment even if it is attempted and I think at this stage just for her to manage her own ADL's is quite enough for her to deal with (emphasis added).

In short, Mrs. Crane will never be suitable for employment.

Attached to Dr. Laski's report were copies of her clinical charts documenting her treatment of the appellant.

[36] Dr. Laski's report, if its contents had been accepted by the Tribunal, may well have been sufficient without more to establish the appellant's entitlement to benefits. However, the Tribunal, presumably as a reason for rejecting the report, went on to comment:

In a report from the family doctor dated June 16, 2003, she states that the Appellant is unemployable due to her emotional ability depression and anxiety. However, at the bottom of the report she added a hand written note that she was not aware at the time of the report that the Appellant was working. This was confirmed in the Appellant's testimony that she had been working for approximately the past three years on a part time basis.

(Emphasis added to highlight misquote)

[37] However, what the Tribunal said was not all that Dr. Laski wrote in her note which appears at p. 56 of the Record of Proceedings. The entirety of her note stated the following: [page294]

NB it has come to my attention since writing this letter that Mrs. Crane is working in a convenience store.

[38] In my view, the reasonable and logical conclusion is that the appellant's job in the convenience store did not change the doctor's opinion that the appellant was unable to function in a workplace because of her various medical conditions. This is consistent with Dr. Laski's comment that the appellant's difficulties will inevitably lead to a lack of success in any employment even if it is attempted.

[39] In addition, in reciting the appellant's evidence regarding her employment that she had been working for approximately the past three years on a part-time basis, the Tribunal misunderstood and misstated the appellant's evidence. The appellant did not testify that she had been working for the past three years. Rather, the evidence was that she had started working part-time in a convenience store in October 2003, approximately three months prior to the hearing before the Tribunal in March 2004.

[40] Counsel for the appellant submitted that the Tribunal should not be permitted to thwart appellate review by omitting to give reasons on essential matters. This submission is set out in paras. 63 to 65 of the appellant's factum which I set out as follows:

63. The Tribunal has an obligation to provide written reasons. Specifically, it is required by regulation to include in a decision its "principal findings of fact and its conclusions based on those findings".

Regulations, s. 67(3)

64. The Tribunal's duty to provide reasons is only fulfilled if the reasons provided are adequate. Merely reciting the submissions and evidence of the parties and stating a conclusion is not enough. The Tribunal must set out its reasoning process. The Tribunal need not use specific wording in coming to its conclusions, but it must be "apparent from the decision read as a whole that the Tribunal considered all relevant principles and applied them to its factual determinations". Further, it must be clear what relevant evidence the Tribunal accepted and what it rejected. Where the only implication that can be drawn is that the Tribunal has made a particular finding, that finding may sometimes be inferred, but express findings as to substantiality are always preferable. The Tribunal should not be permitted to thwart appellate review by omitting to give reasons on essential matters.

Gray, supra, at paras. 18-24

Gallier, supra, at paras. 1-2

65. By not dealing with the cumulative import of the medical information, the cumulative impact of the Appellant's medical conditions and restrictions, the medical opinions on record, and the question of whether there is a [page295] restriction in a prescribed activity of daily living, the Tribunal has failed to provide adequate reasons for rejecting the clear preponderance of evidence in favour of the appellant.

I agree with and adopt this submission.

[41] I am satisfied that each of the errors of the Tribunal in interpreting and applying the definition of person with a disability in s. 4(1) of the Act and in comprehending and applying the evidence referred to in this endorsement constitutes an error of law which fails to meet the requisite standard of review, namely, correctness. As well, I am satisfied that they fall within the statutory limits of this appeal and, in the circumstances, require this court to interfere with the Decision of the Tribunal.

[1] GRAVELY J. (dissenting): -- The appellant, April Crane, applied for income support under the Ontario Disability Support Program Act, 1997, S.O. 1997 c. 25, Sch. B. The Director of the Ontario Disability Support Program found that she was not "a person with a disability" within the meaning of s. 4 of the Act. Ms. Crane appeals from the decision of the Social Benefits Tribunal which upheld the Director's decision. The Tribunal agreed with the Director that Ms. Crane had not established that she suffered from a substantial physical or mental impairment as required by cl. 4(1)(a) of the Act and therefore was ineligible for income support as "a person with a disability". The Tribunal refused to grant the appellant's request for a reconsideration hearing.

[2] She appeals to this court on the basis that the Tribunal erred in law by failing to apply the proper test to determine whether she is "a person with a disability": by misapprehending or failing to appreciate portions of the evidence; by reaching conclusions of fact that are not supported by the evidence; and by failing to make necessary findings of fact and provide adequate reasons.

[3] Under s. 31 of the Act, a decision of the Tribunal may be appealed to the Divisional Court on a question of law. The standard of review is "correctness".

[4] The appellant asks that the Decision of the Tribunal be set aside and she be declared eligible for income support.

[5] The Ontario Disability Support Program Act replaced the Family Benefits Act R.S.O. 1990, c. F.2 for persons with disabilities. It was intended to remove people with disabilities from the welfare system and provide help in overcoming barriers to seeking, obtaining and keeping employment [See Note 1 at the end of the document].

[6] Under s. 3(1), income support is provided to "a person with a disability". [page296]

[7] Section 4(1) 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.

[8] The Tribunal Member noted that the appellant had "a verified impairment of fibromyalgia, asthma, anxiety/depression and headaches", and found that the impairments were continuous or recurrent and expected to last more than one year, but that the evidence was not sufficient to establish substantial impairment under s. 4(1)(a).

[9] There seems to be some confusion at this point in the Reasons between the concept of impairment as opposed to illness or disease. The words are not synonymous. The threshold issue in deciding if a person has a disability is whether there is a physical or mental impairment of some nature. The focus is on impairment, not illness or disease although disease may lead to impairment. "Impairment" is a physical or mental defect at the level of a body system or organ, or, as defined by the World Health Organization, "any loss or abnormality of psychological, physiological or anatomical structure or function" [See Note 2 at the end of the document].

[10] If the person is found to have an impairment, then the inquiry turns to the degree of impairment, i.e., is it "substantial?" By that is meant an impairment that is of some importance or consequence. If so, then the issue is whether the substantial impairment is continuous or recurrent, and, finally, under s. 4(1)(a), whether it is expected to last one year or more.

[11] If the person qualifies under all parts of s. 4(1)(a), the focus shifts in s. 4(1)(b) to the effect of the impairment on the person's function in specified activities of daily living. Section 4(1)(c) then requires verification by a person with prescribed qualifications. [page297]

[12] It is to be noted that all the requirements of s. 4(1) must be satisfied before an applicant can be found to be "a person with a disability". Once a person has failed to establish any one of the requirements of s. 4(1), there is no need for further analysis.

[13] Having found Ms. Crane had successfully established that she had a physical or mental impairment that was continuous or recurrent and expected to last one year or more, the issue before us is whether the Tribunal Member was wrong as a matter of law when she found the evidence did not establish that the impairment was substantial.

[14] In Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, [2002] O.J. No. 1531 (C.A.), McMurtry C.J.O. at pp. 370-71 O.R. said that the Act "should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities", that the Act was intended "to provide assistance to persons with significant but not severe long-term functional barriers" and that the word "substantial" "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" (emphasis in original).

[15] After quoting the principles set out in the Gray case, the Tribunal Member analyzed the condition of the appellant in considerable detail. She reviewed the medical reports, the health status report, the activities of daily living report, the appellant's self-report and the evidence of the appellant who was represented by counsel at the hearing. She considered the background, age, education, employment and living circumstances of the appellant. She then analyzed each of the complaints of the appellant and how they affected her physical and mental functioning and concluded that, viewed individually and cumulatively, the various impairments experienced by the appellant were not substantial. The appellant having failed to meet the requirements of s. 4(1)(a), the Tribunal Member concluded that it was not necessary to consider "the other tests contained in the legislation".

[16] Counsel for the appellant suggests that the Reasons contain substantial errors in that:

-- The Tribunal Member considered facts that would have applied to s. 4(1)(b) in coming to her conclusion under s. 4(1)(a).

In my view, that was not an error. The facts were relevant to the s. 4(1)(a) analysis [See Note 3 at the end of the document]. [page298]

-- The Tribunal Member was required to consider and make findings not only under s. 4(1)(a) but also under s. 4(1) (b).

I disagree. A person may be found to be a person with a disability only if he or she satisfies the requirements of all parts of s. 4(1). Having made the finding she did under s. 4(1) (a), it was not necessary for the Member to go further and consider s. 4(1)(b) and s. 4(1)(c).

-- The Reasons did not indicate how the various disabilities interacted in order for the Tribunal Member to rule out a cumulative effect.

On viewing the Reasons in their entirety, I am satisfied that the Tribunal Member adequately considered both the individual and cumulative effects of the various impairments in coming to her decision.

-- The Tribunal Member was in error in some of her findings of fact, and in particular in noting that the appellant had been working part-time for the past three years.

The appeal is on a question of law only. None of the evidentiary errors were of such a palpable or overriding nature as to constitute an error in law.

[17] The Tribunal Member instructed herself correctly as to the principles of law to be applied as set out in the Gray case. While I have some concern as to the apparent conflation of the concepts of illness and impairment at the beginning of the Reasons, it is apparent when one reviews the Reasons as a whole, that when the Tribunal Member concluded that the appellant did not have a substantial impairment, she did so on the basis of function, not of presence or absence of illness, and in any event, she found on the preliminary issue in favour of the appellant.

[18] I would dismiss the appeal.

[19] I am advised that the respondent does not seek costs.

Appeal allowed. [page299]

Notes

Note 1: See analysis by Weiler J.A. in Tranchemontagne v. Ontario (Director, Disability Support Program) (2004), 2004 41165 (ON CA), 72 O.R. (3d) 457, [2004] O.J. No. 3724 (C.A.), at pp. 462-65 O.R.

Note 2: Stedman's Medical Dictionary, 26th ed. (Baltimore: Williams & Wilkins, 1995).

Note 3: McLaughlin v. Ontario (Director, Disability Support Program), [2002] O.J. No. 1740 (Div. Ct.).