COURT FILE NO.: 122/07
DATE: 20090302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JANET WILSON, SWINTON AND LOW JJ.
B E T W E E N:
JOHN JEMIOLO
Appellant
- and -
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
Jacqueline Esler for the Appellant
Cheryl Ellison for the Respondent
HEARD at Toronto: February 23, 2009
the court:
The Appeal
[1] The Appellant John Jemiolo appeals to the Divisional Court from the decision of the Social Benefits Tribunal (the Tribunal) dated October 23, 2006. The Tribunal upheld the decision of the Director of the Ontario Disability Support Program dated December 13, 2005 (the Director’s Decision) that the Appellant was not a “person with a disability” within the meaning of s. 4 of the Ontario Disability Support Program Act, 1997, Schedule B of the Social Assistance Reform Act, 1997, S.O. 1997, c. 25 (the ODSPA).
Jurisdiction and Standard of Review
[2] A decision of the Tribunal may be appealed to the Divisional Court on a question of law in accordance with s. 31(1) of the ODSPA. The Tribunal must be correct in both its interpretation of the law and in the manner in which it approaches the evidence (see Sampson v. Ontario (Director, Disability Support Program), [2002] O.J. No. 838 (Div.Ct.) at para. 6).
[3] The parties are in agreement that the standard of review of an appeal from a decision of the Tribunal on a question of law is correctness (see Ontario (Director, Disability Support Program) v. Gallier, 2000 49294 (ON SCDC), [2000] O.J. No. 4541 (Div. Ct.)).
The Issues
[4] The Appellant makes two arguments:
- First, the Appellant argues that the Tribunal applied the wrong legal test in determining whether the Appellant has a “substantial impairment” resulting in a “substantial restriction” in his activities of daily living within the meaning of s. 4(1)(a) and (b) of the ODSPA, and
- Second, the Appellant argues that the Tribunal failed to consider the medical reports of Dr. Long and Dr. Kirwin submitted after the date of the Director’s Decision but before the decision of the Tribunal.
Issue One – The Appropriate Legal Test
[5] Section 4(1) of the ODSPA defines a person with a disability as:
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] The Director concluded that in December 2005 the Appellant did not have a “substantial physical impairment” that resulted in a “substantial restriction of one or more of his activities of daily living.”
[7] The Tribunal was satisfied that the Appellant's impairments were, and were correctly held to be continuous or recurrent and expected to last one year or more. It then went on to consider whether the impairment was substantial.
[8] In reviewing the Director’s decision, the Tribunal applied a construction of the word "substantial" which embraces a broader segment of society for assistance than the predecessor legislation, providing support to persons with “significant but not severe long-term functional barriers” (see Gray v. Ontario (Director of Ontario Disability Support Program) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364 (C.A.) at para. 15). This was the correct construction of the word "substantial" and we find that the Tribunal did not err in law.
[9] The Appellant argues that the Tribunal failed to properly consider the appellant’s prior medical treatment, that it placed undue emphasis on the Appellant’s ability to perform volunteer work, that it failed to consider the indication of problems with respect to Activities of Daily Living (“ADL”) in the Health Status Report, and that it did not assess the meaning of substantial in the context of the Appellant and his circumstances.
[10] We disagree.
[11] The Tribunal considered the Appellant’s evidence and the medical reports. In considering whether or not the Appellant's impairment was substantial, his actual physical activities and capacities as at December 2005, including his volunteer work at a food bank, and the nature of the medical treatment he was taking are not irrelevant facts.
[12] Although the Tribunal does not make a specific finding with respect to assessing the meaning of substantial in the context of the Appellant, the Tribunal applied the correct legal test, and consideration of this factor is implicit in its decision.
[13] The Tribunal considered the medical evidence submitted with respect to the Appellant’s prior medical treatment relevant to his condition in December 2005. The Health Status Report completed by Dr. Long, the Appellant’s family doctor, dated May 20, 2005, outlines various left arm injuries but does not refer to any other medical difficulties. It is not necessary for the Tribunal to make reference to all aspects of the evidence in its reasons. However, in this case, the Tribunal did consider the ADL as a whole in coming to its conclusion.
[14] The medical report dated May 16, 2003 of Dr. Kirwin, physiatrist, submitted by the Appellant in his application before the Director was not current. That report is actually quite upbeat and positive, confirming improvements in many of the Appellant’s symptoms, and considering other treatment options, including cortisone shots. In its decision, the Tribunal notes that Dr. Kirwin’s report from May 2003 confirmed improvement in the Appellant’s conditions with only mild bilateral carpel tunnel syndrome. It was appropriate for the Tribunal to consider potential treatment alternatives mentioned in the report of Dr. Kirwin in assessing whether there was substantial impairment.
[15] With respect to Mr. Jemiolo’s capacity to work, Dr. Kirwin states in his May 2003 report:
Regarding return to work, if he could find some light duties with minimal demands for the left arm including minimal pushing, pulling or heavy lifting, he may commence in a trial of this duty.
[16] The Tribunal noted gaps in the medical evidence that the Appellant could have rectified. It states at page 3 of its reasons:
There was no written medical evidence of any further or alternative forms of therapy, nor subsequent orthopedic consultations to diagnose or treat the level of impairment for the appellant’s condition nor are there any other therapies being used or proposed to mitigate the condition. While these are not strictly required, they would be of assistance to assess the degree of impairment in a case such as this.
All these factors, when considered together, in the opinion of the Tribunal do not provide consistent indicators of a substantial level of impairment for this condition at the time of the Director’s decision in December 2005.
[17] The Appellant bears the onus of proving on a balance of probabilities that he is a person with a disability within the meaning of the legislation. In an appeal on a question of law, it is not the role of the Court to reconsider or to re-weigh the evidence, nor should the Court reconsider the conclusions the Tribunal reached with respect to the sufficiency or adequacy of the evidence. In Pitters v. Criminal Injuries Compensation Board, [1996] O.J. No. 4339 at paras. 18-29, the Divisional Court confirmed that “the sufficiency of the evidence, its adequacy or otherwise to sustain the standard of proof required of it is beyond appellate scrutiny.” In Canada (Director of Investigations and Research) v. Southam Inc., [1996] 1 S.C.J. No. 116 263 at para. 43, the Supreme Court of Canada held “the most that can be said as a matter of law is that the Tribunal should consider each factor but the according of weight to the factors should be left to the Tribunal.”
[18] In our view, the Tribunal applied the correct test in law when considering the meaning of “substantial physical impairment” resulting in a “substantial restriction.” We conclude that it committed no reversible error of law and that it is not our role to intervene with respect to the weighing of the evidence by the Tribunal.
Issue Two – Failure to Consider Relevant Evidence
[19] After the Director’s decision, the Appellant submitted updated medical reports for consideration by the Tribunal. Section 64(1) of O.Reg 222/98 describes when new medical evidence can be considered:
64(1) On an appeal to the Tribunal from a decision that a person is not a person with a disability, a report described in paragraph 5 of subsection 14(2) that was not provided to the Director before the decision was made shall be considered by the Tribunal if,
(a) it relates to the appellant’s condition at the effective date of the Director’s decision; and
(b) it is submitted to the Tribunal and the Director for a review by the Disability Adjudication Unit at least 30 days before the date of the hearing.
(emphasis added)
[20] The decision of the Divisional Court in Omar v. Ontario (Director, Disability Support Program), 2007 10211 (ON SCDC), [2007] O.J. No. 1216 (Div. Ct.) confirms at paragraphs 2 and 3 that new medical evidence must relate to the applicant’s condition at the time the Director’s decision was made, not afterwards:
[2] … while s.64(1)(a) requires the Tribunal to consider new medical evidence only if it relates to the appellant’s condition at the effective date of the Director’s decision.
[3] Pursuant to s.23(3) of the Act, an appeal to the Tribunal shall be conducted in accordance with the regulations. Pursuant to s.23(10), the onus is on the appellant to satisfy the Tribunal that the decision of the Director is wrong. If there is new medical evidence that relates to a new medical condition or an aggravation of an individual’s conditions since the Director’s decision, an applicant can reapply for Ontario Disability Support.
(emphasis added)
[21] The two supplementary medical reports submitted to the Tribunal are dated June 30 and August 20, 2006 some six to nine months after the Director’s decision.
[22] The reports are presumed to outline the Appellant’s condition at the date on which they were written unless there is specific indication to the contrary. The difficulty with the Appellant’s submission is that neither the report of Dr. Long dated June 30, 2006, nor the report of Dr. Kirwin dated August 20, 2006 confirm that the analysis contained in these reports relates to the period of time when the Director’s decision was made, that is, December 2005.
[23] The August 2006 report of Dr. Kirwin outlines a significant deterioration in the Appellant’s condition in the four months prior to the writing of the report. Dr. Kirwin’s conclusion with respect to the Appellant’s functional abilities as at August 2006, found at page 11 of his report, is as follows:
Mr. Jemiolo is limited by his left arm condition in particular he is unable to perform any activities requiring repetitive hand tasks, heavy lifting, pushing or pulling. His function in the work place is limited by these impairments . . .
Also function in the community such as lifting required for shopping for groceries is very limited because of his left arm complaints . . .
Any household activities . . . or self care requiring repetitive use of the left arm will also increase this left arm complaints. In particular he is slower in dressing and washing plus he is unable to cook and clean for himself . . .
[24] In his June 2006 report, Dr. Long clearly states that in his opinion:
Mr. Jemiolo has a substantial physical impairment which will last his entire life, certainly longer than 12 months and his [left] arm impairment will substantially limit his activities of daily living in activities in the workplace.
[25] Had the 2006 reports of Drs. Long and Kirwin expressed the opinion that the Appellant’s condition at the time of the Director’s decision was in accordance with their updated reports, and had the Tribunal failed to consider this important evidence, then the results of this appeal may well have been different.
[26] It is clear from the updated medical evidence that the Appellant’s condition has deteriorated. The Tribunal confirmed that the Appellant was entitled to reapply for benefits based upon the updated medical information. We note that he has taken steps to do so.
[27] We conclude that the Tribunal did not err in failing to take into account the medical reports of Dr. Long and Dr. Kirwin, dated in 2006, as it was not clear that these reports refer to the effective date of the Director’s decision as required by s. 64(1) of the ODSPA.
[28] For these reasons, the appeal is dismissed.
[29] Both parties confirm that they are not seeking any costs.
JANET WILSON J.
SWINTON J.
LOW J.
Date of Release:
COURT FILE NO.: 122/07
DATE: 20090302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JANET WILSON, SWINTON AND LOW JJ.
B E T W E E N:
JOHN JEMIOLO
Appellant
- and -
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
REASONS FOR JUDGMENT
BY THE COURT
Date of Release: