CITATION: Torok v. Ministry of Community and Social Services Director, 2011 ONSC 7308
DIVISIONAL COURT FILE NO.: 260/10
DATE: 20111207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., JENNINGS AND SWINTON JJ.
BETWEEN:
RICHARD TOROK
Applicant
(Appellant)
– and –
MINISTRY OF COMMUNITY AND SOCIAL SERVICES DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
(Respondent in Appeal)
In Person
Michelle M. Schrieder, for the Respondent
HEARD at Toronto: December 8, 2011
SWINTON J. (orally)
[1] The appellant Richard Torok appeals from the decision of the Social Benefits Tribunal dated April 15, 2010, which dismissed his appeal for supplementary benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (the “Act”).
[2] An appeal lies to this Court only on a question of law (s.31(1) of the Act).
[3] The appellant sought benefits for medical transportation costs from November 2007. He had been awarded such costs in June 2006 for twelve months. The Director of the Ontario Disability Support Program (the “Director”) denied his request for those benefits from November 2007 because the Ministry had not received the necessary documentation, the “MSN” form, until May 2009. After that form was received, medical transportation benefits were again awarded beginning May 1, 2009.
[4] The appellant filed an affidavit with the Ministry, received by it on March 19, 2010, in which he stated that he had filed the necessary MSN form signed by his doctor on October 19, 2007. A copy of the form was attached. In his appeal to the Social Benefits Tribunal, the appellant also gave evidence that he filed this form in October 2007 (see the Tribunal notes).
[5] The Tribunal held, “The requests for transportation assistance were met within the legislation” and dismissed the appeal respecting transportation benefits. The Tribunal member made no reference to the appellant’s uncontradicted evidence that he had filed an MSN form in October 2007, and the member made no finding as to whether the Ministry had received a request for benefits in October 2007.
[6] In the circumstances, it is unavailable for the Ministry to argue that the Tribunal implicitly rejected the appellant’s evidence and found the form was not submitted.
[7] In our view, the Tribunal erred in law in failing to address the appellant’s evidence about the filing of the form in October 2007. On the uncontradicted evidence before the Tribunal, the appellant had provided the necessary information from his doctor to support his claim for medical transportation benefits in October 2007. Therefore, he was entitled to an allowance for such benefits.
[8] We are not in a position to determine the amount to which he was entitled. Therefore, in accordance with s.31(5)(d) of the Act, the appeal is allowed on this ground and the matter is referred back to the Director to determine the amount of benefits to which the appellant is entitled from November 1, 2007. In doing so, the Director shall consider the entitlement of the appellant for the period up to May 1, 2009, in view of the fact that the appellant was not given an opportunity to formally apply for those benefits if they would have expired in November 2008.
[9] The appellant also seeks to overturn the Tribunal’s finding that he was not entitled to the benefits sought for the cost of surgical supplies. The Tribunal heard the evidence and made findings of fact, concluding that these were not expenses for surgical supplies within the meaning of the regulation. As the appellant has not shown any error of law in this part of the Tribunal’s decision, we would not give effect to this ground of appeal.
SWINTON J.
THEN R.S.J.
JENNINGS J.
Date of Reasons for Judgment: December 7, 2011
Date of Release: December 28, 2011
CITATION: Torok v. Ministry of Community and Social Services Director, 2011 ONSC 7308
DIVISIONAL COURT FILE NO.: 260/10
DATE: 20111207
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN R.S.J., JENNINGS AND SWINTON JJ.
BETWEEN:
RICHARD TOROK
Applicant
(Appellant)
– and –
MINISTRY OF COMMUNITY AND SOCIAL SERVICES DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: December 7, 2011
Date of Release: December 28, 2011