CITATION: Grima v. Director of the Ontario Disability Support Program., 2012 ONSC 5939
DIVISIONAL COURT FILE NO.: DC-11-093
DATE: 20121018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
TALIANO, McCARTNEY and GORDON JJ.
BETWEEN:
ANTHONY GRIMA
J. Lepiten, for the Appellant
Appellant
- and -
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES
Respondent
M. Singh, for the Respondent
S. Buchanan, for the Social Benefits Tribunal
HEARD: October 17, 2012 (Brampton)
BY THE COURT
ENDORSEMENT
The Appeal
[1] The Appellant appeals from a decision of the Social Benefits Tribunal, which upheld the decision of the Director of the Ontario Disability Support Program that the Appellant was not a person with a disability as defined in section 4 of the Disability Support Program Act, 1997.
[2] An appeal lies from the Tribunal only on issues of law. Accordingly, the standard of review on an appeal from a decision of the Tribunal is correctness.
[3] The Appellant’s argument focussed largely on the Tribunal’s finding with respect to the Appellant’s depression. In that regard, the Tribunal found as follows:
The Appellant’s depression was described as “episodic” on the HSR by Dr. T. No referral for psychotherapy has been considered necessary, and the Appellant does not take the full dosage of his prescribed medication remarking that his depression comes and goes.
[4] The Appellant takes two issues with respect to this finding. First, it was argued that the Tribunal made a palpable and overriding error in determining that the Appellant does not take the full dosage of his medicine. However, the information relied upon to support this position was the testimony of the Appellant. According to the decision of the Tribunal, he testified that his prescription was for Wellbutrin to be taken three times per day, but that he took it once or twice a day. He was questioned on why he did not take the recommended dose and he gave an explanation. Although there was other evidence before the Tribunal from which it could be determined that the prescription was to be taken twice per day, it was entitled to make the finding it did based upon the evidence of the Appellant. The probative value in the evidence was that he was not taking the recommended dosage, and this he admitted.
[5] The second issue taken by the Appellant was that the Tribunal’s description of his depression as “sporadic” inferred the Tribunal’s requirement that his impairment be continuous when section 4 of the Act clearly provides that a qualifying disability can be one which is recurrent. By effectively requiring the disability to be continuous, the Tribunal is said to have misapplied the law. We are unable to agree. The description of the Appellant’s disability as “sporadic” was made in the context of the Tribunal’s explanation of why in the circumstances of this case it was not substantial. Accordingly, the Tribunal was not saying that his disability had to be continuous – only that in this case it was sporadic, and this was one factor it considered in determining that the impairment was not substantial.
[6] Lastly, the Appellant argued that the Tribunal disregarded, misapprehended or failed to give sufficient weight to the evidence. From our reading of the Tribunal’s decision, it considered all of the evidence before it as a whole and determined that the required definition was not met. Although we can understand the Appellant’s unhappiness with the decision there was no error of law and no palpable and overriding error of fact.
[7] It follows that the appeal is dismissed. We are grateful to both counsel for their able submissions.
Taliano J.
McCartney J.
Gordon J.
Released: October 18, 2012
CITATION: Grima v. Director of the Ontario Disability Support Program., 2012 ONSC 5939
DIVISIONAL COURT FILE NO.: DC-11-093
DATE: 20121018
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
TALIANO, McCARTNEY and GORDON JJ.
BETWEEN:
ANTHONY GRIMA
Appellant
- and –
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES
Respondent
ENDORSEMENT
By the Court
Released: October 18, 2012