CITATION: Fluxgold v. Ontario (Disability and Support Program), 2012 ONSC 6149
COURT FILE NO.: 270-11
DATE: 20121030
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: Fluxgold v. Director of THE Ontario Disability Support Program of the Ministry of Community and Social Services
BEFORE: Justices Pardu, Lax and J. Mackinnon
COUNSEL: Claudia Serraino, for the Appellant Michelle M. Schrieder, for the Respondent
HEARD: October 29, 2012
E N D O R S E M E N T
The Court
[1] This is an appeal by Howard Fluxgold 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" under s. 4(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25 (the Act). The Tribunal found that the Appellant did have a "substantial impairment" in accordance with s. 4(1)(a) of the Act but that the evidence did not demonstrate a "substantial restriction" in activities of daily living as required by s. 4(1)(b).
[2] An appeal lies on a question of law alone and the standard of review is correctness.
[3] The appellant submits that the Tribunal erred in three respects:
(a) It misapprehended the evidence by failing to conclude from Dr. Gross' November 25, 2010 report that the appellant suffered from a substantial restriction in the activities of daily living;
(b) It failed to consider all of the evidence and focused too narrowly on evidence that he could sit;
(c) The reasons are inadequate.
[4] With respect to the first alleged error, Dr. Gross has been the appellant's family physician for a number of years. She completed the Health Status Report and Activities of Daily Living Index that were submitted when Mr. Fluxgold applied for disability support payments. The Tribunal found that she was in a good position to assess and interpret Mr. Fluxgold's level of impairments.
[5] The appellant places great reliance on her November 25, 2010 letter, which the Tribunal received as new evidence as it post-dates the Director's decision by about six months. The appellant submits that the Tribunal failed to consider the appellant's limitations in concentration due to his narcotic dependency and erred in finding that at the time of the Director's decision, Mr. Fluxgold was capable of sedentary employment.
[6] In her report of November 25, 2010, Dr. Gross wrote:
In terms of employment, he might have problems with jobs requiring concentration. (emphasis added)
[7] She also wrote:
I do believe that, in due time, the amount of medication taken can/will be further decreased and, given proper support from ODSP, for a period of one or two years, he could be able to perform duties requiring concentration and mental tasks.
[8] On the other hand, in the Activities of Daily Living Index that Dr. Gross completed, she indicated that Mr. Fluxgold's attention span was within normal limits. Also, she did not find it necessary to complete the Intellectual and Emotional Wellness scale which asks questions about memory, focus and intellectual function. The instructions direct that it is not necessary to complete this area for persons whose conditions are solely of a physical nature.
[9] It was for the Tribunal to weigh this evidence. It was open to the Tribunal to reach the conclusions it did on the evidence that was before it. We can find no error.
[10] With respect to the second alleged error, it is clear that the Tribunal considered all of the evidence. Again, the weighing of evidence is a matter for the Tribunal.
[11] Finally, we find no error in the Tribunal's reasons. They are transparent and intelligible. Having regard to the evidence before the Tribunal, the result was within the range of reasonable outcomes. As the Supreme Court said in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 14:
Read as a whole, I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47).
[12] The appeal is dismissed. Neither party seeks costs.
Pardu J.
Lax J.
Mackinnon J.
DATE: October 30, 2012