CITATION: Savor v. ODSP, 2012 ONSC 6446
COURT FILE NO.: DC-11-0007-00
DATE: 2012-Nov-14
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
Smith, C.J., Ducharme and Lederer, JJ.
B E T W E E N:
MARILYN SAVOR
Claire E. Littleton, for the Appellant
Appellant
- and -
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES
Mimi N. Singh, for the Respondent
Respondent
HEARD: November 14, 2012
Smith, C.J., Ducharme, and Lederer, JJ.
DECISION
[1] This is an appeal from a decision of the Social Benefits Tribunal. The Tribunal upheld a decision of the Director under the Ontario Disability Support Program Act 1997 S.0 1997 c. 25 Schedule B, which found that the Appellant, Marilyn Savor is not “a person with a disability” The appeal is limited to a question of law (see: Ontario Disability Support Program Act, supra s. 31(1)).
[2] The appeal is based on the proposition that the Tribunal failed to deal with the evidence in an appropriate manner. It is submitted that these errors are so fundamental that they amount to errors in law sufficient to require this court to either send the matter back for a new hearing or evaluate the evidence and make its own determination as to whether the Appellant is a person with a disability.
[3] It may be helpful to examine the policy considerations behind the limits to the appeal as imposed by the legislation:
The privative clause found in s. 31 of the ODSPA clearly limits appeals from the Tribunal’s decisions to questions of law. This is the legislature’s statutory recognition of the Tribunal’s expertise as a specialized body tasked with determining individual entitlement to social assistance, and serves to insulate the Tribunal’s factual findings from interference by an appellate court…
(Ontario (Director, Disability Support Program) v Tranchemontagne 2009 18295 (ON SCDC), [2009] O.J. No. 1613 at para. 34 as quoted in Siegel v Ontario (Disability Support Program 2011 ONSC 5916 (Div, Ct.) at para. 8.)
[4] This confirms that the Tribunal is to be accepted as having specialized expertise in making assessments of the sort required here. The quotation which has just been referred to goes on to say:
Considerable deference is to be afforded to the Tribunal’s factual findings, except those dealing exclusively with questions of law.
[5] The applicable test has been set:
Clearly, if the Tribunal was correct, in its interpretation of the law and the manner in which it was required to approach the evidence, this Court is not entitled to interfere. Moreover, the weight given to items of evidence is exclusively for the Tribunal.
(Matthews – Clarke Ontario (Director Disability Support Program [2002] O.J. No. 837 (Div Ct. at para 3 referred to in Siegel v Ontario (Disability Support Program) supra at para 10)
[6] In this case the Appellant says the Tribunal erred in failing to admit or fully consider a report from her family doctor dated April 2, 2010 which was delivered after the decision of the director but before the hearing by the Tribunal.
[7] It is true that the decision of the Tribunal referred to two cases that considered admissibility of new evidence (see: Omar v Ontario (Director Ontario Disability Support Program 2007 10211 (ON SCDC), [2007] O.J. No. 1216. and Jemiolo v Director (Ontario Disability Support Program) Divisional Court File No. 122/07 March 2, 2009. Nonetheless it is clear that the Tribunal admitted the report and considered its contents. The decision of the Tribunal refers to the following:
The Tribunal also determines that there is a preliminary issue with respect to including the April 2, 2010 report by Dr. P. on the basis that the report is written in the present tense and therefore is indicative of impairments and restrictions that deteriorated since the Director made its initial decision on February 23, 2010. The Tribunal particularly notes that in the Activities of Daily Living Report completed by Dr. P. on November 22, 2009 did not identify any restrictions with respect to the area of housekeeping chores. Yet, in the April 2, 2010 report, Dr. P. states that the Appellant has difficulty performing many of her usual tasks within the house.
[8] The April 2, 2012, report also referred to the Appellant suffering from diabetes:
While the Tribunal acknowledges that the condition of diabetes has existed at least since December 2008 and continues to be a medical condition affecting the Appellant into the year 2010, the Tribunal notes that Dr. P., who has known the Appellant for some 10 years, did not identify what are the relevant impairments and restrictions emanating from this condition. Furthermore, Dr. P. has not provided further confirmation that the diabetes is not controlled nor is there any evidence detailing the status of the condition. Therefore, while the Tribunal accepts diabetes as a condition, it gives lesser weight to it.
[9] The Tribunal considered the April 2, 2012 report as demonstrating a deterioration in the Appellants condition.
Dr. P. made no mention of the Appellant’s difficulty with housekeeping chores therefore it is the view of the Tribunal that because Dr. P. speaks in the present tense in her report of April 2, 2010, the housekeeping restrictions are representative of a deterioration of the Appellant’s medical condition.
[10] Ultimately the Tribunal found, as it was entitled to do, that the April 2, 2010 report was not helpful and gave it no weight.
Seeking guidance from Jemiolo and Omar, the Tribunal finds that this assessment outlines the Appellant’s condition on the day it was written. Therefore, the Tribunal finds this report is not helpful in determining the Appellant’s level of impairments and restrictions with respect to ‘back pain’ at the time of the Director’s decision, and thus gives it no weight.
[11] Thus, there is no basis for this court to find that the Tribunal failed to apply the correct test or to properly consider the report of April 2, 2010.
[12] The Appellant also asserts that the Tribunal is not entitled to make adverse findings of credibility without providing adequate reasons.
[13] In considering what weight to give the Appellant’s testimony that her pain level reaches 10 on a pain scale, where 1 is the lowest and 10 is the highest, the member reviewed the other evidence to see how this testimony fits with it. In doing this, the Member noted that:
(i) the Appellant does not require aggressive therapy to deal with her discomfort;
(ii) the Appellant is not using any assistive devices;
(iii) the Appellant has not attended physiotherapy, only attended massage therapy briefly; has not attended chiropractic care;
(iv) the Appellant’s pain treatment has been very conservative and non- intrusive in nature;
(v) although the Appellant testified that she attended the hospital emergency but there is no report from Dr. P, who has known her for 10 years;
(vi) the Appellant has been dealing with diabetes for over 10 years but there is no report from Dr. P stating that this condition is not being controlled at the time of her application;
(vii) The various “diagnostic imaging reports show mild findings”… [that] are not representative of impairments that rise to the level of substantial”; and
(viii) The investigative reports reveal normal findings or “mild” findings at best.
[14] The Member explained that the Appellant’s testimony should be given less weight because:
…The Appellant is managing her pain symptoms with Advil and bed rest. Without further accompanying medical assessments and diagnosis, the testimony of the Appellant describing the impact of her impairments fails to persuade the Tribunal that her impairments rise to the level of substantial. The Tribunal asserts further that the level of impairments the Appellant is experiencing may not be as significant as she is suggesting. The Tribunal gives less weight to the oral testimony.
[15] The Tribunal did not conclude that the Appellant was not credible. Rather they considered her viva voce testimony within the context of all of the evidence and attached less weight to the subjective description of her pain. There was no adverse finding of credibility to explain.
[16] In summary we accept the following:
We reiterate that it is not the role of the appellate courts to second-guess the weigh to be assigned to various pieces of evidence…The appellate courts is not free to interfere with a factual conclusion that it disagrees with, where such disagreement stems from a difference of opinion over the weight to be assigned to the underlying facts. Housen v Nikolaisen [2002] 2 S.C.R. 235, 2002 SCC 33
[17] Accordingly, the appeal is dismissed.
Chief Justice H.J. Smith
Justice J.T. Ducharme
Justice T.R. Lederer
Released: November 14, 2012
CITATION: Savor v. ODSP, 2012 ONSC 6446
COURT FILE NO.: DC-11-0007-00
DATE: 2012-Nov-14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MARILYN SAVOR
Appellant
- and –
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGAM OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES
Respondent
REASONS FOR DECISION
Smith, C.J., Ducharme and Lederer, JJ.