Fournier v. Ontario (Ministry of Community & Social Services), 2013 ONSC 2891

CITATION: Fournier v. Ontario (Ministry of Community & Social Services), 2013 ONSC 2891

DIVISIONAL COURT FILE NO.: DC-12-1812-0000

Storie v. Ontario (Ministry of Community & Social Services)

DIVISIONAL COURT FILE NO.: DC-12-1811-0000

Vibert v. Ontario (Ministry of Community & Social Services)

DIVISIONAL COURT FILE NO.: DC-12-1810-0000

DATE: 20130614

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT – OTTAWA

Sachs, O’Neill, Thomas JJ.

BETWEEN:

Divisional Court File No.: DC-12-1812-0000

Ellen Fournier Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Community & Social Services Respondent

Jackie Esmonde and Laura Hunter, for the Appellant

Geoffrey Baker, for the Respondent

HEARD: April 18, 2013

BETWEEN:

Divisional Court File No.: DC-12-1811-0000

Pauline Storie Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Community & Social Services Respondent

Jackie Esmonde and Laura Hunter, for the Appellant

Geoffrey Baker, for the Respondent

HEARD: April 18, 2013

BETWEEN:

Divisional Court File No.: DC-12-1810-0000

Monique Vibert Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Community & Social Services Respondent

Jackie Esmonde and Laura Hunter, for the Appellant

Geoffrey Baker, for the Respondent

HEARD: April 18, 2013

Thomas J.

[1] These are three appeals pursuant to s. 31 of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (“ODSPA”) considering the provisions of s. 44(1)(iii.1) of Ontario Regulation 222/98 (General) (the “Regulation”). All three matters, bearing almost identical circumstances, come to us on appeal from the Social Benefits Tribunal (the “Tribunal”).

[2] In all three matters, the Tribunal denied the appeals and confirmed the view of the Director (Income Maintenance Board, Pembroke) that the Aquafitness program held in Arnprior was not a “medical treatment” for the individual Appellants and that the program was not “reasonably required”. Both of the above-noted phrases mirror the language of the Regulation.

[3] The Tribunal directed that the three appeals before this Court be heard together since the facts and findings below are virtually indistinguishable.

[4] For the reasons that follow, I would allow each of the appeals and send the applications back to the Tribunal with the directions as set out below.

1. Background

a) The Program

[5] It is clear from the record that Community Mental Health Services (“CMH”) is a program for Renfrew County and originates from Pembroke Regional Hospital. It is funded by the Ministry of Health.

[6] The program offers services to individuals who suffer from severe and persistent mental illness.

[7] As part of its therapeutic treatment program, CMH offers a once-weekly Aquafitness program. While the program is built around physical activity, the main focus is to address the therapeutic needs relating to their mental illness, including through peer support, counselling, and social integration. The Aquafitness program is conducted by a mental health caseworker employed by CMH under the supervision of the program’s psychiatric consultant, Dr. Michael Ferri.

[8] Letters from Dr. Ferri and Diane O’Kane-McHugh, a caseworker at CMH and program coordinator, were filed for each appeal before the Tribunal and confirmed the above information.

[9] The Aquafitness program is held at the Nick Smith Centre pool in Arnprior. Renfrew, the community where the Appellants reside, does not have a pool. Each of the three Appellants is an Ontario Disability Support Program (“ODSP”) recipient with severe and persistent mental illness, limited income, and resides in a rural community at least 30 kilometres from Arnprior. Each of the Appellants applied to the ODSP to fund their transportation cost to this program.

[10] Transportation to the Aquafitness program is provided by Carefor, an agency funded by the Ministry of Health. Clients are charged a small user fee, with the remainder of the travel costs covered by the Local Health Integration Network. It is the payment of the user fee that is at issue here.

b) The Appellants

i) Ellen Fournier

[11] Ms. Fournier is a 62 year-old ODSP recipient who suffers from depression, epilepsy, congestive heart failure, hypertension, severe osteoporosis and chronic migraines.

[12] At the recommendation of her family doctor, mental health caseworker and physiotherapist, Ms. Fournier attends the therapeutic Aquafitness program delivered by CMH. The program supplements the Cardiac Rehabilitation program that Ms. Fournier participates in at the Pembroke Regional Hospital and her physiotherapist has encouraged her to continue.

[13] On October 20, 2009, Ms. Fournier submitted an application form, signed by her family physician, confirming the need for the medical travel benefit to cover the travel cost of attending the therapeutic Aquafitness program. The form was accompanied by a letter from Dr. Ferri confirming that he provides supervision for the entire CMH program.

[14] The Director denied her application.

[15] Ms. Fournier appealed to the Tribunal. The hearing took place on August 16, 2011. Ms. Fournier’s appeal was heard together with the other matters before this Court. The testimony of Diane O’Kane-McHugh was applied to all appeals. Her evidence was that the program was administered under the supervision of a psychiatrist, and was only available to clients of CMH. The evidentiary record also included letters from a family physician, two psychiatrists, a physiotherapist, and the medical transportation agency.

[16] The letters from the medical professionals consistently describe the Aquafitness program as addressing the therapeutic needs of the individual patients related to their mental illness.

[17] Ms. Fournier’s family physician, Dr. Leonard Bloom, called this Aquafitness program “beneficial and excellent therapy for Ms. Fournier”. Ms. Fournier gave evidence that the program assisted her with her depression and chronic pain management and reduced her reliance on medication.

ii) Pauline Storie

[18] Ms. Storie is a 62 year-old ODSP recipient who suffers from depression, anxiety and obsessive–compulsive disorder. Her mental health issues are exacerbated by severe chronic pain. At the recommendation of her doctors, she attends the Aquafitness program at the Arnprior pool. Her family physician, Dr. Cathy MacDonald, monitors her participation.

[19] On October 9, 2009, Ms. Storie submitted her application for the medical travel benefit to cover the travel cost of attending the therapeutic Aquafitness program. The form was accompanied by a letter from Dr. Ferri confirming that he provides supervision for the entire CMH program.

[20] The Director denied Ms. Storie’s application for the medical travel benefit on October 15, 2009 on the grounds that the therapeutic Aquafitness program was “of a social or recreational nature”. Ms. Storie requested an internal review of this decision on November 12, 2009. A back-dated Health Benefit application form signed by her treating psychiatrist, Dr. Chris Rae, was also submitted on November 13, 2009, prior to a decision being made on internal review. The Director upheld the original decision.

[21] Ms. Storie’s appeal to the Tribunal was heard on August 16, 2011.

[22] Ms. Storie testified that there has been a marked difference in her mental health as a result of her participation in the therapeutic program. It has assisted with her suicidal ideation, self-harming practices, overcoming harmful thought patterns associated with her anxiety and obsessive-compulsive disorder and she is taking fewer medications (including hypertension medications). She testified that her doctors have been impressed with the improvement in her mood. She described the program as supportive and as having a non-judgmental atmosphere. These elements of the program allow her to talk about mental health issues with others who have similar experiences, while participating in the program.

[23] The Tribunal dismissed her appeal.

iii) Monique Vibert

[24] Ms. Vibert is a 48 year-old ODSP recipient who suffers from severe bipolar disorder, pituitary microadenoma (tumours), borderline diabetes, hypothyroidism, chronic knee/hip/foot pain, and severe morbid obesity caused by her psychiatric medications.

[25] On October 20, 2009, Ms. Vibert submitted an application form for the medical travel benefit to cover the travel cost of attending the therapeutic Aquafitness program. The form was accompanied by a letter from Dr. Ferri confirming that he provides supervision for the entire CMH program.

[26] The Director denied Ms. Vibert’s application for the medical travel benefit on October 14, 2009 on the grounds that the therapeutic Aquafitness program was “of a social or recreational nature”. Ms. Vibert requested an internal review of this decision on November 12, 2009. The Director upheld the original decision on November 18, 2009. On February 17, 2010, Ms. Vibert submitted a back-dated request form signed by Dr. Ferri, with supporting letters from Dr. Ferri and a second psychiatrist, Dr. Chris Rae. The decision did not change.

[27] Ms. Vibert appealed to the Tribunal. An appeal was heard on the same day as those of Ms. Storie and Ms. Fournier.

[28] Ms. Vibert gave evidence that the therapeutic Aquafitness program assists with her depression and chronic pain management. She testified that as a result of the program her mobility has improved, she has gained strength and that the program has helped with her depression, and that she would not attend the program if it was not run by a community mental health agency. She told the Tribunal that the program motivates her to leave her home and attend to her personal care and grooming, which she might not otherwise do.

[29] Her appeal was unsuccessful.

2. Legislation

[30] For the purposes of the analysis in this decision, the relevant portions of the Act are as follows:

Purpose of Act (ODSPA)

1. The purpose of this Act is to establish a program that,

a) provides income and employment supports eligible persons with disabilities;

b) recognizes that government, communities, families and individuals share responsibility for providing such supports;

c) effectively serves persons with disabilities who need assistance; and

d) is accountable to the taxpayers of Ontario.

Person with a disability

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.

[31] The portion of the Regulation considered states the following:

44. (1) The following benefits shall be paid with respect to each of the members of a recipient’s benefit unit if the Director is satisfied that he or she meets the criteria for them and income support is being paid on his or her behalf:

(iii.1) the cost of transportation that is reasonably required in any month for medical treatment for members of the benefit unit and that is not otherwise reimbursed or subject to reimbursement, if the cost of that transportation in the month is $15 or more.

3. Decisions of the Tribunal

[32] All three decisions consider the same Aquafitness program and follow identical lines of reasoning. The relevant parts of the Fournier decision are set out below.

[33] It is clear that each decision relied heavily on this court’s ruling in Ontario (Disability Support Program, Director) v. Billotte, [2009] O.J. No. 1108 (Div. Ct.) (“Billotte”).

[34] In each decision the Tribunal applied its view of Billotte and found that while the Aquafitness program at the Arnprior pool might provide benefits to each Appellant, that alone was not sufficient to amount to “medical treatment” as required by the Regulation. Further, it found that no explanation was provided by the Appellants to explain why CMH did not cover the cost of this transportation as it did for other off-site excursions and whether alternative activities might provide the same benefits.

[35] In the result, the Tribunal confirmed the Director’s denial of reimbursement for transportation costs to the Aquafitness program.

[36] The Tribunal stated the following in its Fournier decision:

There is no dispute that the Appellant would qualify for the transportation costs as per 44(1)(1)(iii.1) Sections 1, 2 and 3 of the O. Reg. 222/98. It is sections 4 and 5 that are in question; that the costs must be reasonably required and the transportation is for medical treatment.

The Tribunal notes that the previous Tribunal decisions are not binding on the Tribunal; however, the Division Court decision is. The Court stated, in determining medical transportation costs the Director is to look at the nature of the activities, not just at their benefit. In this regard the Tribunal agrees with member Murray’s reasoning in part as set out in the Social Benefits Tribunal decision of 0808-07296R where he notes the following: “that her attendance at the health club is therapeutic and of medicinal benefit to her may well be so, however that fact alone is not sufficient for a finding that her attendance constitutes treatment”. Additionally, “finally what the Director may or may not do with respect to medical transportation costs for addicts and or alcoholics has no probative value in relation to the matter under appeal”. The Tribunal is concerned with the facts of this case only, not that of another type of treatment or program.

The Caseworker had stated that other programs within the CMH centre are also beneficial, such as outings to the beach and lunches out, and yet no request is made for medical transportation costs for these programs. The Tribunal therefore questions the difference in the nature of these programs. The Tribunal also questions, if the aqua fitness program is as beneficial, or even more so as the Appellant states, why CMH covers the transportation costs for other programs and not the aqua fitness program? Therefore the Tribunal finds that it is not the benefits of the program which is the delineating factor, which, according to the Appellant, Caseworker and doctors is the reason for the Appellant’s attendance in the program. In this regard the Tribunal also agrees with member Hummelen’s reasoning in part as set out in the Social Benefits Tribunal decision of 0809-07981R where she states “Also, while the program may help in her isolation and weight management, the Appellant has failed to satisfy the Tribunal that the benefits she achieves are not available in other ways”.

4. Jurisdiction and Standard of Review

[37] Our jurisdiction to hear this appeal is set out in s. 31 of the ODSPA and the relevant portions are set out below:

Appeal to Court

31. (1) Any party to a hearing before the Tribunal may appeal the Tribunal’s decision to the Divisional Court on a question of law.

Powers of court on appeal

5. In an appeal to the Court of a decision of the Tribunal, the Court may,

a) deny the appeal;

b) grant the appeal;

c) grant the appeal in part; or

d) refer the matter back to the Tribunal or the Director for reconsideration in accordance with any directions the Court considers proper.

[38] In the factums filed, all counsel submitted the standard of review to be “correctness” considering that it was a question of law.

[39] The parties relied upon the decision in Disability Support Program, Director v. Favrod, 2006 4898 (Div. Ct.), at para. 10 and Mule v. Ontario Disability Support Program (Director) (2007), 2007 82788 (ON SCDC), 88 O.R. (3d) 326 (Div. Ct.). Both the above cases were decided before Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (“Dunsmuir”).

[40] Upon reviewing this matter, it became clear that the standard of review with respect to the decisions of tribunals on questions of law involving their home statutes had received considerable further judicial consideration since the cases that were cited to us (Dunsmuir; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] S.C.J. No. 61, at paras. 34 and 39 (“Alberta v. Alberta Teachers”), and Toronto (City) Police Service v. Phipps, 2012 ONCA 155, [2012] O.J. No. 2601, at para. 10).

[41] This panel then requested further written submissions from counsel on the issue of the standard of review and potentially its application to these appeals.

[42] Counsel prepared a brief joint submission dated May 2, 2013. Again, counsel urged the Court to adopt “correctness” as the standard of review in these appeals and offered Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] S.C.J. No. 53 (“Canada HRC v. Canada A.G.”) as authority, together with recent decisions of this court in Ontario (Director, Disability Support Program) v. Walsh, 2011 ONSC 1526, [2011] O.J. No. 1056 (Div. Ct.); Ontario (Disability Support Program) v. Surdivall, 2012 ONSC 1851, [2012] O.J. No. 1675 (Div. Ct.); and Peplinski v. Ontario (Director, Disability Support Program), 2012 ONSC 2972, [2012] O.J. No. 3015 (Div. Ct.).

[43] The above-noted cases from the Divisional Court considered the ODSPA and are consistent with counsel’s position that the standard of review is “correctness”.

[44] Further, at paras. 30 and 31, of Canada HRC v. Canada A.G., the Supreme Court drew a distinction between a reviewing court’s function of judicial review from that of appellate review:

The concept of deference is also what distinguishes judicial review from appellate review. Although both judicial and appellate review take into account the principle of deference, care should be taken not to conflate the two. In the context of judicial review, deference can shield administrative decision makers from excessive judicial intervention even on certain questions of law as long as these questions are located within the decision makers’ core function and expertise. In those cases, deference would therefore extend to protect a range of reasonable outcomes when the decision maker is interpreting its home statute (see R.E. Hawkins, “Whither Judicial Review?” (2010), 88 Can. Bar Rev. 603).

By contrast, under the principles of appellate review set down in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, an appellate court owes no deference to a decision maker below on questions of law which are automatically reviewable on the standard of correctness. In Khosa, a majority of the Court confirmed that these principles of appellate review should not be imported into the judicial review context.

[45] Given this direction from the Supreme Court of Canada, the jurisprudence from this Court since Dunsmuir and the joint position of counsel I will apply the “correctness” standard here. In the final analysis, for the reasons set out below, if I am wrong, my conclusions would not be altered by applying the “reasonableness” standard.

5. Issues

[46] The Appellants submit the following errors in law:

a) that the Tribunal erred in its interpretation of the term “medical treatment” for the purposes of eligibility for ODSP’s medical travel benefit,

b) that the Tribunal erred in suggesting that s. 44 of the Regulation requires that the Appellants provide evidence that no alternative program or activity would provide the same benefits, and to explore what other agency might more appropriately bear the travel cost.

[47] The Respondents take the following positions:

a) that no error of law exists in the Tribunal’s consideration of the term “medical treatment” but rather the Appellants are questioning the Tribunal’s findings of fact in coming to their conclusion that the Aquafitness program did not qualify;

b) that even if this Court were to allow the appeal on the issue of the definition of “medical treatment”, the Tribunal would still have to receive and weigh evidence on whether the treatment was reasonably necessary or whether alternative programs exist that would be equally beneficial.

c) finally, should ODSP be responsible for the transportation costs associated with this treatment or is there another agency that should bear these costs?

6. Analysis

a) Issue One - “Medical Treatment”

[48] The Tribunal’s decision turns on its interpretation of s. 44 of the Regulation, which is a regulation under the ODSPA. The current approach to statutory interpretation requires that statutory provisions be interpreted in their total context, having regard to the purpose of the legislation, the consequences of proposed interpretations and the legislative text. After taking all of these factors into account, the court or tribunal must adopt an interpretation that it considers appropriate.

At the end of the day, after taking into account all relevant and admissible considerations, the court must adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of legislative intent; and (c) its acceptability, that is, the outcome complies with accepted legal norms; is reasonable and just. [Sullivan, Construction of Statutes, at p.3; see also Re Rizzo & Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 S.C.R. 27, at paras, 21-23; Bapoo v. Co-operators General Insurance Co. (1997), 1997 6320 (ON CA), 36 O.R. (3d) 616 (Ont. C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 62, at pp. 620-621].

[49] A failure to apply this approach to statutory interpretation is an error of law.

[50] The ODSPA is remedial legislation. As such, it, “should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities” (Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364 (C.A.), at para. 9 (“Gray”).

[51] As social welfare legislation, ambiguity should be resolved in favour of the applicant seeking benefits (Wedekind v. Ontario (Ministry of Community and Social Services) (1994), 1994 1659 (ON CA), 21 O.R. (3d) 289 (C.A.), at p. 296-97.

[52] It is important for the Court to recognize and respect the benevolent purpose of the ODSPA (Villani v. Canada (Attorney General), 2001, FCA 248, 205 D.L.R. (4th) 58, at p. 70).

[53] Having confirmed that the purpose of the ODSPA is to support persons with disabilities, it is important for the context of these appeals that this Province’s Ministry of Health has recognized an evolution in treatment practices that support those persons suffering from long-term mental illness.

[54] A review of the Ministry’s position on these practices is essential to understanding the benevolent purpose of the legislation and its interpretation related to the issues confronting these Appellants.

[55] In July 2009, the Province released a discussion paper entitled “Every Door is the Right Door: Towards a 10-Year Mental Health and Addictions Strategy, A Discussion Paper”. Provincial officials, while emphasizing the importance of traditional approaches to mental health treatment, set out the following approach at p. 32 of the paper:

In addition, the system can integrate other evidence-based, person-directed approaches to care, including healthy development, psychosocial rehabilitation, recovery, harm reduction and trauma-informed services.

[56] Psychosocial rehabilitation is defined at the same page as:

Psychosocial rehabilitation is the process of helping someone diagnosed with a psychiatric problem re-establish normal roles and re-integrate into community life. It includes rehabilitation work by psychiatrists, psychologists and social workers. These services include pharmacologic treatment, independent living and social skills training, psychological support to clients and their families, housing, vocational rehabilitation, social support, and access to leisure activities.

[57] Drawing upon the theme of its discussion paper, the Ministry of Health, at pp. 45 and 48, suggested a new view of services that must be read as part of the purpose of the ODSPA:

When communities can identify people who are vulnerable, they can provide services and supports tailored to local needs that help people build strengths, participate in their communities, become more resilient and improve their health. Population-based health promotion and disease prevention programs can build community resilience.

To make every door the right door for people with mental illness and/or addictions, the system must change. We must work differently, offer services in different ways, develop new skills and attitudes, and forge stronger partnerships between sectors and between service users and service providers.

To transform the system – to open existing doors and create new ones – Ontario needs the right structures and tools.

[58] Having considered the Province’s refreshed approach to the treatment of mental illness and addictions, assistance in the interpretation of the ODSPA can also be sought from the ODSP’s own policy directives applicable to the Act itself.

[59] On the specific matter of the funding of the transportation in issue, the ODSP Directive 9.12 (“Mandatory Special Necessities”) states:

The cost of transportation to attend mental health therapy and mental health counselling programs is covered, provided that the treatment has been prescribed by a professional designated under the Regulated Health Professions Act, 1991 (e.g. physician, psychiatrist, psychologist) and the program is provided under the supervision of a physician, psychiatrist or psychologist. Coverage for programs that are solely of a social or recreational nature cannot be provided.

[60] Applying the above-noted 2006 Directive to the treatment program at issue in these appeals, the following can be said:

a) The Appellants” physicians have recommended this Aquafitness program as a form of treatment;

b) this program was identified as a medical treatment by the physicians completing the required application for the medical travel benefit;

c) this program is supervised by a psychiatrist; and

d) the program is run by qualified mental health caseworkers who modify and adapt classes for these Appellants who suffer from significant mental health disabilities.

[61] As previously mentioned, the Tribunal in each of its decisions significantly relied on this court’s decision in Billotte. Billotte recognizes that while a program may supply a benefit, a benefit alone is not enough to make it a “medical treatment” as that term is used in the ODSPA. In that decision, as in these, Mr. Billotte’s application for funding was denied.

[62] There are important distinctions, however, to be drawn as between Billotte and the three appeals here. Mr. Billotte was undertaking, on his own, woodworking, church cleaning and lawn maintenance. There was no medical supervision. It is hard to dispute the logic in Billotte, but it has limited application here.

[63] Applying a purposive approach to the Regulation the term “medical treatment” would include the specific Aquafitness program considered in each of these appeals. It is medically prescribed by a physician, therapeutic and beneficial to the patient, supervised by a psychiatrist, and administered and adapted to individuals by mental health caseworkers. The benefit here can be expressed in medical terms by the prescribing medical doctor. To decide otherwise would be to ignore the intent of this remedial legislation and allow for a form of strict interpretation that is indefensible in policy or in practice. In coming to the conclusion it did in each of these three appeals, the Tribunal made an error in law in its interpretation of the term “medical treatment” for the purposes of eligibility for ODSP’s medical travel benefit.

b) Issue Two – Alternative Programs, Alternative Payment Sources

[64] This issue is created by the reasoning of the Tribunal set out below:

The Caseworker had stated that other program within the CMH centre are also beneficial, such as outings to the beach and lunches out, and yet no request is made for medical transportation costs for these programs. The Tribunal therefore questions the difference in the nature of these programs. The Tribunal also questions, if the aqua fitness program is as beneficial, or even more so as the Appellant states, why CMH covers the transportation costs for other programs and not the aqua fitness program. In this regard the Tribunal also agrees with member Hummelen’s reasoning in part as set out in the Social Benefits Tribunal decision of 0809-07981R where she states Appellant has failed to satisfy the Tribunal that the benefits she achieves are not available in other ways”.

[65] The Tribunal suggests that each Appellant carries a burden to prove to the Tribunal that no other alternative programming would achieve the same benefits and no other source of funding is available, including funding from CMH.

[66] This, in my view, is a significant misreading of the ODSPA and the relevant Regulation. Once it has been determined that the transportation is for a “medical treatment” the applicant need only prove that the cost is not otherwise reimbursable and is over $15 per month. Both those final issues are not in dispute here.

[67] The term “reasonably required” in s. 44(1)(iii.1) of the Regulation cannot, with the purpose and scheme of this legislation, be seen to mean that the applicant carries a further burden to exhaust all other activities and to search all other pockets. That interpretation does not accord with the text of the provision, does not serve the severely disabled ODSP recipient and amounts to an error in law.

[68] Interestingly, as previously mentioned, the transportation for the Appellants in question here, is provided by Carefor, an agency funded by the Ministry of Health.

c) “Reasonableness” Standard

[69] In the event that a reasonableness standard does apply to the Tribunal’s decisions the deficiencies in the Tribunal’s reasoning noted above do not allow for deference. These decisions are neither justified nor intelligible and fall outside the range of possible, acceptable outcomes (Dunsmuir, at para. 47).

[70] It was quite simply unreasonable for the Tribunal to come to the decision it did in these cases. These Appellants in their circumstances need transportation to a physician directed, physician supervised, beneficial and therapeutic program of exercise not available in their rural community. They each have severe mental illnesses and are poor.

[71] Further, the decisions suggest arbitrariness in that the Court was made aware of three instances where ODSP recipients in similar circumstances, with similar supporting applications, were granted this benefit for transportation to the exact same Aquafitness program. We are here entitled to review the Tribunal decisions in other cases to determine if a reasonable basis for the decision exists (Alberta v. Alberta Teachers, at para. 56).

7. Conclusion

[72] I would allow all three appeals. I am convinced that s. 31(5) of the ODSPA constrains the relief we may grant (Gray, at para. 27) and that the matters must be referred back to the Tribunal for reconsideration in accordance with the Court’s direction.

[73] I would direct the Tribunal that with respect to each Appellant this specialized Aquafitness program at the Arnprior pool is a “medical treatment” as that term is used in the Regulation. I would further direct that the Tribunal should not require that the Appellants provide further evidence of alternative programs or alternative funding sources in the Tribunal’s assessment of whether the proposed transportation is “reasonably required” under s. 44 (1)(iii.1) of the Regulation.

[74] The parties before this Court agreed that it would be appropriate if there were no order as to costs.

Thomas J.

Sachs J.

O’Neill J.

Released: June 14, 2013

CITATION: Fournier v. Ontario (Ministry of Community & Social Services), 2013 ONSC 2891

DIVISIONAL COURT FILE NO.: DC-12-1812-0000

Storie v. Ontario (Ministry of Community & Social Services)

DIVISIONAL COURT FILE NO.: DC-12-1811-0000

Vibert v. Ontario (Ministry of Community & Social Services)

DIVISIONAL COURT FILE NO.: DC-12-1810-0000

DATE: 20130614

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, O’Neill, Thomas JJ.

BETWEEN:

DIVISIONAL COURT FILE NO.: DC-12-1812-0000

Ellen Fournier Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Community & Social Services Respondent

DIVISIONAL COURT FILE NO.: DC-12-1811-0000

Pauline Storie Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Community & Social Services Respondent

DIVISIONAL COURT FILE NO.: DC-12-1810-0000

Monique Vibert Appellant

– and –

Director of the Ontario Disability Support Program of the Ministry of Community & Social Services Respondent

REASONS FOR JUDGMENT

Released: June 14, 2013