JUDGMENT

Gilmore J. (Orally)

OVERVIEW

[1] The Appellant appeals the decision of the Social Benefits Tribunal (“the Tribunal”) dated May 6, 2013 in which the Appellant was found not to have met the definition of “a person with a disability” under the Ontario Disability Support Program Act, 1997 (“ODSPA”).

[2] The Tribunal found that the decision of the Director under the ODSPA contained no errors of law and considered all of the evidence before it including the new medical information filed on appeal.

[3] The Tribunal found that the medical evidence which supported the Appellant’s case was not reliable and further, that it was inconsistent with the Appellant’s own testimony. The Tribunal determined the most persuasive evidence to be the Health Status Reports (“HSR”) completed by Dr. Wong and Dr. McCall between December 2009 and February 2012. The Tribunal found the HSR was not suggestive of “substantial impairments” at the time of the Director’s decision and that the Appellant had therefore not discharged his onus of demonstrating that the Director’s decision was wrong.

THE ISSUE ON APPEAL AND THE STATUTORY FRAMEWORK

[4] The Appellant submits the Tribunal erred in law in failing to consider or misapprehending the new medical evidence filed.

[5] In Crane v. Disability Support Program[^1] the three part statutory test in section 4(1) of the ODSPA was set out as follows:

First the person must have a substantial physical or mental impairment that is continuous and expected to last one year or more;

Second, the direct and cumulative effect of the impairment must result in a substantial restriction on the person’s ability to attend to his or her personal care, ability to function in the workplace, or ability to function in the community; and

Third, the impairment and its likely duration and the restriction in the person’s activities of daily living must be verified by a person with prescribed qualifications.

[6] Pursuant to section 64(1) of Reg. 222/98 of the ODSPA new medical evidence is admissible at the appeal hearing where it i)relates to the appellant’s condition at the effective date of the Director’s decision; and ii) was submitted to the Tribunal at least 30 days before the date of the hearing for adjudication.

[7] The Appellant submits that the Tribunal misapprehended or ignored the new medical evidence filed pursuant to Reg. 222/98 where such evidence was crucial to the determination of “disability” under section 4(1) of the ODSPA.

THE STANDARD OF REVIEW AND LEGAL ANALYSIS

[8] The parties to this appeal do not dispute that this appeal relates to a question of law and that the ODSPA provides a statutory right of appeal on such questions at section 31(1).

[9] The parties to this appeal also agree that the standard of review of Tribunal decisions on a question of law is correctness.[^2]

[10] The main issue to be determined by this court is whether the Tribunal adequately considered the totality of the evidence and in particular their decision that the new medical reports were “unreliable.”

[11] More specifically, this court must consider whether the Tribunal misapprehended section 64(1) of the ODSPA in determining that the new medical reports filed by the Appellant at the Tribunal hearing did not provide any further insight into the Appellant’s impairments as of the date of the Director’s decision.

[12] The Appellant argues that the supplementary reports from Drs. Wong and McCall verified his restrictions and impairments and that discounting those reports simply because they post- date the Director’s decision is an error in law.

[13] With respect, I do not agree with the Appellant’s view of the Tribunal’s approach. It was not as simplistic as a rejection of the new medical reports because of their dates. Rather, the rejection of that evidence was on the basis that the Tribunal found those reports to be inconsistent with previous reports which were more closely dated to the Director’s decision. The Tribunal determined that:

[the] recent report renders Dr. Wong’s opinion unreliable due to an unexplained and considerable inconsistency in the opinion provided, or demonstrates a deterioration in his condition which was not present at the time of his application. In either case, I find the evidence provided is not reflective of substantial impairments at the time of the Director’s decision.

[14] The Tribunal went on to find that the new medical reports were inconsistent with both the Appellant’s own testimony and the information in the HSRs which were reflective of the Appellant having fewer rather than more limitations.

[15] This court considered a similar issue in Jemiolo v. Director of the Ontario Disability Support Program.[^3] In that case one of the grounds of appeal was an alleged failure by the Tribunal to consider two new medical reports filed after the date the Director’s decision and before the Tribunal hearing. The court held as follows:

[25][Had the reports]…expressed the opinion that the Appellant’s condition at the time of the Director’s decision was in accordance with their updated reports, and had the Tribunal failed to consider this important evidence, then the results of this appeal may well have been different.

[26]It is clear from the updated medical evidence that the Appellant’s condition has deteriorated. The Tribunal confirmed that the Appellant was entitled to reapply for benefits based upon the updated medical information. We note that he has taken steps to do so.

[27]We conclude that the tribunal did not err in failing to take into account the medical reports of Dr. Long and Dr. Kirwin, dated in 2006, as it was not clear that these reports refer to the effective date of the Director’s decision as required by s.64(1) of the ODSPA.

[16] The mandate of the Tribunal is not to re-assess the Appellant’s application based on new or worsened conditions but to review the Director’s decision. As the Tribunal correctly pointed out in their decision, any change or aggravation in the Appellant’s health may be addressed through a new application.

[17] Given all of the above, I find that the Tribunal’s decision to give the older medical reports before it greater weight than the new reports was not incorrect and that their review of the Director’s decision in that regard did not give rise to an error of law.

[18] Appeal dismissed.

[19] Costs were not sought by the Respondent in this case.

Gilmore J.

Hambly J.

___________________________ D. Brown J.

Released: October 22, 2014

CITATION: Bradley Ferris v. Director, ODSP, 2014 ONSC 6151

DIVISIONAL COURT FILE NO.: DC-13-135-00

DATE: 20141022

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Hambly, D. Brown and Gilmore, JJ.

B E T W E E N:

Bradley Ferris

Appellant

and –

Director of the Ontario Disability Support Plan

Respondent

JUDGMENT

Gilmore J. (Orally)

Released: October 22, 2014

[^1]: 2006 38348 (ON CA), [2006] O.J. 4546, para 25 (OCA).

[^2]: Fournier v. Ontario (Ministry of Community and Social Services) [2013] O.J. No. 2761.

[^3]: 2009 9420 (ON SCDC), [2009] O.J. No.884, paras 25-27.

Bradley Ferris v. Director, ODSP, 2014 ONSC 6151

Case Summary

JUDGMENT

Gilmore J. (Orally)

THE ISSUE ON APPEAL AND THE STATUTORY FRAMEWORK

Gilmore J. (Orally)

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1

JUDGMENT

Gilmore J. (Orally)

THE SOCIAL BENEFITS TRIBUNAL’S DECISION

THE ISSUE ON APPEAL AND THE STATUTORY FRAMEWORK

Gilmore J. (Orally)

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Legal Tests 1