Jiwa v. Ontario (Disability Support Program)
CITATION: Jiwa v. Ontario (Disability Support Program) 2019 ONSC 1149
DIVISIONAL COURT FILE NO.: 419/17 DATE: 20190214
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, BACKHOUSE, and M. EDWARDS JJ.
BETWEEN:
RASHIDA JIWA
Appellant
– and –
DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
COUNSEL:
Alnaz I. Jiwa, for the Appellant
Michelle Schrieder, for the Respondent
HEARD at Toronto: February 14, 2019
ORAL REASONS FOR JUDGMENT
SACHS J. (Orally)
[1] This is an appeal from the decision of The Social Benefits Tribunal (the “Tribunal”) dated July 15, 2017 that found that the Appellant was not a “person with a disability” within the meaning of the Ontario Disability Support Program Act, 1997, S.O. 1997, c.25 Sch. B (the “Act”).
[2] Section 31(1) of the Act provides that appeals from the Tribunal may be made to the Divisional Court on questions of law.
[3] The Appellant asserts that the standard of review to be applied to the Tribunal’s decision on questions of law is correctness. We disagree. As this Court has affirmed in Corrigan v. Ontario (Director, Disability Support Program) 2016, ONSC 6212 and Kim v. Ontario (Director, Ontario Disability Support Program), 2018 ONSC 2383, the applicable standard of review is reasonableness.
[4] In this case, the Appellant claimed that she had a number of impairments, only two of which were “verified” within the meaning of the Act.
[5] When assessing whether the verified impairments met the requirements of substantiality, the Tribunal stated that it was giving “little weight to the Appellant’s evidence about separate and distinct medical conditions and impairments not properly verified” (Tribunal’s Decision para. 31).
[6] The Appellant argues that in choosing to give little weight to her unverified medical conditions and impairments in their assessment of substantiality, the Tribunal failed to adopt the principles governing the assessment of substantiality that are set out in Ontario (Director, Disability Support Program v. Crane, 2006 38348 (ONCA) and Sandiford v. Ontario (Ministry of Community Family and Children Services), 2005 5491 (Div. Ct.). As put by the Appellant at para. 27 of her factum “It is submitted that the Tribunal erred in applying the test for Section 4(1) of the ODSPA in concluding that the impairments were not ‘substantial’ when it refused to ‘take account of the whole person, including some of her activities’ because they were not verified. The Tribunal’s decision is contrary to the decision held by Gray (sic) and Sandiford.”
[7] We disagree. In Crane, at para. 20, the Court of Appeal had this to say about the inquiries with respect the substantiality of the verified impairments:
[20] It is important to observe, however, that although the inquiries mandated by paras. (a) and (b) of s. 4(1) relate to different issues or thresholds, the evidence relevant to the two inquiries can overlap. This is so because in some cases a simple description of the deviation or loss of body function or structure will not answer the question: is this a substantial impairment? To take but one example, the loss of an entire arm or leg would almost certainly constitute, without knowing anything more about the person's activities, a substantial impairment under s. 4(1)(a). However, the loss of a single finger or toe would be a different case. Such an injury would be a loss of body structure. But would it constitute a substantial impairment? In order to answer this question, the inquiry would have to go beyond simple medical description and take account of the whole person, including some of her activities. This, of course, opens the door to some of the evidence relevant to s. 4(1)(b) also being apposite to the s. 4(1)(a) inquiry.
[8] This quote does not stand for the principle that “taking account of the whole person” in assessing substantiality means giving weight to evidence of separate and distinct medical conditions and impairments that have not been verified.
[9] The issue in Sandiford was not the issue that is before the Court on this appeal. In Sandiford, the Divisional Court overturned the Tribunal’s decision because the Tribunal had incorrectly held that the health professional needed to verify every aspect of the appellant’s condition in that case, including whether the impairments and restrictions were substantial.
[10] The Tribunal in this case did not make that error. When it came to the questions of substantiality, it clearly considered evidence other than evidence from health professionals. At paras. 23, 24 and 25 of its decision, the Tribunal states as follows:
[23] The Court of Appeal in Crane v. Ontario (Disability Support Program) (2006), 2006 38348 (ON CA), 278 D.L.R. (4th) 374, stated that s.4(1) presents three separate tests that require separate analysis and answers. The onus is on the Appellant to establish all three factors. However, the Court went on to say that in some cases, not all, there can be an overlap of evidence relevant to the factors in paragraphs (a) and (b) of s.4(1).
[24] This is because although the concept of impairment is anchored in medicine, the determination of whether an impairment is substantial will require consideration of the whole person, including a person’s ability to function in the domains of personal care, community and workplace.
[25] The Tribunal considered the totality of the evidence in this case and found on a balance of probabilities that the Director’s decision was not wrong. The Tribunal found the oral and documentary evidence combined offered insufficient and not compelling evidence of substantiality.
[11] These paragraphs demonstrate that the Tribunal was alive to the principles articulated in Crane and Sandiford. Further, reading their decision as a whole, it is clear that these principles were correctly applied. In our view, the Tribunal’s decision discloses no error of law and its decision was reasonable.
[12] For these reasons, the appeal is dismissed.
[13] I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for reasons given orally by Sachs J. No order as to costs.”
SACHS J.
I agree
BACKHOUSE J.
I agree
M. EDWARDS J.
Date of Reasons for Judgment: February 14, 2019
Date of Release: February 28, 2019
CITATION: Jiwa v. Ontario (Disability Support Program) 2019 ONSC 1149
DIVISIONAL COURT FILE NO.: 419/17 DATE: 20190214
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, BACKHOUSE, and M. EDWARDS JJ.
BETWEEN:
RASHIDA JIWA
Appellant
– and –
DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: February 14, 2019
Date of Release: February 28, 2019