CITATION: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747
DIVISIONAL COURT FILE NO.: DC-18-2424
DATE: 2019/05/02
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, DOYLE, ROGER JJ.
BETWEEN:
Marc Charron
Appellant
– and –
Director of the Ontario Disability Support Program
Respondent
Jackie Esmonde and Sarah Sproule, for the Appellant
Cheryl Ellison, for the Respondent
HEARD at Ottawa: May 1, 2019
THE COURT
Introduction
[1] The Appellant, Marc Charron, has been diagnosed with major depressive disorder and chronic back pain. He appeals the order of the Social Benefits Tribunal (the “Tribunal”), dated June 19, 2018, dismissing his appeal of the Director’s decision denying him Ontario Disability Support Program benefits.
[2] The Tribunal found that Mr. Charron was not eligible for income support under the Ontario Disability Support Program Act, S.O. 1997, c. 25 (the “Act”), because it was not satisfied that the Appellant’s impairments were substantial at the time of the Director’s decision (pursuant to s. 4(1)(a) of the Act).
[3] The Appellant asks this Court to allow the appeal, set aside the order, and grant an order that he qualifies as a “person with a disability”. In the alternative, the Appellant asks for an order remitting the matter to the Tribunal for a new hearing before a new panel.
[4] The Respondent asks this Court to dismiss the appeal, or alternatively, to remit this matter for a rehearing before a new panel.
[5] For reasons that follow, we have decided to grant the appeal and order that this matter be remitted for a rehearing before a new panel of the Tribunal.
Issues
[6] The key issues raised by this appeal are:
Did the Tribunal apply the wrong test to determine whether Mr. Charron was a “person with a disability” under s. 4(1) of the Act?
Did the Tribunal err in law by making findings that were inconsistent with the evidence, particularly when it refused to consider an expert psychiatric assessment?
Analysis
[7] Section 31 of the Act provides that an appeal on a question of law from the Tribunal’s decision lies to the Divisional Court.
[8] The applicable standard of review is reasonableness (see Corrigan v. Ontario Disability Support Program, 2016 ONSC 6212 (Div. Ct.) , 134 O.R. (3d) 547, at paras. 20-22).
[9] The legal test pursuant to the Act to determine whether a person is considered a “person with disability” is provided at s. 4 of the Act:
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. 1997, c. 25, Sched. B, s. 4 (1).
[10] Thus, s. 4(1) sets out a three-part test that requires the claimant to prove substantial impairment of the required duration, substantial restriction in activities, and verification (see Crane v. Ontario Director of the Ontario Disability Support Program (2006), 2006 38348 (ON CA), 83 O.R. (3d) 321 (Ont. C.A.)).
[11] As indicated by the Ontario Court of Appeal in Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364, at paras. 9 to 16:
• The Act is remedial legislation that should be interpreted broadly and liberally, in accordance with its purpose of providing support to persons with disabilities.
• Section 4 of the Act provides for “substantial”, not “severe” or “major” as earlier versions did.
• The words “person with a disability” in the Act was intended to encompass a broader segment of society and to provide assistance to persons with significant but not severe long-term functional barriers.
• The word “substantial” should be given a flexible meaning related to the varying circumstances of each case.
[12] After carefully reviewing the materials, we find that the Tribunal erred in law when it misapprehended or failed to appreciate relevant evidence – that of the psychiatrist who saw the Appellant in February, 2018, about four months after the Director’s decision. As this Court stated in Jennings v. Minister of Social Services of Ontario, 2015 ONSC 6689, 340 O.A.C. 252 (Div. Ct.), at para. 41, an error of law includes disregarding, misapprehending or failing to appreciate relevant evidence.
[13] The Tribunal completely disregarded the opinion of the psychiatrist, primarily because it found that the psychiatrist had not seen the Appellant at the time of the Director’s decision. As well, it found that the psychiatrist had made findings not supported by the evidence.
[14] Dealing firstly with the timing of the report, s. 64(1) of Regulation 222/98 specifically provides that a report not provided to the Director that is provided to the Tribunal “shall” be considered by the Tribunal if it relates to the Appellant’s condition at the effective date of the Director’s decision and if it is submitted in a timely manner.
[15] The wording in s. 64(1) and the decision of this Court in Jemiolo v. Director of the Ontario Disability Support Program (2009), 2009 9420 (ON SCDC), 248 O.A.C. 77 (Div. Ct.) state that even a report prepared after the decision of the Director “shall be considered by the Tribunal” if the stated conditions are met. Here, the psychiatrist’s report, although prepared about four months after the Director’s decision, relates to the Appellant’s ongoing condition stating that the Appellant’s condition has been ongoing “for approximately five years”. Thereby, it meets the conditions of s. 64(1). As a result, the Tribunal unreasonably erred in law when it decided not to accept the psychiatrist’s report as relevant because he “did not see the Appellant at the time of the Director’s decision”.
[16] As well, we find that the Tribunal’s finding that there was no evidence of S1 nerve root impingement was not reasonable considering the evidence of S1 nerve root effect on an MRI. The Tribunal stated that the imaging does not confirm “impingement”. However, the imaging report of January 16, 2017 states: “Disc protrusion and minimally indents the anterior thecal sac as well as the anteromedial margin of the right and left S1 nerve roots as they exit the thecal sac”. The interpretation of this imaging result is within the psychiatrist’s expertise with respect to his physical condition as he is trained as a medical doctor.
[17] We note, as well, that the opinion of the psychiatrist with respect to his physical conditions was in keeping with that of Doctors Lentini, a physical medicine specialist, and Bidari, the family doctor.
[18] Thirdly, we find that the Tribunal erred in failing to consider the psychiatric analysis of the psychiatrist and the family doctor’s evidence relating to the Appellant’s depression. In this case, the Tribunal never dealt with the medical opinions relating to depression. That is an error of law.
[19] The above is sufficient to allow this appeal. However, and although we do not make these findings, we express concern that the Tribunal might have interpreted the applicable statutory provision incorrectly.
Conclusion
[20] The appeal is granted and the decision of the Tribunal is set aside. This matter shall be remitted for a rehearing before a new panel of the Tribunal.
[21] No costs were sought; therefore no costs are ordered.
___________________________ Swinton, J.
Doyle, J.
Roger, J.
Date of Release: May 2, 2019
CITATION: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747
DIVISIONAL COURT FILE NO.: DC-18-2424
DATE: 2019/05/02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, DOYLE, ROGER JJ.
BETWEEN:
Marc Charron
Appellant
– and –
Director of the Ontario Disability Support Program
Respondent
REASONS FOR JUDGMENT
THE COURT
Date of Release: May 2, 2019```