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ODSP - Person with a Disability (PWD). Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court cited 'inconsistent fact findings' as an error of law, here findings regarding the issue of non-compliance with medical treatment:[40] Here, the SBT appears to have inferred that Sparks could stop using marijuana but chose not to do so, and to have inferred that because of that choice his impairments were not substantial. This is stereotypical reasoning, inconsistent with SBT jurisprudence, and an error in law.
Issue 3: The SBT based its decision on contradictory determinations
[41] This issue also arises from the manner in which the SBT dealt with the appellant’s substance use disorder. At para. 19 of the SBT’s decision, the tribunal found that Sparks’ impairments were not “substantial ... because the Appellant was not in full compliance with treatment prescribed”, i.e., to cease using marijuana as his physician had recommended. But at para. 22 of the decision, the SBT held that he was not substantially impaired because he was able to overcome an addiction to Percocet with the use of suboxone, leading to the conclusion, at para. 23, that Sparks’ “extensive use of cannabis” weighed against a finding of substantial impairment. In other words, according to the SBT, Sparks’ impairments were not substantial because he was not compliant with treatment for marijuana, and because he was compliant with treatment for Percocet. Such inconsistent findings are an error of law: R. v. R. (D.), 1996 CanLII 207 (SCC), [1996] 2 S.C.R. 291, at para. 50; Trajkovich v. Ontario (Minister of Natural Resources), 2009 ONCA 898, O.J. No. 5466, at para. 18. . Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court considered an ODSP 'person with a disability' (PWD) appeal, which was argued (and allowed) on grounds that "the SBT ignored or misapprehended evidence ... engaged in discriminatory reasoning, ... based its decision on contradictory reasoning, and that it failed to apply the correct test of considering the “whole person” in assessing the substantiality of the appellant’s impairment".
In these important quotes the court cites what they consider to be 'human rights discriminatory' reasoning, here grounded in substance use disorder (a mental impairment) facts:Issue 2: The SBT relied on discriminatory reasoning that blamed the appellant for his disability
[35] The SBT’s discussion of the appellant’s substance use disorder is also problematic. In para. 19 of the decision, after referring to Sparks’ continued use of marijuana despite Dr. Fitzpatrick’s recommendation that he reduce it, the SBT said that it was “not satisfied that the impairments reached the level of substantial ... because the Appellant was not in full compliance with treatment prescribed.” And, at para. 23, the SBT referred to the appellant’s “treatment and extensive use of cannabis, and the contradictory medical evidence” as a basis to conclude he was not substantially impaired.
[36] I have already noted that the SBT never explained where the medical evidence was contradictory. But at least of equal concern is that the SBT blamed the appellant for his substance use disorder, rather than recognizing it, as the physicians did, as a disorder. The appellant also explained that using marijuana eases his anxiety disorder. His use of marijuana isn’t simply a recreational choice but is directly related to his other disabilities.
[37] The SBT appears to have reasoned that because the appellant, with the assistance of medication, was able to wean himself from using Percocet, he should be expected to also do this for marijuana despite his diagnosis, and that his failure to do so meant that his impairments were not substantial. This reasoning is unsupported and discriminatory.
[38] It has long been the law, first established by the SBT itself, that denying benefits to persons who are disabled due to addictions to drugs or alcohol is discriminatory and contrary to the Human Rights Code, R.S.O. 1990, c. H.19. In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, 102 O.R. (3d) 97, at paras. 121 and 125, the Court of Appeal confirmed that s. 5(2) of the ODSPA, which at the time stated that a person was “not eligible for income support if the person is dependent on or addicted to alcohol, a drug or some other chemically active substance”, imposed restrictions “because of assumed or unjustly attributed characteristics and therefore denies the essential human worth of the [respondents] and those like them". In effect, the section created a disadvantage by stereotyping. It has since been repealed: S.O. 2021, c. 25, Sched. 21, s. 25(1).
[39] In many other cases, the SBT has recognized that it is not appropriate to infer a lack of substantiality from a lack of treatment caused by a person’s impairments. Mental health conditions, such as anxiety and depression, or lack of insight into an addiction, can be barriers to persons seeking or following treatment recommendations. 1210-13522 (Re), 2013 ONSBT 4582 (CanLII) at paras. 27-28; 1903-01657 (Re), 2021 ONSBT 1405 (CanLII) at para. 33; 2001-00878 (Re), 2021 ONSBT 1783 (CanLII) at paras. 25-28; 1904-02946 (Re), 2021 ONSBT 2123 (CanLII) at paras. 18-20. Indeed, some SBT decisions have recognized that where an absence of treatment, or failure to follow treatment plans, is attributable to other impairments, this can support a finding of substantial impairment: 1404-04609 (Re), 2015 ONSBT 4919 (CanLII) at para. 39; 1312-13255 (Re), 2015 ONSBT 704 (CanLII) at para. 15; 1410-11883 (Re), 2015 ONSBT 4350 (CanLII) at para. 27.
[40] Here, the SBT appears to have inferred that Sparks could stop using marijuana but chose not to do so, and to have inferred that because of that choice his impairments were not substantial. This is stereotypical reasoning, inconsistent with SBT jurisprudence, and an error in law. . Sparks v. Director of the Ontario Disability Support Program
In Sparks v. Director of the Ontario Disability Support Program (Div Court, 2023) the Divisional Court considered an ODSP 'person with a disability' (PWD) appeal, which was argued (and allowed) on grounds that "the SBT ignored or misapprehended evidence ... engaged in discriminatory reasoning, ... based its decision on contradictory reasoning, and that it failed to apply the correct test of considering the “whole person” in assessing the substantiality of the appellant’s impairment":[17] Section 31(1) of the ODSPA provides a right of appeal from the SBT’s decision to this court on a question of law.
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[19] In Gray v. Ontario (Disability Support Program, Director) (2002), 2002 CanLII 7805 (ON CA), 59 O.R. (3d) 364 (C.A.), at paras. 9 and 10 (“Gray”), McMurtry C.J.O. described the ODSPA as remedial legislation that “should be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities.” Accordingly, as “social welfare legislation serving some of the province’s most impoverished and vulnerable residents” (Surdivall v. Ontario (Disability Support Program), 2014 ONCA 240 at para. 35), “any ambiguity in the interpretation of the ODSPA should be resolved in the claimant’s favour.”
[20] Section 4(1) of the ODSPA, the section in issue in this case, was also in issue in Gray. It states: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. [21] McMurtry C.J.O. noted that “the current definition of a disabled person is much more generous than the previous version.” He pointed out that “the qualifiers ‘major’ and ‘severe’ have been replaced by the more moderate ‘substantial’”. After comparing the ODSPA to federal disability legislation, the Chief Justice stated, at paras. 15-16 of Gray:Compared with its predecessor and with similar federal legislation, it would appear that the current definition of "person with a disability" in the ODSPA was intended to encompass a broader segment of society and to provide assistance to persons with significant but not severe long-term functional barriers.
With respect to the interpretation of the word "substantial" in s. 4(1)(a) of the ODSPA, I am of the view that the word should be given a flexible meaning related to the varying circumstances of each individual case in a manner consistent with the purposes of the Act. [22] Consistent with this approach, determining whether an individual is “a person with a disability” requires consideration of the “whole person” “in the context of her own situation”, including the person's “ability to function in the domains of personal care, community and workplace.” This individual assessment takes into account “the varying circumstances of each individual case in a manner consistent with the purposes of the Act”: Gray, at para. 8; Ontario (Disability Support Program) v. Crane (2006), 2006 CanLII 38348 (ON CA), 83 O.R. 321 (C.A.), at paras. 24-25.
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[29] The SBT did, very briefly, refer the appellant’s evidence of his anxiety at paras. 15 and 17 of the decision. However, it cannot be said, as the respondent submits, that the SBT was weighing competing evidence, as there was no competing evidence. In my view, these conclusions can only have been reached by the SBT because it either ignored the appellant’s evidence, failed to appreciate it, or fundamentally misapprehended it. As discussed above, and as this court has stated in other decisions involving appeals from the SBT, the tribunal errs in law when it disregards, misapprehends, or fails to appreciate relevant evidence: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747, O.J. No. 2300, at para. 12; Jennings v. Minister of Social Services of Ontario, 2015 ONSC 6689, O.J. No. 5603, at para. 41; Housen, at para. 46; Yatar v. TD Insurance Meloche Monnex, 2021 ONSC 2507, 157 O.R. (3d) 337, at para. 28, appeal dismissed, 2022 ONCA 446, O.J. No. 2602, leave to appeal to SCC granted, 2023 CanLII 17178 (SCC).
[30] The SBT’s finding on this issue went to the heart of the decision, as it then concluded that there was a “significant conflict between the IEWS and the Appellant’s testimony.” This so-called conflict was never explained, yet it led to the finding that the “ratings are less reliable” and therefore the appellant had not discharged his onus “of demonstrating that it is more likely than not that he experienced substantial impairment.” If there was a conflict, the SBT ought to have explained it, and explained why it preferred the appellant’s testimony over the medical reports. That would have been weighing the evidence. But instead, the tribunal said there was “no indication” from his testimony to support the ratings and did not weigh the evidence at all.
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Issue 4: The SBT applied the wrong legal test for “person with a disability” by failing to consider Sparks as a “whole person” “in the context of [his] own situation.”
[42] Given my findings above, it is not necessary to deal with this issue. However, the reasons of the SBT, both in what it said and what it failed to say about the appellant, suggest that it did not apply the “whole person” test for “a person with a disability”, which is required if the ODSPA is to be interpreted “broadly and liberally and in accordance with its purpose of providing support to persons with disabilities”: Gray at para. 9. Two examples of this have already been discussed. First, the SBT did not address Sparks’ continuing dependence on marijuana “in the context of his own situation”, as his substance use disorder is related to his anxiety disorder, making it difficult for him to comply with the treatment recommended by his physician. The second example is the SBT’s failure to engage with the appellant’s detailed evidence about how his anxiety disorder disables him, citing only, and unfairly, the fact that he can go into a pharmacy to pick up a pill. . Burnside v. Ontario (Disability Support Program)
In Burnside v. Ontario (Disability Support Program) (Div Court, 2023) the Divisional Court considered a 'person with a disability' (PWD) appeal under the ODSP Act. In these quotes the court reviews leading case law on PWD status:The Law
[29] In Gray v. Director of the Ontario Disability Support Program, 2002 CanLII 7805 (ON CA), at para. 16, the Court of Appeal noted that the interpretation of the word "substantial" in s. 4(1)(a) of the ODSPA “should be given a flexible meaning related to the varying circumstances of each individual case in a manner consistent with the purposes of the Act.”
[30] In Ontario (Disability Support Program) v. Crane, 2006 CanLII 38348 (ON CA) at para. 25, the Court of Appeal once again considered the application of the test in s. 4(1):In summary, s. 4(1) of the ODSPA presents three questions -- substantial impairment, substantial restriction in certain activities, and verification…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. [31] Evidence of medical treatment and investigations is not required for a finding of disability under the ODSPA however, when presented, it is a relevant consideration: Jemiolo v. Ontario Disability Support Program, 2009 CanLII 9420 (ON SCDC) at paras. 11 and 14.
[32] It is not the role of the court in an appeal to reconsider or re-weigh the evidence, or to reconsider the tribunal’s findings regarding the sufficiency of the evidence: Jemiolo, at para. 17. It is the role of an appeal court, however, to consider whether a tribunal disregarded, misapprehended, or failed to appreciate relevant evidence, as this is an error in law: Charron v. Director of the Ontario Disability Support Program, 2019 ONSC 2747 (CanLII), at para. 12; Jennings v. Minister of Social Services of Ontario, 2015 ONSC 6689 (CanLII), at para. 41.
[33] When determining whether to exercise its statutory authority, it is an error of law for a tribunal to fail to take into account relevant considerations or to take into account irrelevant or improper considerations: Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339, at para. 40. . Burnside v. Ontario (Disability Support Program)
In Burnside v. Ontario (Disability Support Program) (Div Court, 2023) the Divisional Court considered a 'person with a disability' appeal under the ODSP Act.
In these quotes, the court reviews statutory provisions involved with the central 'person with a disability' (PWD) finding, related administrative procedures - and Social Benefit Tribunal (SBT) appeals and reviews:Application, Appeal Process, and Standard of Review
[5] Applications for Ontario Disability Support Program (“ODSP”) benefits are reviewed and determined by the Respondent. In order to qualify for ODSP benefits, an applicant must establish that they are a “person with a disability” within the meaning of s. 4(1) of the ODSPA, which provides: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). [6] An applicant who disagrees with the Respondent’s decision is required to apply first for an Internal Review. If they disagree with the Internal Review decision, they may then appeal to the SBT.
[7] Pursuant to s. 23(10) of the ODSPA, the onus is on the applicant to satisfy the SBT that the Respondent’s decision is wrong; the SBT’s analysis is based upon the applicant’s circumstances on the date of the Respondent’s decision. The applicant is permitted, pursuant to Rule 5.11 of the SBT Rules of Procedure, to file new medical evidence for the hearing; to be relevant, the evidence must address the applicant’s medical condition on the date of the decision being appealed.
[8] The ODSPA provides at s. 31(1) that any party to a hearing before the SBT may appeal the resulting decision to the Divisional Court. Appeals are limited to questions of law.
[9] The standard of review in a statutory appeal to the Divisional Court respecting a question of law is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at paras. 17, 37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.
History of the Case
[10] The Appellant applied for ODSP benefits on February 21, 2020. That application was denied on April 3, 2020 after the Respondent found that the Appellant did not have a substantial physical or mental impairment and that he was not experiencing substantial restrictions in one or more of his activities of daily living.
[11] An Internal Review was requested on September 17, 2020 and a decision was made on September 23, 2020 to uphold the Respondent’s decision. The Appellant appealed to the SBT on September 28, 2020, and an appeal hearing was conducted on October 18, 2022.
[12] The decision under appeal was rendered by the SBT on October 21, 2022. The Appellant’s request for a reconsideration of that decision was denied by the SBT on December 21, 2022. At paras 13-28 the court further reviews typical SBT reasoning regarding PWD status.
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