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Simon Shields,
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Return to First Part of Chapter

3. Substance-Dependence (Addiction) Exclusion

(a) Overview

In s.2(b): "Medical Conditions ("Impairments"), I critically reviewed the use of the key term "impairment" within the s.4(1) legal definition of "person with a disability". As some aspects of that definition are used in establishing the "addiction exclusion", some of those uncertainties transfer themselves to this latter discussion.

What I call the "substance-dependence exclusion" or "addiction exclusion" reads as follows [Act s.5]:
s.5(2)
A person is not eligible for income support if,

(a) the person is dependent on or addicted to alcohol, a drug or some other chemically active substance;

(b) the alcohol, drug or other substance has not been authorized by prescription as provided for in the regulations; and

(c) the only substantial restriction in activities of daily living is attributable to the use or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility.

s.5(3)
Subsection (2) does not apply with respect to a person who, in addition to being dependent on or addicted to alcohol, a drug or some other chemically active substance, has a substantial physical or mental impairment, whether or not that impairment is caused by the use of alcohol, a drug or some other chemically active substance.
....................
Case Note:
The facts behind the case of Ontario Disability Support Program v. Tranchemontagne (Div Ct, 2009) [affirmed in Ontario (Disability Support Program) v. Tranchemontagne (Ont CA, 2010)], after having once-visited the Supreme Court of Canada in 2006, then returned to Ontario courts. There it was decided in the above-cited cases - on the facts of applicant's situation - that the alcoholism exclusion violated the ODSP applicant's right to be free from discrimination in services with respect to disability under the Human Rights Code.

Care must be taken when interpreting these cases to note that this does not amount to a 'strike-down' of these provisions. They are still valid law, and in each appeal where an applicant wishes to challenge the substance-dependence exclusion (or any other issue of Code discrimination), they must do so on a case-by-case basis. In response to the earlier Tranchemontagne cases the Social Benefits Tribunal established new procedures to advance such Code arguments [see Ch.12, s.8].
(b) Analysis

The first observation to be made here is that this is a 'categorical' exclusion which stands separate and apart from the primary s.4(1) [Act] "definition" or criteria for a "person with a disability" (PWD). Thus it is entirely legally consistent for a person to meet all of the criteria under under s.4(1) for PWD status (and in law to BE a "person with a disability"), but also to be excluded from receiving income support if they also meet the criteria for the "addiction exclusion" under s.5. This odd result emanates from the consequences set out when the addiction exclusion operates: "(a) person is not eligible for income support if..." [Reg s.5(1)].

Further - as can be quickly seen - the 'exclusion contained in s.5(2) [Act] is itself 'excepted' (ie. avoided) if s.5(3) [Act] operates (in essence: the 'exclusion' itself has an 'excrption'). As discussed later, this legal structuring has significant (and widely misunderstood) implications for the operation of the 'addiction exclusion'.

Further observations include:
  • the three s.5(2) exclusion criteria are cumulative (ie. ALL three must be satisfied in order for the exclusion to operate) ("cumulative conditions");

  • the first s.5(2) condition only operates when a 'substance addiction' (also medically referred to as a "substance dependence") is diagnosed - NOT when the closely-associated (and common) diagnosis of "substance abuse" is made [note that "substance" as used here includes alcohol] ("dependency NOT abuse");

  • the second s.5(2) condition operates for addictions to non-prescriptions drugs - so addictions to drugs that are (or should be) properly-prescribed [Reg s.48] (overwhelmingly painkillers like percocet) do NOT trigger the operation of the exclusion ("non-prescription drugs only");

  • the third s.5(2) condition ("ADL impact exclusively due to addiction") is present when any substantial functional restriction that may exist is exclusively caused by "the use or cessation of use of the alcohol, drug or other substance at the time of determining or reviewing eligibility" ("substance use or discontinuance sole cause of ADL restrictions").

  • the s.5(2) "addiction exclusion" is completely excepted when there is ANY additional substantial impairment (medical condition) - OF ANY NATURE WHATSOEVER (ie. including those that are substance caused) [s.5(3)]. In other words, "multiple addicts" avoid the "addiction exclusion" (a quite counter-intuitive result)("single-substance addiction is sole medical condition").

    Note:
    The s.5(3) exception reveals once again the poor drafting endemic to this aspect of the legislation. Throughout the primary [s.4(1)(a),(b) AND (c)] PWD definition it speaks of "impairment" (singular) - as though it referred to a person's medical profile in an aggregate sense. Now in s.5(3) we are necessarily speaking in the plural (ie. 'impairments') - for how else can we make sense of the reference to an 'additional' impairment in s.5(3)? This sudden shift to the plural further justifies the earlier equation of "impairment" with the conventional medical concept of 'diagnoses' or 'medical conditions' as discussed above, in s.2(b): "Medical Conditions ("Impairments"): Preliminary Comment".
(c) Summary of the "Addiction Exclusion"

To summarize then, the "addiction exclusion" operates ONLY when ALL of the following facts are present:
  • there is only one medical condition present,

  • that single medical condition is a SINGLE-substance addiction (eg. alcoholism alone, cocaine dependence alone, etc) - NOT multiple substance addictions,

  • the single addiction is to a non-prescription substance, AND

  • the single addiction is the sole cause of any substantial functional (ADL) restrictions present.
Further (and this is a CHRONIC MISUNDERSTANDING), due to the structuring of both s.5(2) and 5(3), the failure of the "addiction exclusion" to operate [for either lack of any s.5(2) condition OR the operation of s.5(3)] means that ANY present substance-related medical conditions (eg. alcoholism, drug addiction - or either drug or alcohol abuse ["abuse" is a separate medical diagnosis]) MUST be assessed as "legitimate" medical conditions AND their impact weighed for its contribution to the presence of a substantial functional (ADL) restriction. The persistent position of DAU medical adjudicators that anything substance-related and their functional impacts must be disregarded in assessing PWD status is simply WRONG.

(d) Is the "Addiction Exclusion" Illegally Discriminatory?

If the above legal analysis of the "addiction exclusion" is sound just as a matter of straight statutory interpretation, then the (remaining) exclusion is slim indeed.

That said, the existence of any form of "addiction exclusion" reflects fundamental medical misunderstanding as to what substance-related conditions by their nature are - which is 'volitional handicaps' - or medically-recognized handicaps of one's "will". Such people need help, not punishment.

Thankfully, the issue has been frontally addressed in the Tranchemontagne series of cases which worked their way up to - and back down again - from the Supreme Court of Canada (SCC). The SCC held that the SBT has jurisdiction to consider and apply the Ontario Human Rights Code [hallelujah!] and sent the case back down to the Tribunal for re-hearing. A fuller history of these cases is set out at Ch.12, s.8 [Appeals and Other Remedies: Ontario Human Rights Code], but the result is that the s.5(2) addiction exclusion has been found to violate the Human Rights Code's disability discrimination provisions (a Decision upheld by the Divisional Court in 2009).

What is essential to understand however is that s.5(2) has NOT been 'struck down' in law as it might be under the Charter before a court. The (tedious and pointless)result is that Code arguments challenging s.5(2) must be advanced in each and every case where the issue occurs. Again, refer to the above-cited section for a full consideration of the present status of law on this important subject.

(e) Hearing Tactics

. Overview

The social stigma attached to addictions, the legal existence of the addiction exclusion, and its chronic misapplication by the Disability Adjudication Unit have all contributed to a strong tendency amongst ODSP applicants, SBT appellants (and some of their counsel) to avoid or downplay the issue.

In my opinion, backed by the experience of hundreds of such cases before the Tribunal - this is a grave tactical error. The "addiction exclusion" on its face is so limited in scope that - properly argued - it is the rare medical fact situation that will run afoul of it.

. Use the Addiction Evidence Positively

First, recall from the discussion above that whenever the "addiction exclusion" IS avoided, that any substance-related conditions are immediately 'converted' into legitimate medical conditions which contribute by their existence and functional impact towards a finding of "person with a disability" status. Thus downplaying or avoiding the evidence risks weakening one's case for that fact alone.

Further, the open acceptance and embracing of substance-related problems by the appellant before the Social Benefits Tribunal allows one's evidence to be presented in a full and honest manner - thus attaining the most important element required of any appellant before any civil Tribunal: credibility. There is no element of moral fault relevant to the legal test for PWD status. The Tribunal grants eligibility to saints and sinners alike [I personally have successfully represented life-long criminals, former monks and nuns, prostitutes, ... even lawyers (how low can one get?)!]. In short - it is my strong recommendation that appellants neither conceal nor downplay any substance-related conditions, but advance them as you would any other medical conditions.

. Where Necessary Argue the OHRC

In any case where the appellant foresees running afoul of the "addiction exclusion", reserve the right to advance a Human Rights Code override of that provision as is set out in Ch.12, s.8: "Appeals and Other Remedies: Ontario Human Rights Code" (you MUST review the linked Tribunal "Practice Direction" on HRC arguments).

However, as such hearings are "bifurcated" as set out above, it is only in the rare case where the conventional legal arguments around the "addiction exclusion" do not work that one will be required to fully prepare and argue the HRC issues.

. Consent to a Trusteeship

Further, it has been my practice in any case with an element of substance addiction or abuse in the medical profile (if of course the appellant consents) to have the appellant execute and file with the Tribunal the consent portion of an ODSP "Appointment of Trustee" form - thus illustrating their willingness to have some external control exercised over them in this regard. Many Tribunal members - particularly the more conservative ones - find that such a commitment addresses their concerns that the "program ... [be] accountable to the taxpayers of Ontario" [Act, s.1(d)].

If you cannot locate a copy of the "Appointment of Trustee" form (Form 1046), simply file a brief signed statement attesting to the appellant's consent to have a trustee appointed under "s.12(1) of the ODSP Act", should eligibility be granted. Have this signed and either pre-filed with other medical evidence [see s.4(g): "Appeal Case Preparation: Disclosure of Medical Evidence"] or just signed in front of the Tribunal and entered into evidence at the hearing.


4. Appeal Case Preparation

(a) Overview

This section outlines key organization and preparation issues involved in an ODSP medical eligibility ("person with a disability") appeal to the Social Benefits Tribunal (SBT). Full procedures for SBT appeals are covered in Ch.12: "Appeals and Other Remedies", and should be reviewed in detail.

(b) Director's Submissions

It is the invariable practice of the Director in a PWD appeal to assemble documentary evidence and written submissions together in one package: the "Director's Submissions". A copy of this is then served on the other parties typically the appellant) and filed with the Tribunal in accordance with the appropriate timelines [see Ch.12, s.1(n): "Appeals and Other Remedies: Appeal Process: Evidence and Submissions Disclosure"].

The "Director's Submissions" package usually contains copies of the following documents, in this order:
  • 10 or so pages of legal argument (Note: except in rare cases these are standardized legal arguments filed in identical form in thousands of such appeals; for that reason people rarely read them anymore; unrepresented parties tend to find them intimidating - BUT shouldn't);

  • key correspondence in the matter both from and to the appellant (ie. initial refusal letter, request for internal review, internal review decisions, etc):

  • the Health Status and Activities of Daily Living Report (HS/ADL Report), completed by the appellant's medical professional/s;

  • the appellant's Self-Report (if any), filed by them in the initial application;

  • any additional documentary evidence filed in support of the application (almost always additional medical documentation obtained from the appellant's medical file and filed by them or their counsel);

  • the medical adjudicator's one or two pages summary of their decision in the matter, usually with brief reasons.
The Director's Submissions are useful in providing the appellant with the key documentation filed to date in an appeal, and also to advise them what medical documentation has already been filed with the Tribunal.

Note that additional medical documentation filed with the DAU after the Director's Submissions are prepared (and thus NOT included in them) will have to be filed with the Tribunal (and served on the DAU) by the appellant 30 days before the hearing (note there is a three-day mail service delay as well) [see Ch.12, s.1(n): "Appeals and Other Remedies: Appeal Process: Evidence and Submissions Disclosure"].

(c) Appellant's File Organization

In my own practice I organize documentation for an ODSP "person with a disability" (PWD) eligibility appeal as follows:
  • Director's Submissions (as described above; retain it in its original order as it is often referenced in that form at an appeal hearing);

  • Medical Document List: a numbered list of ALL (even the ones already in the Director's Submissions) medical documentation held, identified by:

    - nature of document (eg. specialist reports, blood tests, clinical test results);

    - date of authorship/creation;

    - description and author/creator;

    - number of pages (important as pages are sometimes lost);

    - immediate source (ie. where I got it from);

    - date received (ie. when I got it)

    - date filed and served (ie. date it was served on the DAU AND filed with the Tribunal)

    I hand-number all documents in the top right-hand corner as per this list, and clip them all together in a large package with the list on top. That way photocopying is easy, and when the documents are served and filed they have a consistent numeration, which facilitates referencing them at the hearing. As well, this helps in keeping track of what documents have and have not yet been filed and served.

    I also normally file the list itself and do not 'double-file' documents already included in the Director's Submissions, to reduce the member's paper load.

    It is common to file two or three subsequents batches of medical documentation in the course of preparing for a hearing. All such packages should include a DATED cover letter: identifying the appellant, the appeal file number, and that the documents are being filed for use in the pending hearing. These will be kept by the Tribunal as they are filed and can be referenced in argument by the date of the cover letter (eg. "my supplementary evidence package of 12 August 2005").

  • Medical Merits Review: a two-page summary identifying and including:

    - the "target date" (the date of the Director's refusal of eligibility, which is almost always the date at which the Tribunal will be considering the appellant's medical conditions for medical eligibility purposes);

    - the medical conditions being considered ("impairments"), along with numbered references (from the "Medical Document List", above) to the documents which verify them, and their duration;

    - Key details of the DDP, including: its author/s, the number of years the author treated the appellant, and the date of the HS/ADL Report;

    - An "ADL" (Activities of Daily Living") Summary: an abstract of good and bad ADL references and ratings throughout the medical documentation, along with numbered references (from the "Medical Document List", above) to the documents which contain them;

    - A list and details of social factors (ie. age, education and work experience);

    - several blank lines for additional comments or tactical planning.

  • Questionnaire [for recording the appellant's (and any other witnesses) direct evidence, as described and linked in s.2(e) "Functional Restrictions", above].
Good preparation of all of these documents greatly aids time efficiency in preparing for the hearing, and provides quick and efficient access to all key facts and evidence at the hearing itself.

(d) Obtaining Medical Evidence

An essential part of any ODSP medical eligility appeal (actually it should be done to assist at the application stage as well) is to obtain all of the appellant's reasonably current pre-existing medical documentation [generating new medical documentation is discussed next: s.4(e) "Supplementation and "Repair" of Medical Evidence"].

Unless the appellant's medical profile suggests it as advisable, I rarely seek medical records more than 5 years old. Most anyone being treated for serious conditions will have verifying documentation within that period.

It is a typical medical practice for treating GPs to obtain previous medical files from any previous GPs, and for specialists to send copies of any reports that they generate to the current GP. As such, a request to the present GP is usually adequate to obtain all relevant existing medical records. However where there is reason to suspect that the records are not consolidated in this fashion, use common sense in determining what other sources are worth the effort of tracking them down.

Linked here is a my standard template letter for such request: Medical Request letter. It can also includes a section for requesting the creation of any additional/supplemental medical reports required [as per s.4(e) below]. Note that all medical professionals responding to such requests will charge a service fee for copying, and more for specially-created reports. These typically range from $25 to $250, depending on the size of the file and the particular physician or hospital. In my experience, the most expensive (and sometimes outrageous) file charges are from large urban hospitals. Unrepresented parties should communicate closely with the doctor's offices and cultivate sympathy from staff to reduce such charges.

A standard medical release form (which must accompany ALL such requests) is linked here as well Consent to Disclose Personal Health Information.

This form complies with the new Personal Health Information Protection Act, 2004, and is adequate for psychiatric records as well as general medical records. Note that the old Mental Health Act "Form 14s" are now phased out.

(e) Supplementation and "Repair" of Medical Evidence

A good comprehension of all the elements of PWD status and their need for verification by appropriate medical professional [see all of s.2 "Legal Elements of PWD Status", above] should - after examination of the existing medical evidence - reveal any shortfalls in the medical evidence or areas in which clarification is desired.

These appeals are often conducted in an atmosphere of time pressure, and there are pre-filing deadlines involved [see s.4(g) "Disclosure of Medical Evidence", below]. PROMPTLY on such shortfalls becoming apparent a quick, concise and polite letter should be directed to the appropriate medical professional requesting what is required.

If I even anticipate a shortfall in the medical evidence (usually when inquiries of the client reveal an under-treated area of concern) I usually include WITHIN my standard medical file request letter a further request for either a specialist referral (which will generate a report back to the GP which I then obtain a copy of) or a supplementary medical report written by the GP. Often (though with the advantage of legal aid funding), I request a specialist or GP to generate a special report addressing elements of concern. The standard legal aid funding for this is $150 for a GP report and $250 for a specialist report (usually psychiatric).

Omissions in the "duration" element in the HS/ADL Reports (discussed in s.2(c) above] are a very common area where "repair" is required. So are clarifications of the "date of onset" of key medical conditions.

While family doctors are qualified medical professionals to verify all areas of both diagnoses and functional restrictions, in most areas of significant concern I prefer to have a direct report from a specialist - particularly where there are psychiatric conditions present or suspected.

Note that the Tribunal is expressly prohibited from adjourning a hearing to allow the appellant "to obtain further [medical] reports" [see Ch.12, s.1(l): "Appeals and Other Remedies: Appeal Process: Adjournments" for other potential grounds and procedures for adjournments][Reg s.64(3)]. That said, reports already in hand (ie. already "obtained") at the date of the adjournment request do not bar the Tribunal from adjourning so that the reports might be properly served and filed [see s.4(f) "Disclosure of Medical Evidence", below].

(f) Problems with Medical Professional Compliance

While it is rare, it does sometimes happen that an important but hand-completed medical report received from a file request is quite illegible. In such cases you are left with little recourse except to politely write the doctor, including a copy of the problem document, and ask that it be transcribed in type-written form, re-signed (and originally-dated) and returned to you within the time you need it.

Requests for medical records and reports are a low priority for doctor's offices. Sometimes delays in complying with a request are so prolonged that you are pressed against your own deadlines. In my experience it is common to have to write several supplementary "prompt" letters (and even phone calls) before records are received. In such situations you are usually not dealing directly with the doctor but with their secretary. Politeness and understanding go a long way to getting what you need in these situations - though there are limits.

"Deadlines" by which YOU (NOT the Tribunal) require the documentation (so that you in turn can have time to review, copy, serve and file it) should be specified in ALL such letters, from the beginning. DO NOT give them your hearing date as they often view this as the "deadline", leaving you with a late filing! Once a deadline is passed I move to consideration of summonsing the medical professional to compel their personal attendence at the hearing. This is always a mixed solution as you may end up with a very unhappy and thus antagonistic witness. Note however that a doctor's testimonial evidence (ie. in person) does not come under the pre-filing documentary disclosure rules (ie. it can just be called into evidence from them personally, without any prior notice).

The following links may be useful in such situations:

Administrative Law (Ontario)(SPPA): Ch.6, s.9: Evidence: Witnesses

College of Physicians and Surgeons: Confidentiality of Personal Health Information

College of Physicians and Surgeons: Policy re Third Party Reports

In the event that you are completely unable to obtain compliance, your file copies of letters and phone call notes of these numerous requests will evidence to the Tribunal your best efforts to obtain the evidence and should dispel any 'negative evidentiary inference' from your not producing such documentation.

(g) Disclosure of Medical Evidence

Any documentary medical evidence to be used at a PWD hearing should be both "served" on the Director (at the Disability Adjudication Unit's office - see your file correspondence), and "filed" with the Tribunal.

The pre-filing deadlines for medical (or any) documentation are dealt with in Ch.12, s.1(n): "Appeals and Other Remedies: Appeal Process: Evidence and Submissions Disclosure"]. For MEDICAL documents the standard pre-filing timeline is 30 days - though allow a three-day mail delay if you are mailing them in.

It has been my professional practice for years to file ALL relevant medical documentation in a file - EVEN if it hurts the case. While there is no legal duty to do so (lawyers will have to struggle with the Rules of Professional Conduct themselves on this issue), I have found that the filing of weak reports almost invariably HELPS the case as it shows the Tribunal member that the appellant is being completely honest and forthcoming. As I have said earlier, the most important thing to demonstrate before any civil court or tribunal is credibility. Complete disclosure is an excellent and easy way to get just that.


5. PWD Appeal Hearings

Appellants should take heart in that there is a high success rate amongst well-conducted PWD (Person with a Disability) appeals.

General hearing procedures before the Social Benefits Tribunal are covered extensively in Ch.12: "Appeals and Other Remedies". That chapter should be reviewed carefully, as should all of this present chapter. Advocates should review Ch.15: "Advocacy" as well.

Particular issues with PWD ("person with a disability") ODSP medical eligibility appeal hearings include:
  • (in my opinion) appellants should almost always resist having such hearing conducted by way of (the new) electronic hearing procedures [see Ch.12, s.2(d): "Appeals and Other Remedies: Appeal Hearings: Electronic (Telephone) Hearings];

  • any case involving substance-related medical conditions (ie. alcohol or drug dependence or abuse) should review s.3 "Substance-Dependence Exclusion", above - and should at least consider using the Human Rights Code procedures referenced there.

  • the Social Benefits Tribunal hears more PWD appeals than any other type of social assistance appeal, so the members are typically intimately familiar with the legal issues involved (though some can be weak on substance-related conditions treatment), therefore do not put a lot of effort into making legal submissions on the basic law of PWD eligibility unless you are making unique arguments;

  • if you are unrepresented, be aware that the procedures of the SBT are meant to be non-threatening and accomodating to people without legal training. Further, there is no dress code expectation and most people (often counsel as well), show up casually dressed. With unrepresented parties most Tribunal members are prepared to take an active role in extracting evidence necessary to decide PWD status.

  • all appellants (represented and unrepresented) should strongly consider using a direct evidence guide such as the Questionnaire linked here [see s.2(e): "Legal Elements of PWD Status: Functional Restrictions", above].

  • prompt and thorough obtaining, reviewing, filing and serving of all current (last five years) medical documentation is KEY to winning any PWD appeal;

  • whenever psychiatric conditions are part of the diagnostic profile, appellants and their advocates should be familiar with the standard medical text on psychiatric diagnoses, the "Diagnostic and Statistical Manual, 4th edition" (aka "DSM-IV"). In my practice I frequently copy relevant passages of the DSM-IV and include them in the medical documentation to assist the Tribunal in grappling with often misunderstood areas of medical diagnosis (particularly substance-related diagnoses such as "dependence" and "abuse"). The Tribunal also has a copy of this text available in their in-house library.;

  • the Tribunal almost always "reserves" their Decision in PWD cases and is required to deliver a written ruling within 60 days after evidence is last taken in the case [Reg s.67(1)].

6. Post-Grant Procedures

(a) Overview

The appeal Decision - on the last page - will indicate either "appeal denied" or "appeal granted".

Appellants whose appeals have been denied should IMMEDIATELY consult a lawyer and review Ch.12: "Appeals and Other Remedies" regarding the various further steps available, including: reconsideration, court appeal and re-applications.

Appellants who have been successful can expect their ODSP file (held at the Disability Adjudication Unit) to be transferred to their local ODSP office ODSP Office List. That office will request an abstract of any welfare (Ontario Works) that the appellant has been receiving since their ODSP application was completed (as that amount will be re-paid to welfare out of the ODSP retroactive payments). When that is received the local ODSP office will send the new recipient a letter, scheduling an intake meeting and advising of what documents to bring [see Ch.10: "Applications and Procedures"] (it will be much like a welfare intake meeting).

Successful appellants should have regard particularly to two issues (discussed below):
  • date of grant; and
  • review date (if any).
(b) Date of Grant

. Overview

"Date of grant" is the date at which a recipient's ODSP eligibility commences. It is immediately relevant after a successful PWD appeal to calculate the recipient's retroactive entitlement.

In past it has been the practice of the Tribunal to assign a "date of grant" in a Decision simply by referring to "s.17 of the ODSP Regulation", which had a fixed, invariable formula for its determination.

With legal changes to the "date of grant" rules in May of 2006 [see Ch.10, s.4: "Applications and Procedures: Date of Grant"], the Tribunal may continue this practice or may instead specify a precise date right in the Decision. Regardless of how they do this, in practically ALL cases you can expect this date to be the date that the completed DDP ("Disability Determination Package") was filed with the Disability Adjudication Unit.

. Date of Grant Other Than Date Application Complete

However where the Decision simply refers to "s.17 of the ODSP Regulation" the May 2006 changes have given the Director (operating through the DAU) discretion to set a date of grant either before, at or after the date that the application is complete [the date that the completed Disability Determination Package (DDP) is given to the DAU]. Again - even under this exercise of discretion appellants can expect in the vast majority of cases that the "date of grant" will be the same date that the application is completed.

If however the "date of grant" is set AFTER the date that the application is complete then the recipient may further appeal that decision. Note though that Director decisions to set the date of grant AT OR BEFORE the date that the application is complete are NOT appealable [Ch.11, s.4(d): "Director Decisions: Appealability and Non-Appealability: Date of Grant"].

"Date of grant" appeals should be conducted separately from the appeal which resulted in the pre-hearing grant of eligibility. While it might be tempting to continue with the present appeal (which is conveniently close at hand), there is always the risk that the Tribunal may view things differently from the DAU and deny eligibility altogether. The effect of a Tribunal order conflicting with a DAU grant is legally uncertain [Act s.26(3)(4)] - but it is best not to complicate matters. Launching a separate appeal ensures that the pre-hearing grant is preserved, subject only to a possible improvement in the date of grant. Such an appeal should of course be of the "date of grant" issue alone.

(c) Medical Review Date

. Overview

Sometimes (not always) the Tribunal will also specify a "medical review date" in their Decision. If not then the Director will set one at their discretion.

Essentially a "medical review date" determines the period for which the recipient's medical (PWD) status is "good". The "medical review date" is of course the date at which the DAU (Disability Adjudication Unit) will want the recipient to complete a fresh DDP (Disability Determination Package) and be medically re-assessed. If the PWD status is confirmed, then eligibility simply continues.

If PWD status is denied then the (former) recipient is in the same position as someone who has applied for initial ODSP eligibility and denied. Such persons should review Ch.12: "Appeals and Other Remedies" promptly for any appeal, reconsideration or re-application remedies available to them.

. Duration

Both the Director (through the Disability Adjudication Unit) and the Tribunal(depending who is making the decision at the time) have broad discretion as to how far ahead they set the "medical review date" [Reg s.5(1)]. A standard default date of two years tends to be applied, though it can as little as one year - or completely "waived" (ie. permanent).

Note that as a practical matter the DAU is so backlogged with original disability adjudications that they are way behind on medical reviews. Most recipients find that their "medical review date" comes and goes without any notice. Of course this does not mean that ODSP eligibility is permanent, just that the review will be delayed by an uncertain amount of time.

. Practice

The time between when a new DDP is sent out for completion and when it is required to be returned is typically 90 days [subject to discretionary extension by the Director on request of the recipient: Reg s.5(3)]. As this is a short time in which to fully prepare full "new" medical documentation, recipients should always keep in mind the necessity to freshly document their medical status on an on-going basis. Do not expect lenient treatment when requesting extended time in these "reviews" situations (compared to original applications situations), as income support continues to paid during the time required for a review.

My standard suggestions to recipients anticipating a review date are to keep all their required medical appointments, ESPECIALLY SPECIALISTS - and to periodically remind doctors that they will be needing fresh medical documentation at some point in the future. When the DAU request for a fresh DDP comes, advise your main treating medical professionals of this at once. Get the new HS/ADL Report to your selected medical professional/s at once for completion - AND seek updated specialist reports as required. The cheapest way to get a specialist report is to ask the specialist to do an updating 'report' to your GP and get a copy of that. Copies of all updated medical reports should be provided to DAU along with the completed DDP.


7. Divisional Court Appeals

(a) Overview

Anyone considering a further appeal to the Divisional Court after an unsuccessful Tribunal appeal should immediately consult a lawyer and review Ch.12, ss.3 and 4. "Appeals and Other Remedies: Reconsiderations" and "Appeal to Divisional Court". Typically legal aid clinics will consult for these purposes, but you must seek such consultation IMMEDIATELY on learning of any negative Tribunal decision as deadlines apply.

(b) Grounds of Court Appeal

. Overview

The legal system tends to divide legal issues into those of "facts" and those of "law".

Issues of fact deal with the findings of fact of first-level judicial tribunals: ie. assessing the credibility of conflicting evidence and deciding which evidence is to be preferred (and thus found to be the "facts"). Issue of law in contrast deal in abstract principle of law divorced from the individual facts of a case; they almost always apply generally to case situations - not just the one before the court.

While the grounds for an appeal to Divisional Court are limited to "questions of law" [Act, s.31], it is common for appeals to be launched (and periodically won) on what amount to 'fact grounds' only. This is because case law has held that extreme mistakes in fact-finding (commonly described as "palpable and overriding" errors) themselves constitute "legal error".

As a consequence the most common type of ODSP case brought to the Divisional Court is a 'fact-based' case, arguing that the fact errors were so extreme as to justify the court hearing them. Most of these cases are unsuccessful, and the results are highly dependent on the demeanour and inclinations of the particular judges sitting on the (typically three-judge) panel hearing the case.

. Comment

Before being launched, such cases call for critical review of an experienced lawyer who can plainly and objectively parse out the issues involved in a case. In all such situations however be aware of the short appeal timelines that may apply to your situation - another reason to consult a lawyer RIGHT AWAY.

In my opinion it is common for unrepresented parties to have a high opinion of their chances on a court appeal, due either to a lack of comprehension of the law, being too close to the facts - or wishful thinking. Much time and effort can be wasted by such parties pursuing these illusions that are better spent in exploring and improving their case for a re-application.

. Case Law

In Equity Waste Management of Canada v Halton Hills 35 O.R. (3d) 321 (Ont CA, 1997) the Court of Appeal (Laskin J) described the rare instances where a factual error may justify appellate review:
What is important for this appeal is the kind of error that justifies intervention by an appellate court. An error of law obviously justifies intervention. An appellate court may interfere with a finding of fact if the trial judge or motion judge disregarded, misapprehended, or failed to appreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the
evidence.
Courts are willing to characterize fact treatments as legal issues in order to do justice, as the following cases reflect. In Sampson v Ontario (Director, ODSP) [2002] OJ #838 (QL) (Div Ct) when a Tribunal "disregarded or failed to appreciate relevant evidence" (a medical report), this was legal error justifying intervention. In Re McLeod [1977] OJ #508 (Div Ct) a complete absence of evidence to support the Board's conclusion of spousal status was a legal error which opened the way for appellate court review. In Thomas v Ontario (ODSP) [2004] OJ #2702 (QL) (Div Ct) the failure of a Tribunal to make findings of fact on three key medical reports was legal error justifying the granting of an appeal.

That said, the recent case of Sheldrick v ODSP (Ont CA, 2008) is a good example of how different courts can reach different conclusions on the issue of whether misapprehension or mistreatment of evidence can constitute an 'error of law', thus inviting the court to intervene. While the Divisional Court relied on the Tribunal's failure to apply uncontradicted GP and psychologist evidence (and thus granted PWD status), the Court of Appeal in a brief endorsement simply disagreed, stating:
Respectfully, we do not agree with the Divisional Court that the Tribunal was either required "to accept" that evidenvce or that it disregarded or failed to appreciate the relevant medical evidence.
A useful judicial comment on the extent to which legal fact-findings and reasoning must be included in ODSP PWD appeals was made by the court in Gallier (cited above):
In arriving at its decision, the Tribunal found that the applicant was, "a person with a disability" eligible for allowance under the Ontario Disability Support Program. It is our view that the Tribunal need not use specific wording in coming to its conclusion. It is sufficient it is apparent from the decision read as a whole that the Tribunal considered all relevant principles and applied them to its factual determinations. The Tribunal's reasons complied with s. 67(2) of the Regulations under the Ontario Disability Support Program Act, S.O. 1997, c.25 (ODSPA) which required the decision to include the principal findings of fact, and its conclusions based on those findings.
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