Fournier v. Disability Support Program (Ont.), (2013) 309 O.A.C. 186 (DC)

• Judge: Sachs, O'Neil and Thomas, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: April 18, 2013
• Jurisdiction: Ontario
• Citations: (2013), 309 O.A.C. 186 (DC);2013 ONSC 2891

Fournier v. Disability Support (2013), 309 O.A.C. 186 (DC)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. AU.014

Ellen Fournier (appellant) v. Director of the Ontario Disability Support Program of the Ministry of Community & Social Services (respondent)

(DC-12-1812-0000)

Pauline Storie (appellant) v. Director of the Ontario Disability Support Program of the Ministry of Community & Social Services (respondent)

(DC-12-1811-0000)

Monique Vibert (appellant) v. Director of the Ontario Disability Support Program of the Ministry of Community & Social Services (respondent)

(DC-12-1810-0000; 2013 ONSC 2891)

Indexed As: Fournier v. Disability Support Program (Ont.)

Court of Ontario

Superior Court of Justice

Divisional Court

Sachs, O'Neil and Thomas, JJ.

June 14, 2013.

Summary:

Three applicants applied unsuccessfully for medical travel benefits to cover the travel costs of attending a therapeutic Aquafitness program. The applicants each appealed. The Social Benefits Tribunal denied the appeals, confirming the view of the Director of the Ontario Disability Support Program of the Ministry of Community and Social Services that the Aquafitness program was not a "medical treatment" for the individual applicants and was not "reasonably required" within the meaning of s. 44(1)(iii.1) of Ontario Regulation 222/98. The applicants appealed. The appeals were heard together.

The Ontario Divisional Court allowed the appeals and remitted the applications back to the Tribunal. The court directed the Tribunal that, with respect to each applicant, the specialized program was a "medical treatment" as that term was used in the Regulation. The court further directed that the Tribunal should not require that the applicants provide further evidence of alternative programs or alternative funding sources in the Tribunal's assessment of whether the proposed transportation was "reasonably required" under s. 44(1)(iii.1).

Government Programs - Topic 5272

Health and social services - Disabled persons - Benefits - Transportation costs - Three applicants applied unsuccessfully for medical benefits to cover the travel costs of attending a therapeutic Aquafitness program - The Social Benefits Tribunal denied the applicants' appeals, confirming the view that the program was not a "medical treatment" within the meaning of s. 44(1)(iii.1) of Ontario Regulation 222/98 - The Ontario Divisional Court allowed the applicants' appeals - The Ontario Disability Support Program Act was remedial legislation and, as such, had to be interpreted broadly and liberally and in accordance with its purpose of providing support to persons with disabilities - As social welfare legislation, any ambiguity was to be resolved in favour of the applicant seeking benefits - It was important to recognize and respect the Act's benevolent purpose and that the Ministry of Health had recognized an evolution in treatment practices that supported those persons suffering from long-term mental illness - Applying a purposive approach, "medical treatment" would include the Aquafitness program - It was medically prescribed by a physician, therapeutic and beneficial to the patients, supervised by a psychiatrist, and administered and adapted to individuals by mental health caseworkers - The benefit could be expressed in medical terms by the prescribing doctor - To decide otherwise would be to ignore the legislation's intent and allow for a strict interpretation that was not defensible in policy or practice - See paragraphs 48 to 63.

Government Programs - Topic 5272

Health and social services - Disabled persons - Benefits - Transportation costs - Three applicants applied unsuccessfully for medical benefits to cover the travel costs of attending a therapeutic Aquafitness program - The Social Benefits Tribunal denied the applicants' appeals - The applicants appealed, asserting that the Tribunal erred in suggesting that s. 44(1)(iii.1) of Ontario Regulation 222/98 required that they provide evidence that no alternative program or activity would provide the same benefits and that they explore what other agency might more appropriately bear the travel costs - The Ontario Divisional Court allowed the appeals - Once it was determined that the transportation was for a "medical treatment" the applicant only had to prove that the cost was not otherwise reimbursable and was over $15 per month - "Reasonably required" in s. 44(1)(iii.1) could not be seen to mean that the applicant carried a further burden to exhaust all other activities and to search all other pockets - See paragraphs 64 to 68.

Government Programs - Topic 5278

Health and social services - Disabled persons - Appeals - Three applicants applied unsuccessfully for medical travel benefits to cover the travel costs of attending a therapeutic Aquafitness program - The Social Benefits Tribunal denied the applicants' appeals, confirming the view that the Aquafitness program was not a "medical treatment" for the individual applicants and was not "reasonably required" within the meaning of s. 44(1)(iii.1) of Ontario Regulation 222/98 - The applicants appealed -The Ontario Divisional Court held that the decisions were reviewable on the standard of correctness - See paragraphs 37 to 45.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See first Government Programs - Topic 5272 ].

Statutes - Topic 502

Interpretation - General principles - Purpose of legislation - Intent of Parliament or legislature - [See first Government Programs - Topic 5272 ].

Statutes - Topic 523.1

Interpretation - General principles - Benefits-conferring legislation - [See first Government Programs - Topic 5272 ].

Statutes - Topic 530

Interpretation - General principles - Social or economic policy considerations - [See first Government Programs - Topic 5272 ].

Statutes - Topic 1414

Interpretation - Construction where meaning is not plain - Ambiguity - General - [See first Government Programs - Topic 5272 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See first Government Programs - Topic 5272 ].

Statutes - Topic 2615

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Social context - [See first Government Programs - Topic 5272 ].

Statutes - Topic 8506

Remedial statutes - General principles - Interpretation - [See first Government Programs - Topic 5272 ].

Words and Phrases

Medical treatment - The Ontario Divisional Court considered the meaning of "medical treatment" as used in s. 44(1)(iii.1) of Ontario Disability Support Program Act Regulations (Ont.), General Regulation, Reg. 222/98 - See paragraphs 48 to 63.

Words and Phrases

Reasonably required - The Ontario Divisional Court considered the meaning of "reasonably required" as used in s. 44(1)(iii.1) of Ontario Disability Support Program Act Regulations (Ont.), General Regulation, Reg. 222/98 - See paragraphs 64 to 68.

Cases Noticed:

Ontario (Disability Support Program Director) v. Billotte, [2009] O.J. No. 1108 (Div. Ct.), dist. [para. 32].

Disability Support Program (Ont.) v. Favrod (2006), 208 O.A.C. 360; 2006 CanLII 4898 (Div. Ct.), refd to. [para. 39].

Mule v. Director of Ontario Disability Support Program (2007), 233 O.A.C. 321; 88 O.R.(3d) 326 (Div. Ct.), refd to. [para. 39].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 39].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 40].

Shaw et al. v. Phipps et al. (2012), 289 O.A.C. 163; 2012 ONCA 155, refd to. [para. 40].

Toronto (City) Police Service v. Phipps - see Shaw et al. v. Phipps et al.

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 2011 SCC 53, refd to. [para. 42].

Walsh v. Disability Support Program (Ont.), [2011] O.A.C. Uned. 164; 2011 ONSC 1526, refd to. [para. 42].

Disability Support Program (Ont.) v. Surdivall (2012), 292 O.A.C. 317; 2012 ONSC 1851, refd to. [para. 42].

Peplinski v. Disability Support Program (Ont.) (2012), 293 O.A.C. 388; 2012 ONSC 2972, refd to. [para. 42].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 48].

Bapoo v. Co-operators General Insurance Co. (1997), 36 O.R.(3d) 616 (C.A.), leave to appeal denied (1998), 227 N.R. 398 (S.C.C.), refd to. [para. 48].

Gray v. Disability Support Program (Ont.) (2002), 158 O.A.C. 244; 59 O.R.(3d) 364 (C.A.), refd to. [para. 50].

Wedekind v. Director of Income Maintenance (Ont.) (1994), 75 O.A.C. 358; 21 O.R.(3d) 289 (C.A.), refd to. [para. 51].

Villani v. Canada (Attorney General) (2001), 275 N.R. 324; 205 D.L.R.(4th) 58; 2001 FCA 248, refd to. [para. 52].

Statutes Noticed:

Ontario Disability Support Program Act Regulations (Ont.), General Regulation, Reg. 222/98, sect. 44(0(iii.1) [para. 31].

Authors and Works Noticed:

Ontario, Every Door is the Right Door: Towards a 10-Year Mental Health and Addictions Strategy, A Discussion Paper, pp. 32 [para. 55]; 45, 48 [para. 57].

Sullivan, Ruth, Sullivan on the Construction of Statutes, p. 3 [para. 48].

Counsel:

Jackie Esmonde and Laura Hunter, for the appellant, in all three actions;

Geoffrey Baker, for the respondent, in all three actions.

These appeals were heard on April 18, 2013, by Sachs, O'Neill and Thomas, JJ., of the Ontario Divisional Court. Thomas, J., released the following judgment for the court on June 14, 2013.