Ontario woman entitled to sympathy, not benefits, court rules
NationalPost.com – news
Sep 9, 2011. Joseph Brean
An Ontario court has scolded the province’s Social Benefits Tribunal for giving disability benefits to a mother of four who did not even try to work, and had only minor or easily treated ailments.
In a written ruling, three Ontario Divisional Court judges said the tribunal blurred the line between the difficult personal circumstances of 34-year-old Parveen Anwari — who suffered migraine headaches, depression and heartburn — and her claimed disability.
“It would have been very helpful to the disposition of this appeal if the Tribunal had given more extensive reasons better explaining its analysis and conclusions, particularly in light of the fact that the respondent had not actually tried to function in any workplace,” according to the newly released judgment.
In overuling two earlier rejections, Tribunal Member Linda LeBourdais ruled in 2009 that, in her opinion, “this young mother is overwhelmed with what is on her plate, over and above the impairments she experiences from her conditions. Together they make functioning on a day-to-day basis difficult. Lacking a significant education, a lack of workplace skills and experience, in addition to an inability to read and write, realistically preclude any chance for employment.”
That is a regrettable plight, the Divisional Court judges ruled, but it is not a disability.
“Although it is difficult not to sympathize with the plight of [Ms. Anwari], her struggles and challenges resulting from other causes do not entitle her to the benefits that she claims and the Tribunal has stepped beyond what the act allows,” the Divisional Court judgment reads.
Under the law, a person is disabled if and only if they have a continuous or recurring physical or mental impairment, verified by an expert and expected to last a year or more, that results in a “substantial restriction” in their ability to function in the community and workplace. If deemed eligible, a person may then receive payments from the province, which vary depending on circumstance, but for example, the maximum a single person could receive each month for basic needs and shelter under the program is $1,042, according to Charlotte Wilkinson, a spokeswoman for Ontario’s Ministry of Community and Social Services.
Ms. Anwari, according to court records, completed a Grade 12 education in Pakistan before her school was shut by the Taliban, and she immigrated to Canada with one child, settling in rural Port Elgin, Ont., with her husband, where they lived in a two-bedroom apartment that lacked basic furnishings, even beds and strollers for the children. She did not smoke or drink, has no history of obesity, and has never been employed.
At the time of her disability application, in the summer of 2008, she was pregnant with a fourth child, and being treated for gestational diabetes, which was expected to resolve after the birth. Her husband had lost his job at a convenience store, and he was dealing with health problems of his own.
Her family doctor, Don McCulloch, reported on a medical form “minimal” concern regarding a number of things, and moderate concern only in “learning,” such as language, math or attention. He also reported “mild or slight” impairment in ability to do housekeeping. He said it is “unrealistic” that she would try to enter the workforce. “She will need to be a ‘stay at home’ mother for the next few years until her children are out of school,” Dr. McCulloch wrote.
The initial rejection letter from the ministry cites several reasons for turning her down, including lack of documentation about any advanced symptoms or attempts at treatment or diagnosis. There were no hospitalizations, no visits to specialists, and indeed no past treatments other than some medication for her heartburn. GERD, or chronic heartburn, is “generally understood to be a manageable condition,” the letter says.
At her appeal to the Tribunal, another doctor confirmed the diagnosis of “major depression,” but said there was no reason it could not be treated after her pregnancy. Her testimony, however, painted a darker picture of an overwhelmed, housebound woman, unable to sleep, and confused by her sadness.
“She cries nightly. She misses her family back in her homeland and worries about them and the war torn existence that surrounds them. Her in-laws are not helpful to her,” the Tribunal decision reads.
In granting Ms. Anwari disability benefits, Ms. LeBourdais said she relied on a rule that allows the Tribunal to “consider the applicant in the context of her own situation,” and not just as any person with these ailments. Her reasons for this decision, however, “do not meet the [legal] requirement of completeness,” the judges ruled.
The Social Benefits Tribunal is one of several quasi-judicial tribunals set up by the Ontario government to resolve disputes outside of full courts, such as the Human Rights Tribunal of Ontario, the Landlord and Tenant Board, and the Custody Review Board.
The court ordered a new hearing under a differently constituted tribunal.
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