COURT OF APPEAL FOR ONTARIO

CITATION: Walsh v. Ontario (Disability Support Program), 2012 ONCA 463

DATE: 20120629

DOCKET: C54712

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Diane Walsh

Appellant

and

Director of the Ontario Disability Support Program

Respondent

Lesli Bisgould and Martha Macfie, for the appellant

Mimi Singh, for the respondent

Heard: April 20, 2012

On appeal from the order of the Divisional Court (Jennings, Gray and Ramsay JJ.), dated March 11, 2011, with reasons by the court reported at 2011 ONSC 1526, allowing the appeal from the decision of the Social Benefits Tribunal dated December 17, 2008.

H.S. LaForme J.A.:

OVERVIEW

[1] Diane Walsh is a 63 year old woman with numerous mental and physical disabilities. Since about 1993, she has been receiving disability benefits under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (“ODSPA” and the “Act”). In September 2005, the Director of the Ontario Disability Support Program (the "Director") suspended Ms. Walsh’s benefits as a result of her failure to comply with an eligibility review.

[2] In July 2007, Ms. Walsh obtained legal assistance, sought a review of the Director’s decision and commenced an appeal to the Social Benefits Tribunal (the “Tribunal”). The Tribunal rescinded the Director’s decision and reinstated Ms. Walsh’s benefits. It held that her non-compliance was the product of her disabilities, which interfered with her ability to understand what was required of her. The Tribunal granted her appeal and its Acting Chair later confirmed the decision.

[3] The Director appealed the Tribunal’s decision to the Divisional Court, which overturned the decision on March 11, 2011. It held that the Tribunal lacked jurisdiction to hear the appeal from the Director’s decision. The appeal was statute-barred after one year from the date of the decision.

[4] Ms. Walsh appeals from the Divisional Court’s decision.

BACKGROUND

[5] As mentioned, Ms. Walsh is 63 years old and her mental and physical disabilities have made it necessary for her to rely on support under the Ontario Disability Support Program (“ODSP”) and its predecessor since about 1993. Her disabilities are longstanding.

A. The History of the Suspension

[6] In 2005, the Director of the ODSP began a routine financial update of Ms. Walsh's file called the Consolidated Verification Process. The process is directed at verifying ongoing financial eligibility as prescribed by the legislation. Between July 6, 2005, and September 13, 2005, the Director sent five letters to Ms. Walsh seeking information to establish her ongoing eligibility.

[7] In the first letter, dated July 6, 2005, the Director notified Ms. Walsh that she was to attend an in-person interview on July 21, 2005, and provide certain information. A list of the required information was said to be attached to the letter. Ms. Walsh asserts that no such list was attached.

[8] The second letter, dated July 21, 2005, – the same date that the first letter had set for an interview – notified Ms. Walsh that her benefits were being suspended as of August 1, 2005, because of "Information missing”.

[9] The third letter, dated August 4, 2005, referred to the income support "you receive" from the ODSP. It made no reference to any suspension of her income support; rather, it indicated that an update of the information on file was needed. The letter went on to advise Ms. Walsh that another in-person appointment had been scheduled for August 15, 2005. Attached to the letter was a checklist of the information required.

[10] In August 2005, Ms. Walsh responded to the Director’s letters. Apparently, she sent all of the information that the Director required. In a letter to the Director dated August 24, 2005, she explained why she had been slow to respond to the requests. She explained her health situation and her consequent inability to attend a meeting. She expressed frustration, noting that she had had a stroke a while back and could not handle stress. She concluded the letter by saying that she could no longer “fight” for her disability, stating, “I don’t need it. Thanks anyway”.

[11] In response to Ms. Walsh’s August 2005 correspondence, the Director sent her two more letters, both dated September 13, 2005. One stated that her income support was suspended as of September 1, 2005, because of "Information missing". However, the other letter acknowledged that Ms. Walsh had provided the necessary information, but indicated that she must come in to the office on October 5, 2005, to complete and sign a form.

[12] Nevertheless, Ms. Walsh’s benefits were suspended effective September 1, 2005, – before the October 5 date to complete the review referred to in the Director’s second letter of September 13, 2005.

[13] In June 2006, Ms. Walsh successfully applied for income assistance under the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A ("OWA"). For reference purposes, benefits through Ontario Works are less than those provided through the ODSP: see Asgedom v. Ontario (Ministry of Community and Social Services), 2010 ONSC 939, 259 O.A.C. 144, at para. 16.

[14] On July 23, 2007, after receiving legal advice, Ms. Walsh asked the Director to extend the time for conducting an internal review of the September 2005 decision. By letter dated July 24, 2007, Ms. Walsh’s request for an internal review was denied because the “request for internal review was due by September 27, 2005”. The Director was not prepared to extend the time for this review. These facts are central to this appeal, which I will discuss in more detail below.

[15] On August 7, 2007, Ms. Walsh appealed the Director’s September 2005 decision suspending her benefits to the Tribunal. Independent of the appeal, Ms. Walsh re-applied for ODSP benefits; she qualified and benefits were re-instated. She was receiving benefits in 2008 when the Tribunal heard her appeal. I would note, however, that the appeal is not moot given that disability benefits for the period when she was not receiving them are still at issue.

B. The Relevant Legislative Provisions in Brief

[16] Together with O. Reg. 222/98 (the “Regulation” or “Reg.”), the ODSPA sets out the appeal routes and procedure for decisions made under the Act. An appeal of a Director’s decision to suspend benefits lies to the Tribunal: s. 21(1). However, before such an appeal can be commenced, an internal review must be requested within 10 days of receipt of the Director’s decision: ODSPA, s. 22 & Reg., s. 58(1).[^1] Although the Director has the power to extend the time to seek an internal review, its decision on the matter is not appealable: Reg., s. 58(3); ODSPA, s. 21(2) & Reg., s. 57.

[17] Once the Director’s decision to suspend benefits becomes final, the appeal to the tribunal must be brought within 30 days: ODSPA, ss. 20(3) & 23(1) & Reg. S. 61(1). Finally, s. 61(2) of the Regulation provides that: “No appeal to the Tribunal shall be commenced more than one year after the date of the Director’s decision.”

C. The Appeal to the Tribunal

[18] On appeal to the Tribunal, Ms. Walsh’s position was that her disabilities made her incapable of complying with the Director’s demands to complete the review forms and prolonged the date of effective notice of the Director’s decision to suspend her benefits. She argued that she did not receive effective notice of the Director’s decision until the legal clinic informed her that she should seek an internal review. Prior to that time, she did not understand what she was required to do to pursue her rights.

[19] The Director took the position that the Tribunal lacked jurisdiction to hear the appeal because it was brought outside of the one year limitation period set out in s. 61(2) of the Regulation. Further, the Director had declined to extend the time to seek an internal review, a necessary precursor to an appeal, and there was no right of appeal from that decision.

[20] On December 17, 2008 the presiding member of the Tribunal decided that it did have jurisdiction to hear the appeal. He concluded that the deadline for “internal review” was ambiguous and should be resolved in Ms. Walsh’s favour.

[21] According to the member, the central issue was the date on which the Director’s decision became effective. Relying on s. 58(1) of the Regulation, which sets outs the prescribed time for requesting an internal review, the member reasoned that the Director’s decision became effective when it was received. And, “received” was interpreted as meaning the time at which the appellant understood the decision:

To be received the Appellant must “receive” the decision; that is understand it. The Tribunal is satisfied that the Appellant did not understand her rights under the legislation until she attended the local legal clinic and explained her situation to them. This meeting occurred less than ten days before the July 23, 2007 request for an Internal Review. Therefore, the options before the Tribunal are to find that the date from which the time for an Internal Review starts is July 31, 2005 or 10 days before the appeal was made.

[22] The member found that the health issues that disabled Ms. Walsh were also responsible for her failure to satisfy the Director’s demands for information and attending meetings. In light of this, the Director was held to have a positive duty to ensure that Ms. Walsh completed the forms, which included attending at her residence if necessary.

[23] The member referred to this court’s decision in Gray v. Ontario (Disability Support Program Director) 2002 CanLII 7805 (ON CA), 2002, 59 O.R. (3d) 364, at para. 9, where it was held that the ODSPA is remedial legislation and should therefore be interpreted “broadly and liberally and in accordance with its purpose of providing support to persons with disabilities.” Furthermore, any ambiguity in its interpretation should be resolved in the claimant’s favour.

[24] Finally, the member concluded that:

… there is ambiguity as to the effective date of the Respondent’s decision and therefore as to the deadline for an Internal Review. In accordance with the Gray decision the Tribunal accepts jurisdiction of the appeal.

[25] On the merits, the Tribunal concluded that the Director’s decision to suspend Ms. Walsh’s benefits should be rescinded. It ordered that Ms. Walsh was eligible for retroactive support from September 1, 2005, to the present.

[26] The member acknowledged the Director’s position that the Tribunal was without jurisdiction to hear Ms. Walsh’s appeal because she failed to appeal within the one year time limit, and that there was no appeal from its decision that Ms. Walsh’s review request for an internal review was out of time. However, he did not address these arguments in the Tribunal’s reasons.

D. Tribunal (Acting Chair)

[27] The Director applied to the Acting Chair of the Tribunal for a reconsideration of the Tribunal’s decision. On March 30, 2009, the request was refused because, in the Acting Chair’s opinion, the Tribunal’s reasons focused on Ms. Walsh’s problems and difficulties and found that: (i) she was incapable of complying; (ii) she did not understand the notice; and (iii) the ODSP is required to accommodate persons like Ms. Walsh. The Acting Chair found that the Tribunal’s decision was “eminently reasonable” and “correctly found that [it] had jurisdiction … the Director was incorrect in the decision to suspend Ms. Walsh’s income support.”

E. The Appeal to the Divisional Court

[28] The Director appealed under s. 31 of the Act to the Divisional Court on the basis that the Tribunal acted without jurisdiction, and, specifically, that the presiding member of the Tribunal did not address: (i) the Director’s refusal to extend the time for an internal review; or (ii) the one year limitation in s. 61(2) of the Regulation.

[29] The Divisional Court allowed the appeal and agreed that the Tribunal acted without authority in hearing the appeal. It held that regardless of the correct interpretation of the word “received”, the Tribunal lacked jurisdiction to hear the appeal because it was brought outside the one year limitation period found in s. 61(2) of the Regulation, stating at para. 5:

Even if the Board made no error in its interpretation of the statutory and regulatory provisions relating to the period in which an internal review may be requested, we are of the view that subs. 61(2) of the Regulation provides an overriding prescription that ends one year after the Director's decision is made, whenever the decision is considered final and whenever it becomes effective. This one-year limit applies whether or not the requirements for requesting an internal review are complied with.

[30] The court further held that the Regulation was within the scope of the authority delegated to the Lieutenant-Governor-in-Council under the Act and fit within the purpose and scheme thereof. The court explained the purpose and scheme of the Act at paras. 9-11:

The scheme of the Act is to provide an expeditious review and appeal to a person who has been denied benefits and to provide a further opportunity to apply for benefits for needs that arise at a later time, or if new or other evidence of need becomes available. Under s. 10 of the Act, a person who has been denied benefits may apply again "upon new or other evidence or if material circumstances have changed." In fact, the respondent has done this and is currently receiving benefits.

The Regulation confines the review and appeal to a time period reasonably close to the situation that existed at the time of the denial, leaving later needs to be dealt with under s. 10 of the Act. This is consistent with the purpose and scheme of the legislation.

The Director's decision was made on July 21, 2005. The appeal was filed on August 7, 2007. We do not need to decide whether the Tribunal had jurisdiction under subs. 23 (2) of the Act to extend the time for filing an appeal beyond the one year prescription. The Tribunal was not asked to extend the time, and it did not do so. Rather it erroneously decided that the appeal had been commenced within the prescribed time. In hearing the appeal the Tribunal acted without jurisdiction. The appeal is allowed and the order of the Tribunal is set aside.

ISSUE ON APPEAL

[31] The focus of the appeal is whether the Divisional Court correctly concluded that the Tribunal lacked jurisdiction to hear Ms. Walsh’s appeal. Specifically at issue is whether the Tribunal erred in law in failing to consider the prescription against appeals commenced more than one year after the Director's decision is made and the Director’s refusal to extend the time to seek an internal review. In essence, it is about how timelines for appealing decisions regarding a person's entitlement to income support pursuant to the ODSPA should be interpreted.

Positions of Counsel

A. Ms. Walsh

[32] Ms. Walsh, of course, favours the approach to timelines taken by the Tribunal. That is, she submits that timelines for appeals under the Act are contingent on when the Director's decision is "received". And, just as the Tribunal found, she says that because of her disabilities she did not “receive” the Director's decision to suspend her benefits until she understood it. Thus, she contends, her appeal was commenced within statutory time limits.

[33] In the alternative, Ms. Walsh submits that even if the appeal was commenced beyond the established time limits, s. 23(2) of the Act actually authorizes the Tribunal to extend the time for appealing a decision if it is satisfied that there are apparent grounds for an appeal and reasonable grounds for applying for the extension.

B. The Director

[34] In a contrary argument, the Director submits that by virtue of the combined effect of s. 61(2) of the Regulation and s. 21(2) para. 5 of the Act, no appeal to the Tribunal from a decision of the Director of the ODSP affecting eligibility for, or the amount of, income support, may be commenced more than one year after the date of the Director’s decision. Therefore, the Tribunal lacked jurisdiction to hear Ms. Walsh’s appeal since it was brought more than one year after the Director’s September 13, 2005 decision.

ANALYSIS

[35] I will discuss each of Ms. Walsh’s arguments in order. Ultimately, however, I conclude that her appeal cannot succeed. I arrive at the same conclusion as the Director; if Ms. Walsh’s arguments were to prevail, the purpose and scheme of the legislation would be thwarted. Certainly, timelines for internal reviews and appeals would be virtually eliminated, unnecessary delays would result, and unfairness would be inserted into the scheme. Consequently, as I will explain, the appeal should be dismissed.

[36] I begin with an observation agreed on by both parties to this appeal: the Act and Regulation must be interpreted in accordance with what is termed the “modern approach”. This involves a contextual and purposive analysis of the impugned provisions and the statute itself, the history of the specific provisions, the overall scheme of the Act and regulations, and, finally, the intention of the legislature in enacting both the specific provisions and the scheme as a whole: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. This is the approach I have taken.

A. Did the Tribunal have jurisdiction to hear Ms. Walsh’s appeal?

[37] Ms. Walsh contends that the Divisional Court failed to apply the correct approach to its interpretation of the Act. Specifically, she argues that the court erred by interpreting s. 61(2) of the Regulation as providing "an overriding and absolute prescription on all appeals that ends one year after the Director's decision is made, regardless of disability, human rights or any other issues." I disagree.

(i) Additional background

[38] Some further detail to the background of what transpired in this case and the working of the ODSP demonstrates the correctness of the Divisional Court’s decision.

[39] On July 23, 2007, Ms. Walsh made a formal request for an extension of time to seek an internal review of the September 2005 suspension of her benefits. Her reasons for the request were, “because I was too sick at the time to do anything about this decision”. By letter dated July 24, 2007, the Director responded to Ms. Walsh’s request and reminded her that her “request for an internal review was due by September 27, 2005”. The letter goes on to reproduce s. 58(1) and (3) of the Regulation:

(1) The prescribed time for requesting an internal review is 10 days from the day the decision is received or deemed to have been received under section 50 of the Act. [Since amended to be 30 days]

(3) The Director may hold an internal review even if it was not requested within the prescribed time if the Director is satisfied that the applicant or recipient was unable to request an internal review within that time because of circumstances beyond his or her control.

[40] The letter reaffirmed the decision to suspend Ms. Walsh’s benefits and denied her request to extend the time for an internal review. It concluded with this statement: “your request for internal review [is deemed] to be out of time you do not have further recourse to appeal this decision.”

[41] On August 7, 2007, Ms. Walsh applied to the Tribunal to appeal the decision to suspend her benefits. Notably, her appeal did not provide notice to the Tribunal of any human rights issue or a challenge under the Human Rights Code as provided for by the Tribunal's rules of practice. Furthermore, no evidence supporting such claims was put before the Tribunal.

[42] Responding to Ms. Walsh’s application to the Tribunal – in accordance with ss. 23(7) and (8) of the Act – the Director provided written submissions dated September 27, 2007. In the submissions the Director contended that it:

… has the authority to determine the decision out of time with no further recourse to appeal. This is a prescribed decision made, which is not appealable to the Tribunal… Further the Tribunal is limited as well as the decision was made more than one year in the past. [Emphasis added.]

[43] The submissions go on to enumerate s. 58(1) and (3) of the Regulation and s. 21(2) para. 5 of the Regulation, which provides:

(2) No appeal lies to the Tribunal with respect to the following matters:

5. A prescribed decision.

[44] Additionally the submissions briefly describe the background leading up to the Director’s decision. They conclude with this: “the decision to suspend her allowance in 2005 is clearly out of time to appeal and as a prescribed decision, outside the jurisdiction of the Tribunal.”

[45] Nevertheless, as I noted earlier, the Tribunal decided that the Director was wrong. The member found that the Tribunal did indeed have jurisdiction to hear the appeal; that the deadline for internal review was ambiguous, and that the ambiguity should be resolved in Ms. Walsh's favour. In spite of the Director’s clear submissions, the Tribunal did not address the fact that the Director had refused to extend the time for internal review or the one year time limit to bring an appeal. In other words, neither s. 21(2) para. 5 of the Act, nor s. 61(2) of the Regulation was addressed.

[46] The Divisional Court agreed with the Director and set aside the order of the Tribunal finding that, even if the Tribunal made no error in its interpretation for when “internal review” may be requested, s. 61(2) of the Regulation "provides an overriding prescription that ends one year after the Director's decision is made, whenever the decision is considered final and whenever it becomes effective."

(ii) Interpreting the ODSPA

(a) Purpose and scheme

[47] The purpose of the Act, as the Divisional Court observed at para. 8 of its reasons, is to provide for the basic needs and shelter of a person under disability on a monthly basis. Among the purposes of the Act listed in s. 1 are the effective delivery of assistance to persons in need, and accountability to the taxpayers of the province. Because the Act is meant to ensure support for disabled persons, it must be interpreted in a broad and generous manner with any ambiguity resolved in favour of the claimant, recipient or dependent. No one takes issue with this observation.

[48] Section 5 of the Act sets out the eligibility requirements for income support. It requires a recipient, like Ms. Walsh, to provide ongoing financial information as a condition of eligibility. Where an applicant, recipient or dependent fails to comply with this requirement, s. 9(1) of the Act and s. 23 of the Regulation, make it mandatory for the Director to suspend or cancel that person’s income support. That is clear from the mandatory language of the provisions, as well as the decision in Rea v. Simcoe (County Administrator, Social Services Department) (2005), 2005 CanLII 47596 (ON CA), 79 O.R. (3d) 583, at para. 3, where this court held that the equivalent provisions of the OWA made termination mandatory as a result of non-compliance with eligibility requirements.

[49] No doubt s. 5 is meant to attend to the legislative purpose of accountability to the taxpayers. In any case, even if benefits are suspended for non-compliance, once compliance is re-established and the required information provided, s. 9(2) of the Act permits the Director to expeditiously re-instate income support to its former level based on a new application. Incidentally, this is what occurred in Ms. Walsh’s case.

(b) Prescribed decision: no internal review, no extension of time, no right of appeal

[50] Section 21 of the Act allows that “any decision” of the Director affecting eligibility for income support can be appealed to the Tribunal, except for, among others, a “prescribed decision”. A “prescribed decision” includes “a decision of the Director not to extend the time [to request an internal review] as set out in subsection 58 (3)”. The Director’s letter of July 24, 2007, advising that the time to request an internal review had passed and would not be extended, is precisely the type of decision referred to in the Act. Further, the prescribed, and therefore unappealable, nature of the decision was expressly argued by the Director in its written submissions to the Tribunal, and unfortunately ignored.

[51] Subsections 22(1) and (2) of the Act allow a person that has received a Director’s decision about eligibility, to commence an appeal of that decision to the Tribunal, provided that an internal review has been requested first. Importantly, the request for internal review must have been made within the prescribed time, in this case 10 days: ODSPA, s. 58(1). An extension of time for an internal review can be granted by the Director, if it is satisfied that the applicant did not request such a review because of circumstances beyond his or her control: ODSPA, s. 58(3).

[52] In this case, the Director refused to extend the time for internal review. That decision was, by law, not appealable. As I described above, and as the Director specifically wrote in its submissions to the Tribunal, s. 21(2) para. 5 of the Act and s. 57(1) of the Regulation specifically prohibit an appeal of such a refusal.

[53] Section 23 of the Act also speaks to appeals to the Tribunal, but again requires that an internal review has been requested:

(1) An applicant or recipient may appeal a decision of the Director within the prescribed period after an internal review by filing a notice of appeal that shall include reasons for requesting the appeal.

(2) The Tribunal may extend the time for appealing a decision if it is satisfied that there are apparent grounds for an appeal and that there are reasonable grounds for applying for the extension.

While subsection (2) allows the Tribunal to extend time to appeal, subsection (1) makes it clear that an internal review must have been requested “within the prescribed time”.

[54] Here, an internal review was requested by Ms. Walsh, but it was some two years after the Director’s decision to cancel her benefits. The Director refused her request because it was out of time and declined to extend the time to make the request. The decision to do so was not appealable because it was a “prescribed decision”.

[55] The ability of the Tribunal to extend the time to appeal a decision in s. 23(2) can only be speaking to the extension of the 30 day time limit to appeal from a decision of the Director for which there exists a right of appeal. The decision to deny the request to extend the time to seek an internal review is not appealable. In other words, the Tribunal does not have the jurisdiction to extend the time to appeal from a “prescribed” decision of the Director.

[56] In any case, the Divisional Court recognized that the issue was neither in play, nor dispositive, and I concur with the holding at para. 11 of its reasons:

We do not need to decide whether the Tribunal had jurisdiction under subs. 23 (2) of the Act to extend the time for filing an appeal beyond the one year prescription. The Tribunal was not asked to extend the time, and it did not do so. Rather it erroneously decided that the appeal had been commenced within the prescribed time. In hearing the appeal the Tribunal acted without jurisdiction.

[57] Ms. Walsh appears to have accepted the decision of the Director to cancel her benefits in 2005 and did not, at that time, make a request for an internal review. It was not until 2007 that Ms. Walsh attempted to exercise her right to an internal review, and appreciating that she was seriously out of time, requested an extension of time to do so. The Director denied her request. While the Director could have extended the time for requesting an internal review, it refused to do so. The Director's refusal to extend the time, as I have noted several times, is a “prescribed decision” that cannot be appealed to the Tribunal.

[58] The unavoidable result is that the Divisional Court was correct in deciding this case as it did. Ms. Walsh could not appeal the Director’s decision to suspend her benefits without requesting an internal review within the prescribed time. She did not request an internal review within the prescribed time and the Director declined to extend the time period to do so. That decision was not appealable. The failure to make a timely request for an internal review left Ms. Walsh without a right of appeal of the Director’s decision to suspend her benefits. The Tribunal therefore lacked jurisdiction to hear Ms. Walsh’s appeal from the decision to suspend her benefits. As an aside, it also lacked jurisdiction to entertain an appeal of the Director’s decision not to extend the time for the internal review.

(c) Ultimate limitation period of one year – s. 61(2)

[59] In addition to the lack of a timely request for an internal review, the Tribunal’s jurisdiction to hear the appeal of the decision to suspend Ms. Walsh’s benefits was, as the Divisional Court held, circumscribed by operation of s. 61(2) of the Regulation. For ease of reference that section provides: “No appeal to the Tribunal shall be commenced more than one year after the date of the Director’s decision.”

[60] There is no ambiguity in this provision. To interpret it, as the Divisional Court did, as providing “an overriding prescription [against appeal] that ends one year after the Director’s decision is made, whenever the decision is considered final and whenever it becomes effective”, was in keeping with the overall purpose and scheme of the legislation.

[61] To interpret this provision any other way would render it moot. But, moreover, it would open the door to uncertainty, virtually eliminating timelines for internal reviews and appeals, causing unnecessary delays, and inserting unfairness into the legislative scheme. This, of course, runs counter to the purpose of the ODSPA of providing for the basic needs and shelter of eligible persons with disabilities in a timely and cost-effective fashion, and in a manner that promotes accountability to Ontario’s taxpayers. I would adopt the holding of the Divisional Court that s. 61(2) of the Regulation imports what is effectively an ultimate limitation period of one year to bring an appeal from an eligible decision of the Director.

[62] While this is sufficient to dispose of the appeal, I believe that given the issues underlying the alternative grounds of appeal advanced by Ms. Walsh on this appeal, it will be helpful, and provide a measure of completeness, to offer some comment on them.

B. Alternative grounds of appeal

[63] Ms. Walsh argues that the Divisional Court failed to address all the issues she advanced and refers to some specific errors she alleges it made. These include: (i) that the Director conducted an unreasonable eligibility review; (ii) that the Tribunal had jurisdiction to hear the appeal based on internal review; and (iii) that the Tribunal has the same power as the Director on internal review once an appeal is brought before it. I will discuss each of these submissions in order with (ii) and (iii) being discussed together.

(i) Unreasonable eligibility review

[64] Ms. Walsh submits that the Director has considerable discretion as to the manner in which an eligibility review is conducted, and in determining what information is required. Suspending income support, she says, is a decision of last resort and requires recipients to be given a meaningful opportunity to comply. Where the Director ultimately suspends income support, the Act requires that it must give the affected person written notice, which must include, among other things, reasons for the decision: see ODSPA, s. 19 & Reg., s. 56. Ms. Walsh contends that the Director failed to properly exercise its discretion in deciding her eligibility in accordance with these principles.

[65] I disagree. First, this argument only becomes relevant if the Tribunal had jurisdiction to hear the appeal, which it did not. The Divisional Court, therefore, did not err by not dealing with it. Second, the Director's conduct is not relevant. As this court made clear in Rea, s. 9 of the Act makes it mandatory for the Director to suspend or cancel income support where there is non-compliance with the financial reporting condition of eligibility. The Director was obliged, in all the circumstances of this case, to cancel Ms. Walsh’s benefits and would have been in breach of the legislation had it not done so.

[66] Ms. Walsh also submits that the Director’s decision was unreasonable because it violated the Human Rights Code in that it failed to consider and accommodate her disabilities. The Divisional Court's interpretation of s. 61(2), she says, perpetuated this violation by ignoring human rights concerns in interpreting the Act and Regulation.

[67] The alleged violation of human rights is being raised for the first time on this appeal. Ms. Walsh did not raise this argument with the Tribunal. And, because the Divisional Court was not alerted to this issue, it would not be appropriate on this record to suggest that the court erred by failing to do so. Inherent in the appellate function is the requirement that in most cases, issues should be raised and adjudicated upon before they will be considered on appeal: R. v. Rollocks (1994), 1994 CanLII 8728 (ON CA), 19 OR (3d) 448 (Ont. C.A.), at p. 453.

(ii) & (iii) The Tribunal’s jurisdiction on internal review and powers on appeal

[68] Section 58(1) of the Regulation prescribes the time for requesting an internal review as 10 days from the day the decision is received or deemed to have been received under s. 50 of the Act (emphasis added). Ms. Walsh does not deny that the Director's letters arrived at her home around the time they are dated; it is their substance, and her capacity to understand and comply that is in issue.

[69] As I understand Ms. Walsh’s submissions, it is the Tribunal’s findings of fact that form the substance of this ground of appeal. That is, the Tribunal found that Ms. Walsh's disabilities were responsible for her failure to fully satisfy the Director's demands for information and meeting times, and that the Director had a duty, pursuant to its own policy, to assist her in completing the forms as required - including by way of a home visit if necessary. The Director's failure to do so, she says, was a violation of its own policy. The Tribunal, on the other hand, correctly adopted a liberal interpretation of the Act and the Regulation. It considered the impact of the claimant’s disabilities in determining when a Director’s decision to suspend benefits was “received” for purposes of bringing an internal review and then appealing that decision: see Reg., s. 58(1).

[70] Essentially, Ms. Walsh argues that an appeal can proceed within 10 days following a request for an internal review, the timeline being triggered when a person receives and understands the Director's decision. In effect, she says that once a person requests an internal review, an appeal to the Tribunal can be made regardless of the Director’s decision. That includes, whether the Director refuses, delays or fails to hold an internal review, or whether it conducts the review and upholds the original decision.

[71] The result of Ms. Walsh’s claims is that once the matter is before the Tribunal, “it can make any decision that the Director could have made, on internal review or otherwise.” She adds that while s. 61(1) of the Regulation prescribes that an appeal is to be commenced within 30 days after the Director's decision is final, s. 23(2) of the Act gives the Tribunal the power to extend the time for appealing, and the Act puts no limit on the length of the extension which the Tribunal may grant.

[72] I have already indicated that the Divisional Court’s treatment of s. 23(2) was both appropriate and correct. However, Ms. Walsh urges this court to consider some additional arguments that she says illustrate why the Divisional Court erred.

[73] Ms. Walsh submits that the Divisional Court found that the appeal was commenced outside of the one year limitation period that provides an overriding prescription for appeals, and for that reason it did not consider the meaning of s. 58 of the Regulation. That is, the Tribunal – exercising its powers for those of the Director prescribed in s. 58 – could hold an internal review after the 10 day time limit if satisfied that the Ms. Walsh was unable to request an internal review because of circumstances beyond her control.

[74] I do not accept that the court was in error in not considering this argument. First, this once again presumes that the Tribunal had jurisdiction to hear Ms. Walsh’s appeal in the first place; it did not.

[75] Second, Ms. Walsh’s submissions dramatically distort the purpose and scheme of the legislation. Taken together the Act and Regulation provide a complete code regarding appeals from a Director’s decision. They include a series of provisions that regulate the timelines for appeal forming a coherent and workable scheme. Ms. Walsh is urging that the word "receive" in s. 58(1) have a different meaning for the purpose of the timeline for requesting internal review than its meaning elsewhere under the scheme.

[76] As I have explained, the scheme requires a person to satisfy eligibility requirements to receive benefits, failing which the Director is required to suspend or cancel their payment. Where the Director makes such a decision the person has a right of appeal to the Tribunal, but must do so within the legislated timeframes and having regard for the legislated procedure. A request for an internal review – which at the time had to be commenced within 10 days of the Director’s decision – is a prerequisite to an appeal to the Tribunal. And, no appeal to the Tribunal can be commenced beyond one year after the date of the Director's decision.

[77] To repeat, the purpose of the legislative scheme is to provide for the basic needs and shelter of a person under disability on a monthly basis. It is to do so through the effective delivery of assistance to persons in need and with accountability to the taxpayers. This in turn requires fair and expeditious review and decision-making, which includes review and opportunity for appeal. Ms. Walsh’s interpretation, if accepted, would run entirely contrary to this scheme. That is, it would virtually eliminate certainty as to timelines for internal reviews and appeals; cause unnecessary delays, and create unfairness.

[78] The Act seeks to compensate for any perceived unfairness arising from the timelines in two ways: the right to re-apply; and the Director’s ability to extend the time under s. 58(3) of the Regulation for requesting internal review. Ms. Walsh availed herself of both of these.

DISPOSITION

[79] For the foregoing reasons I would dismiss the appeal. Given the position of the Director in oral argument, I would make no order as to costs.

Released:

“JUN 29 2012” “H.S. LaForme J.A.”

“RJ” “I agree Russell Juriansz J.A.”

“I agree E. Ducharme J.A.”

[^1]: Unless otherwise stated, all references to timelines under the ODSPA refer to the timelines in place at the time of the Director’s decision to suspend benefits. The Act has since been modified and the timeline for requesting an internal review is now 30 days.