Holmberg v. Ontario (Disability Support Program), 2009 CanLII 72055 (ON SCDC)

DIVISIONAL COURT FILE NO.: DV 602-03, DV 610-03, DV-599-03

DATE: 20091224

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Paul Kane, S.C.J.

BETWEEN:

TIM HOLMBERG

Madeleine Hebert, for the Appellant

Appellant (Respondent on Motion)

• and -

DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES

Jean Marie Dixon, for the Respondent

Respondent (Moving Party on Motion)

HEARD: December 18, 2009

BETWEEN:

LOIS CRANSTON

Terence Copes, for the Appellant

Appellant (Respondent on Motion)

• and -

DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES

Jean Marie Dixon, for the Respondent

Respondent (Moving Party on Motion)

HEARD: December 18, 2009

BETWEEN:

GILBERT YENSEN

Madeleine Hebert, for the Appellant

Appellant (Respondent on Motion)

• and -

DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM OF THE MINISTRY OF COMMUNITY, FAMILY AND CHILDREN’S SERVICES

Jean Marie Dixon, for the Respondent

Respondent (Moving Party on Motion)

HEARD: December 18, 2009

ENDORSEMENT

Endorsement

1Each of these cases involves appeals by individuals to the Divisional Court of decisions of the Social Benefits Tribunal. The Tribunal dismissed each of the three appeals of the rejection of their application for disability assistance by the Disability Adjudication Unit, pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997 chap. 25. The appeals to Divisional Court of the decisions of the Tribunal are scheduled to be argued in March 2010.

2The Director, Respondent, on these appeals, has brought a motion in each of these cases to dismiss these appeals to Divisional Court due to delay in perfecting the appeals. The delay in each case is some 6 years. The specific steps and times in each case are attached as Schedule A. The delay in fact is some 5 years and 9 months as the record of the Tribunal was not provided by its Registrar to the claimant Appellants for 3 months.

3An individual alleging disability and claiming support under this legislation is entitled to several remedies following a denial by the Disability Adjudication Unit. These include a re-consideration by the Unit, then an appeal to the Tribunal and finally a re-consideration by the Tribunal. In addition, an unsuccessful claimant may file a subsequent claim for support based on their then condition. Each of these Appellants exercised all the above steps. Each was unsuccessful as to their original claim and successful in their second claim which involved a subsequent time period.

4The Director on these motions seeks a dismissal of these appeals on the basis that:

(a) The delay in perfecting the appeal is excessive given the provisions under R. 61.13 that the appeal be perfected under R. 61.09(a), 30 days after the filing of the Notice of Appeal, and;

(b) The Director would be prejudiced if the Appellant was successful in his appeal, if the Divisional Court ordered a new hearing of the claim because, the claimant might then testify as to his condition many years ago and could be influenced in his memory by his subsequent condition which resulted in a successful second under the Act.

5The Appellants have been, and are represented by the Sudbury Legal Aid Clinic. It filed the Notices of Appeal in the summer of 2003 but did not perfect these appeals until August and September 2009. Appellants’ counsel states the reasons for the delay in each case are:

a) He awaited the outcome of each of the Appellants’ second claim for support because if successful, that would reduce and narrow the issues on these appeals, thereby reducing their length and cost.

b) He waited for the appeal decisions in two other cases, one to the Ontario Court of Appeal, which addressed what had to be proven and the sequence of issues on a disability claim. One of those decisions was released in November 2006. That however does not account for the final next three years’ delay.

c) He argues that the Appellants have been “prejudiced” by a computer error in the office of the Registrar of the Divisional Court. The Registrar normally sends out an automatic notice to Appellants if they are late in perfecting their appeal pursuant to R. 61.13(2) of the Rules of Civil Procedure. Counsel states that these automatic notices are relied upon by busy counsel and contain notice that their clients’ appeal will be dismissed unless perfected within a specified time or leave is obtained to extend that time. Counsel states that this computer failure in each of these cases eliminated a safe guard against the very remedy now sought.

d) Counsel further argues that the Director under R. 61.13(1) had the right, although not the obligation, until perfection of the Appeals in August and September 2009, to present a motion seeking a dismissal for delay which would permit the Registrar to send a 10 day notice, failing which there would be a dismissal. This would have prompted the claimants to perfect within that period or seek an extension. The claimants argue they again would have had this final opportunity before perfecting their appeal and should not be in a worse position now because they perfected the appeals.

e) Counsel presents his own inadvertence and the busy clinic workload as a reason to not dismiss the merits of the claimants’ appeals.

6During argument of these motions, both counsel concede that the remedies available to the Divisional Court under s. 31(5) of this disability legislation include the right to:

(a) Dismiss the appeal;

(b) Grant the appeal for support; and,

(c) Direct a re-consideration of the disability claim by the Tribunal or the Director.

7It appears that a re-consideration by the Tribunal if ordered by the Divisional Court, might involve the Appellant testifying. That potential causes the Director to fear prejudice in that hearing and results in these motions. Some medical files augmented by the Tribunal’s record, which include notes of the hearing officer(s), are sufficient on a re-consideration to determine disability without testimony. In other cases, the claimants’ testimony is needed to explain the doctor’s notes.

8I do not have the medical records or the Tribunal notes. I cannot therefore consider whether the Appellants testimony will be necessary and accordingly whether there is the potential of prejudice if a re-consideration was ordered by Divisional Court. This evidence will however be before the full panel of this Court hearing these appeals.

9I therefore adjourn each of the Director’s Motions herein to the panel hearing these appeals.

10The Appellants in each case in the interim will review the files and decide whether they will waive the right to testify, if that remedy was to be ordered on this appeal. Counsel for the moving party, in the interim, will seek instructions whether the Director will consent to withdraw these motions if such undertaking is provided.

Paul Kane, S.C.J.

DATE: December 24, 2009

Schedule A

Schedule A

Time Line

Holmberg

Cranston

Yensen

ODSP Application #1

January 2001

October 2001

February 2001

Application Denied

January 2002

January 2002

April 01

Tribunal Decision Dismissing Appeal

April 2003

May 03

March 03

Tribunal’s Re-Consideration and Denial

July 2003

July 03

June 03

Appeal to Divisional Court

August 2003

August 03

July 03

Tribunal Provides Record of Proceeding

November 2003

November 03

October 03

Perfection of Appeal

September 2009

August 09

August 09

Divisional Court Lists Appeal for Hearing

August 2009

August 09

August 09

Motion to Dismiss Appeal

December 2009

December 09

December 09

Anticipated Appeal Hearing Date

March 2010

March 2010

March 2010

Delay

6 yrs – 4 mos

6 yrs – 1 mos

6 yrs – 1 mos

DIVISIONAL COURT FILE NO.: DV 602-03, DV 610-03, DV-599-03