Asgedom v. HMTQ, 2010 ONSC 939

CITATION: Asgedom v. HMTQ, 2010 ONSC 939

DIVISIONAL COURT FILE NO.: 423/09

DATE: 20100208

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

DAMBROT, SWINTON AND SACHS JJ.

BETWEEN:

YOSEPH ASGEDOM

Applicant

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES

Respondent

In Person

Michelle M. Schrieder and Michael Dunn, for the Respondent

HEARD at Toronto: February 8, 2010

DAMBROT J. (ORALLY)

Background

1Yoseph Asgedom brings an application for judicial review of two adjudications under the Ontario Disability Support Program Act (“ODSPA”) dated April 13, 2004 and October 5, 2004 denying him benefits under the Act. He asks us to set aside these two decisions, order that he was entitled to benefits from January 1, 2004 to April 30, 2008, and award him damages as a remedy for breach of fiduciary duty and for violating his rights under s.7 and s.15 of the Charter of Rights and Freedoms.

2The applicant suffered trauma to his left elbow while working out in a fitness centre prior to immigrating to Canada in 1999. He has undergone two operations on his elbow prior to 1999, and a third operation in Canada in 2001. Despite the operations, he suffers from non-union of an olecranation fracture with a broken plate resulting in weakness and an inability to straighten his arm. He has brought two applications for income support (“ODSP”) under the ODSPA as a result of his condition.

3The first application was brought on November 24, 2003. The Disability Adjudication Unit (“DAU”) reviewed the medical documentation provided by the applicant, and on April 13, 2004, the Director of the ODSP advised the applicant of her decision that the applicant was not a person with a disability within the meaning of the ODSPA. This is the first adjudication that the applicant asks us to review.

4The applicant requested an Internal Review of this decision, and provided additional material. On October 5, 2004, the Director affirmed the original decision. This is the second adjudication that the applicant asks us to review.

5Three years later, the applicant commenced an appeal to the Social Benefits Tribunal (“SBT”) from the denial of benefits to him. On November 19, 2007 the SBT declined to hear his appeal. It advised the applicant that by virtue of s.30 of the ODSPA and s.61(2) of Regulation 222/98, the time for appealing a decision of the Director was thirty days, but that no appeal can be commenced more than one year after the date of the Director’s decision, and that therefore no further appeal lies, and accordingly it did not have jurisdiction to hear his appeal.

6An appeal lies from a decision of the SBT to the Divisional Court pursuant to s.31(1) of the ODSPA only on a question of law. The applicant did not avail himself of the right to appeal.

7In April 2008, the applicant made a second application for ODSP benefits and provided the DAU with new material. Based on this material, the DAU determined that the applicant is a person with a disability pursuant to the ODSPA. This decision was based, in particular, on a March 2008 report from a fracture clinic that despite three operations, recent x-rays confirmed that the non-union of the left olecranon fracture had not healed, the plate had broken and degenerative changes in the left elbow had progressed, as well as an orthopaedic surgeon’s note that the applicant’s condition has now resulted in a permanent orthopaedic disability which is irreversible and results in a constant debilitating effect on the use of his left arm, chronic pain and an inability to function.

8The applicant was advised of this decision on August 5, 2008. On September 5, 2008, he was told that his date of grant was May 1, 2008.

9On January 21, 2009, almost five months later, the applicant requested an Internal Review of the September 5, 2008 decision.

10On January 29, 2009, the applicant was advised that the Director would not complete the requested review because the ten day time limit to file a request prescribed by s.58 of Regulation 222/98 had expired. I note that the time to file a request is now 30 days.

11On February 15, 2009, the applicant made a further request by letter for an Internal Review, and asked that the date of grant be retroactive to his first application. He enclosed a letter from his orthopaedic surgeon clarifying his report and indicating that the applicant’s condition had become permanent and irreversible as of March 21, 2004.

12The applicant was again advised that the Director would not consider his request.

13To be clear, the decision challenged in this application was made on April 13, 2004 and confirmed on October 5, 2004. The applicant waited until November 19, 2007, three years after the decision was affirmed, and two years out of time, to attempt to appeal the decision to the SBT. He waited a further two years before commencing this application for judicial review.

Delay

14Judicial review is a discretionary remedy. This Court may decline to consider an application for judicial review on account of the conduct of a party. For example, the Court may refuse to consider an application where the applicant fails to take advantage of an effective right of appeal. The Court may also refuse to consider an application where there is undue delay in bringing the application. In exercising this last discretion, the Court examines the length of delay, whether or not there is a reasonable explanation for the delay and whether the respondent has suffered any prejudice as a result of the delay.

15In this case, the applicant failed to pursue an effective right of appeal to the SBT, and then delayed bringing this application for five years after the internal review. His explanation for his delay was based, first, on linguistic difficulties, and second, on the fact that he only learned in March, 2009, that the grant of benefits in 2008 was as a result of his injury to his elbow, the same injury that was the basis of his earlier requests. With respect to the first argument, the record discloses that the applicant had notice of his right of appeal in the Director’s Internal review decision and that he exercised his appellate rights in relation to other matters in April 2004 and August 2006. His second argument overlooks the fact that the record in 2003 was significantly different than the record in 2008. We do not consider this to be an adequate explanation for the delay.

16In a number of cases, this Court has declined to hear an application brought six months after the decision sought to be reviewed. Delay is particularly significant in an ODSP case. The purpose of income support is to provide for the basic needs and shelter of a person under disability on a monthly basis. The applicant met his basic needs from 2004 to 2008 from Ontario Works or other resources that he was able to obtain. I acknowledge that the Ontario Works payments were less generous than ODSP payments would have been. Nevertheless, if the applicant receives four years of retroactive payment now, the payments will not address the purpose for which income support is given. They will not be used to pay for basic needs or shelter. Finally, while there would be no great prejudice to the respondent if we were to consider this application on the merits, it is fair to say that it would be inconvenient for the respondent to be required to reassess this matter after all these years, and, more importantly, our decision to do so might be perceived as an invitation to those who feel aggrieved by a decision of the Director to circumvent the orderly and circumscribed appeal process contemplated by the Act and apply directly to this Court for relief. Having regard to all of these considerations, we decline to consider this application on the merits.

Merits of the 2004 Decision

17In any event, however, I note that the fundamental argument of the applicant is that the determination that he was not a person with a disability in 2004 is inconsistent with the determination that he was a person with a disability in 2008, since both decisions related to the same medical condition. As I have already noted, this argument overlooks the fact that the medical information provided by the applicant in 2008 was significantly different than the material he provided in 2004. While the evidence in 2004 indicated that there was an operation that could assist him to gain more functionality, the evidence in 2008 indicated that his condition was permanent and irreversible and had a constant debilitating effect. It is not inconsistent for the Director to have come to a different conclusion in 2008 based on a significantly different record. This argument provides no basis for reaching back and disturbing the 2004 decision. Neither do any of the other arguments made by the applicant.

18The applicant did not ask this Court to review the decision of the Director to refuse to internally review the date of grant in the Decision of September 5, 2008. The legislator’s intent is clear from Ontario Regulation 222/98, s.57 that in the applicant’s circumstances he has no right to appeal the Director’s decision on the effective date of eligibility for income support. As a result, if we had been asked to do so, we would have refused to exercise our discretion to consider the application.

Damages

19The applicant also asks this Court to award damages to him on the basis that the denial of disability benefits to him from 2004 to 2008 constitutes a breach of fiduciary duty and a violation of s.7 and s.15 of the Charter. I will leave aside entirely my view of the merits of these requests, and content myself with saying that this Court has no jurisdiction to award damages on an application for judicial review.

20Accordingly, this application is dismissed.

COSTS

Costs

21No order as to costs.