Superior Court of Justice – Ontario (Divisional Court)

Re: Laurel Arrowsmith, James Moak (Appellants) And: Director, Ontario Disability Support Program of the Ministry of Community and Social Services (Respondent)

Divisional Court File No.: DC-10-1619 Date: 2012-07-04 Before: Pierce R.S.J., Swinton and Tucker JJ.

Counsel: James Moak, In Person Geoffrey Baker, for the Respondent

Heard at Ottawa: June 13, 2012

Endorsement

[1] The appellants appeal two decisions of the Social Benefits Tribunal (“the Tribunal”). The first is referred to as the merits decision and is dated December 8, 2008. The second is the human rights decision dated April 23, 2010. The Tribunal’s decisions denied their appeal of the decision of the Director of the Ontario Disability Support Program made April 23, 2004 which assessed an overpayment to the appellants in the amount of $60,231.86. The decision of the Director had been affirmed by the Tribunal on November 19, 2004 and the appellants received a reconsideration of that decision which led to the results that are now being appealed.

[2] The Divisional Court, pursuant to s.31(1) of the Ontario Disability Support Program Act, S.O. 1997, c. 25, Sch. B, has jurisdiction to hear an appeal from the Tribunal on a question of law. The standard of review is correctness.

[3] Ms. Arrowsmith did not appear. It was agreed by the appellant Mr. Moak and the respondent that any decision reached by this court would be binding upon Ms. Arrowsmith as well as Mr. Moak.

[4] The issues raised by Mr. Moak in terms of the merits decision all relate to alleged factual or procedural errors. From our review of the decision there was no misapprehension of the evidence by the Member who gave the decision of the Tribunal and, as such, there is no palpable or overriding error for our consideration, which leaves only errors of law to be considered on this appeal.

[5] Mr. Moak argues that the Tribunal failed to mention several of his arguments in its decision including the Limitations Act and estoppel. It is clear from the record that the Member found these to be without merit and accordingly did not include them in his reasons. We agree that these arguments are without merit.

[6] Mr. Moak raised several issues on appeal that were not argued before the Tribunal; for example, estate expenses and designating his vehicle for business. These new issues do not constitute grounds for appeal. Mr. Moak also asserted that the issue of inadequate disposition of assets should have been considered by the Tribunal. However that ground of the Director’s decision was withdrawn at the opening of the hearing and was not considered by the Tribunal. It cannot, therefore, be said to constitute an error of law.

[7] Mr. Moak cited Moon v. Ontario (Director, Disability Support Program), [2002] O.J. No. 2045 (S.C.J.) in support of his argument. We find that Moon has no application to the issues in this appeal. The Tribunal was engaged in fact-finding as to whether an overpayment occurred based on an interpretation of the law.

[8] Mr. Moak also submits that the Member showed bias against him during the proceedings and such bias is evident in his decision. From a review of the interchanges between the two during the hearing, it is obvious that the Member was seeking solely to clarify the evidence by his inquiries. He used this information in making his findings of fact. Although the Member denied Mr. Moak the opportunity to provide further evidence about his inheritance, in his decision he found in Mr. Moak’s favour on that point. The Member did make many adverse findings of credibility in relation to Mr. Moak’s evidence and his actions in trying to shield his assets, and commented negatively on the same. However, these comments and findings are not evidence of bias, but reflect the Member’s assessment of Mr. Moak’s evidence.

[9] Mr. Moak’s argument about his alleged testamentary trust, his business expenses and the piercing of the corporate veil, among other things, were all carefully considered by the Tribunal and were rejected. The decision was based upon its findings of fact based upon the evidence before it and we cannot interfere with those findings.

[10] The Tribunal considered all of the relevant evidence in light of the applicable legislation and provided a well reasoned decision upholding the assessment of the Director. The appellants raise no error of law in their materials or in Mr. Moak’s submissions in terms of either the merits decision or the human rights decision.

[11] Mr. Moak in his appeal on the human rights issue reargues his position seeking a different result. His issues centre on the treatment of his inheritance, his corporation and his business expenses. The Tribunal carefully considered each of his arguments and in a well reasoned and complete decision rejected all of them. We find no error in law in its conclusions. The appellant failed to properly identify any distinction on a prohibited ground in connection with his inheritance and the trust exemptions. The corporate veil had to be pierced to consider the income available to the benefit unit. There is nothing in human rights legislation requiring business expenses to be calculated at the same rate for both disability and Canada Revenue Agency purposes.

[12] Accordingly, the appeal is dismissed. The respondent did not seek costs, so there shall be no order as to costs.

Pierce R.S.J.

Swinton J.

Tucker J.

Date: July 4, 2012