CITATION: Destito v. Social Benefits Tribunal (Ontario), 2012 ONSC 5236
DIVISIONAL COURT FILE NO.: 79/11
DATE: 20120917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. CUNNINGHAM, ASTON AND DUCHARME JJ.
BETWEEN:
VITO DESTITO
Applicant
– and –
SOCIAL BENEFITS TRIBUNAL (ONTARIO), DIRECTOR ONTARIO DISABILITY SUPPORT PROGRAM AND MINISTRY OF COMMUNITY AND SOCIAL SERVICES (MCSS)
Respondents
Abba Chima, for the Applicant
Mimi N. Singh, for the Respondent, Director
Margaret Leighton, for the Respondent, Social Benefits Tribunal
HEARD at Toronto: September 17, 2012
DUCHARME J. (orally)
[1] The applicant seeks judicial review of a decision of the Social Benefits Tribunal dated December 9, 2010. Section 31(1) of the ODSPA provides a right to appeal such decisions to the Divisional Court on a question of law. The applicant failed to exercise his statutory right to appeal. The applicant also had the right to ask the SBT to reconsider their decision. The applicant made no such request.
[2] The applicant sought to supplement the record that was before the Tribunal with affidavit evidence. Even assuming that this affidavit was admissible, it fails to identify any “exceptional circumstances” that would justify permitting the applicant to seek judicial review.
[3] Mr. Chima, without any supporting evidence, informs the Court today that Mr. Destito did not appeal due to various unspecified medical difficulties.
[4] Judicial review is a discretionary remedy. The courts have found that it is not available where the applicant fails to take advantage of any adequate alternative remedy, except in exceptional circumstances. It is clear on the record before us that the right to appeal under s. 31(1) of the ODSPA is an adequate alternative remedy.
[5] The applicant has failed to identify any “exceptional circumstances” that would justify permitting the applicant to bring an application for judicial review. The comments in Stentsiotis v. Ontario (Social Benefits Tribunal) are equally applicable here:
To allow [the applicant] to bring an application for judicial review now would be to undermine the legislative scheme for review of the Tribunal’s decisions.
[6] The application is dismissed. No costs.
DUCHARME J.
A.C.J.S.C. CUNNINGHAM
ASTON J.
Date of Reasons for Judgment: September 17, 2012
Date of Release: September 25, 2012
CITATION: Destito v. Social Benefits Tribunal (Ontario), 2012 ONSC 5236
DIVISIONAL COURT FILE NO.: 79/11
DATE: 20120917
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. CUNNINGHAM, ASTON AND DUCHARME JJ.
BETWEEN:
VITO DESTITO
Applicant
– and –
SOCIAL BENEFITS TRIBUNAL (ONTARIO), DIRECTOR ONTARIO DISABILITY SUPPORT PROGRAM AND MINISTRY OF COMMUNITY AND SOCIAL SERVICES (MCSS)
Respondents
ORAL REASONS FOR JUDGMENT
DUCHARME J.
Date of Reasons for Judgment: September 17, 2012
Date of Release: September 25, 2012