Zaki v. Director, Ontario Disability Support Program

[Indexed as: Zaki v. Ontario (Director, Disability Support Program)]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Molloy, Sachs and Ramsay JJ.

March 6, 2017

137 O.R. (3d) 538 | 2017 ONSC 1324

Case Summary

Administrative law — Extraordinary remedies — Mandamus — Applicant receiving Ontario Disability Support Program benefits because he had paranoid schizophrenia — Director suspending benefits in 2009 and cancelling them in 2012 because applicant failed to respond to requests for information — Social Benefits Tribunal setting aside director's decisions on grounds that director failed to accommodate applicant's disability — Applicant applying for relief when director failed to reinstate benefits or pay arrears from 2009 — Applicant entitled to declaration that effect of tribunal's orders was to reinstate benefits and that director acted improperly by failing to do so — Applicant not entitled to order of mandamus for payment of arrears — Retroactive payment within discretion of director — Tribunal's orders not constituting clear direction to pay arrears — Alternative remedy available as applicant had commenced civil action for damages.

Because of his paranoid schizophrenia, the applicant had received Ontario Disability Support Program benefits for years. In 2009, the director of the Ontario Disability Support Program suspended payment of the benefits because the applicant failed to establish his ongoing entitlement to them by responding to requests for information or attending an in-person meeting. In 2010, the director cancelled the benefits completely. The applicant appealed both of those decisions to the Social Benefits Tribunal. The tribunal set aside the decisions on the ground that the applicant's disability impeded his ability to comply with the director's requests for information and that the director had failed to accommodate that disability. The director failed to reinstate the benefits. The applicant brought an application for declaratory relief and for an order of mandamus compelling the director to reinstate benefits and to pay arrears. After the application was commenced, the director reinstated the applicant's benefits but did not pay any arrears.

Held, the application should be allowed in part. [page539]

Per Molloy J. (Ramsay J. concurring): The director acted improperly and in breach of his public duty by failing to reinstate the applicant's benefits. The applicant was entitled to a declaration to that effect. However, the applicant was not entitled to an order of mandamus compelling the director to pay arrears. The applicant had no clear right to the performance of the duty, as there was no absolute entitlement to retroactive payments under the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25 or the General Regulations under the Act and such payments were therefore within the discretion of the director, and as the tribunal's orders did not constitute a clear direction to pay arrears. Moreover, an alternative remedy was available, as the applicant had commenced an application for damages.

The applicant was entitled to his costs on a full indemnity basis.

Per Sachs J. (dissenting): The applicant was entitled to the declarations sought. He was also entitled to an order of mandamus compelling the director to pay arrears to 2009. Under s. 26(3) of the Act, the director was under an obligation to give effect to the tribunal's orders. The effect of the tribunal's orders was to require the director to reinstate the applicant's benefits retroactively. The director was therefore obligated to pay arrears. In light of the applicant's lack of financial means and his psychiatric condition, it could not be said that the civil action would prove an equally effective, inexpensive, convenient, beneficial and expeditious way for him to collect the retroactive benefits that he was owed. An order of mandamus would have practical value, and there was no equitable bar to such an order. The balance of convenience favoured the granting of an order of mandamus.

Cases referred to

Apotex Inc. v. Canada (Attorney General), 1993 3004 (FCA), [1993] F.C.J. No. 1098, [1994] 1 F.C. 742, 162 N.R. 177, 18 Admin. L.R. (2d) 122, 51 C.P.R. (3d) 339, 44 A.C.W.S. (3d) 349 (C.A.); British Columbia v. British Columbia (Workmen's Compensation Board), 1942 241 (BC CA), [1942] B.C.J. No. 67, [1942] 2 D.L.R. 665, [1942] 2 W.W.R. 129, 57 B.C.R. 412 (C.A.); Brown v. Metropolitan Authority, 1995 4376 (NS SC), [1995] N.S.J. No. 513, 146 N.S.R. (2d) 246, 59 A.C.W.S. (3d) 1041, 1995 CarswellNS 536 (S.C.); D'Errico v. Canada (Attorney General), [2014] F.C.J. No. 370, 2014 FCA 95, 459 N.R. 167, 2014 CarswellNat 2661; Ex Parte Attorney General of New Brunswick; In Re the New Brunswick and Canada Railway Co., 1878 CarswellNB 12; Great Lakes United v. Canada (Minister of the Environment), [2009] F.C.J. No. 484, [2010] 2 F.C.R. 515, 2009 FC 408, 346 F.T.R. 106, 42 C.E.L.R. (3d) 159, 97 Admin. L.R. (4th) 211, 2010EXP-3775; Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, [1979] S.C.J. No. 59, 96 D.L.R. (3d) 14 at 18, 26 N.R. 364, [1979] 3 W.W.R. 676, [1979] 2 A.C.W.S. 168; Kahlon v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 930, [1986] 3 F.C. 386, 30 D.L.R. (4th) 157, 26 C.R.R. 152, 39 A.C.W.S. (2d) 87 (C.A.); R. v. The Severn and Wye Railway Co., 2 B. & Ald. 646; SIU v. Stern, 1961 80 (SCC), [1961] S.C.R. 682, [1961] S.C.J. No. 48, 29 D.L.R. (2d) 29, 61 CLLC Â15,371 at 321; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, [2001] S.C.J. No. 32, 2001 SCC 31, 199 D.L.R. (4th) 1, 269 N.R. 1, J.E. 2001-1034, 151 B.C.A.C. 161, 31 Admin. L.R. (3d) 163, [2001] CLLC Â230-026, 82 C.R.R. (2d) 189, 39 C.H.R.R. D/357, REJB 2001-24105, 105 A.C.W.S. (3d) 83; Whitton v. Canada (Attorney General), [2002] F.C.J. No. 168, 2002 FCA 46, [2002] 4 F.C. 126, 291 N.R. 318, 19 C.C.E.L. (3d) 1, 115 A.C.W.S. (3d) 730, 2002 CarswellNat 304

Statutes referred to

Human Rights Code, R.S.O. 1990, c. H.19

Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B, ss. 5(1), 9(1), 26(3) [page540]

Rules and regulations referred to

O. Reg. 222/98 (Ontario Disability Support Program Act, 1997), s. 53(2)

Authorities referred to

Jones, David Phillip, and Anne S. de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009)

Jones, David Phillip, and Anne S. de Villars, Principles of Administrative Law, 6th ed. (Toronto: Carswell, 2014)

APPLICATION for declaratory relief and for an order of mandamus.

Susan E. Fraser, for applicant.

Darrell Kloeze and Farzin Yousefian, for respondent.

MOLLOY J. (RAMSAY J. concurring): —

A. Introduction

[1] Ali Zaki (the "applicant") seeks an order in the nature of mandamus requiring the Director of the Ontario Disability Support Program ("ODSP") to pay him arrears for ODSP benefits from the date they were suspended (effective December 4, 2009) to the date when they were reinstated (effective July 1, 2016). Mr. Zaki has paranoid schizophrenia and, before the suspension, had received ODSP benefits because of that disability for many years.

[2] Prior to the commencement of this application, Mr. Zaki had successfully appealed twice to the Social Benefits Tribunal of Ontario (the "Tribunal") from decisions of the Director. As a result of those appeals, the Tribunal set aside the Director's decision of December 2009 suspending Mr. Zaki's benefits and the Director's decision of October 1, 2012 cancelling his benefits completely. Both orders by the Tribunal flowed from the Tribunal's finding that the Director had failed to accommodate Mr. Zaki's disability in the manner in which it required Mr. Zaki to provide proof of his ongoing entitlement to ODSP benefits.

[3] Notwithstanding the orders of the Tribunal, at the time this proceeding was commenced on July 22, 2016, Mr. Zaki was still not receiving any benefits. The application, as initially framed, sought three forms of relief:

(a) an order in the nature of mandamus to compel the Director of the ODSP to comply with the decisions of the Tribunal rescinding the suspension and cancellation of his benefits, and thereby reinstating the benefits; [page541]

(b) an order in the nature of mandamus compelling the Director to pay the benefits in arrears from November 2009; and

(c) a declaration that the Director wrongfully failed to exercise statutory power by failing to reinstate benefits.

[4] The application was originally returnable on August 23, 2016. By letter dated August 4, 2016, the Director advised Mr. Zaki that his ODSP benefits were reinstated to July 1, 2016. The matter was adjourned as a result of this change in circumstances and was then argued on December 7, 2016, at which time the primary focus was on whether this court should order the payment of arrears to Mr. Zaki, dating back to December 4, 2009.

[5] The Director has now reinstated Mr. Zaki's benefits. In my view, the relief claimed in para. (a) is therefore moot. He already has the relief which he sought.

[6] For the reasons that follow, I would decline to order the payment of arrears as in my opinion that relief is not appropriately the subject of a mandamus order. However, I find that the effect of the Tribunal's orders setting aside the Director's decisions was to reinstate benefits and the Director acted improperly by failing to pay the benefits at that time. I would therefore issue declarations to that effect and require the Director to make a decision as to any arrears owing.

B. Factual Background

The receipt of benefits and the 2009 suspension

[7] Mr. Zaki is 47 years old. He was diagnosed with paranoid schizophrenia and, as a result, in December 2000, began receiving benefits in the form of income support and mandatory special necessities benefits through the ODSP.

[8] In 2007, Mr. Zaki's family doctor wrote letters on his behalf stating that he was suffering from paranoid schizophrenia and that his need for support was permanent.

[9] At the end of June 2007, the Director terminated Mr. Zaki's mandatory special necessities benefits ("MSN"). Mr. Zaki challenged this termination, both before the Social Benefits Tribunal of Ontario and before the Human Rights Tribunal of Ontario. Neither of these challenges resulted in the reinstatement of his MSN benefits and his counsel was clear that these challenges are not at issue in these proceedings.

[10] In October of 2008, the Director failed to provide Mr. Zaki with his monthly ODSP income support cheque, asserting [page542] that Mr. Zaki had to attend in person to meet with ODSP personnel. This was followed by a demand that Mr. Zaki attend an in-person meeting for what is known as a "Comprehensive Verification Process Interview" ("CVPI"). Mr. Zaki did not respond to the demands to attend for a CVPI and, thus, on December 14, 2009, he was advised that his income support was suspended as of December 4, 2009.

[11] On January 4, 2010, Mr. Zaki requested an internal review of the suspension decision, which was denied. On January 14, 2010, Mr. Zaki was told that the internal review confirmed the suspension and was advised of his right to appeal that decision to the Social Benefits Tribunal. At that time, the Director requested that Mr. Zaki contact the office so that another CVPI could be scheduled.

The appeal of the suspension decision (the "suspension decision appeal")

[12] On February 16, 2010, Mr. Zaki appealed the suspension decision to the Tribunal. On that appeal, Mr. Zaki took the position that his disability interfered with his ability to respond to the Director's demands for information and prevented him from attending an in-person meeting of any kind with ODSP staff.

[13] On April 12, 2012, the Tribunal rescinded the suspension decision, finding that Mr. Zaki's disability impeded his ability to respond to the Director's requests for information and to attend an in-person meeting with the Director or ODSP staff.

[14] In coming to its decision, the Tribunal acknowledged the difficult position that the Director was in when Mr. Zaki failed to respond to its reasonable requests for information. As put by the Tribunal:

The collection of information is vital to keeping the ODSP system working as it should and keeping it accountable to the taxpayers of the province. When ODSP did not get the information, it did what it felt it had to do and suspended the [applicant's] entitlement to income support until it got the requested information. The Tribunal also wishes to point out that this decision has been difficult because the [applicant] should not be "rewarded" for failing to give ODSP the information it requires. The [applicant] cannot simply refuse to give ODSP information and expect to receive income support on a monthly basis. The [applicant] must take steps to provide the requested information, and to date, he has failed to do so. The Tribunal acknowledges the difficult position this has put the ODSP office in.

[15] However, the Tribunal accepted the evidence of Mr. Zaki's doctor that Mr. Zaki's paranoid schizophrenia caused his inability to deal with the Director and the requests the Director was [page543] making for information. In doing so, the Tribunal noted that the requests were being made at the same time as Mr. Zaki had brought a proceeding before the Human Rights Tribunal alleging that the Director's actions in terminating his MSN benefits were discriminatory. Prior to and at the time of the suspension decision both the HRTO and the Director were making requests for information. Further, the decision to suspend his benefits entirely was made shortly before his hearing before the HRTO was scheduled. As put by the Tribunal:

Given the [applicant's] medical state, the Tribunal finds that it is likely that the [applicant] failed to deal with either of these matters because the people involved were from ODSP. It was the people from ODSP who were the Directors in the [applicant's] HR application. It was people from ODSP who had requested information from the [applicant] around the same time he was being asked to deal with ODSP people on the HR issue. It was the people from ODSP who suspended the [applicant's] income support. Dr. d. supported this view in his evidence. Dr. d.'s letters clearly indicate that the [applicant] would have difficulty meeting with anyone from ODSP, and that this difficulty began with the termination of the [applicant's] MSN benefits and continued through his bringing the HR complaint. By the time ODSP was asking the [applicant] for information, his MSN benefits had been terminated and the [applicant] had brought the HR complaint. The timing of the requests for information also was unfortunate as it was so close in time to the HR hearing date. Given the [applicant's] paranoia, it was not difficult to see why the [applicant] thought that this was deliberate timing and another example of how ODSP was treating him poorly.

The Tribunal finds in light of the medical evidence that the [applicant] is a paranoid schizophrenic and was affected adversely because of the ongoing "strife' in which the [applicant] was involved because of the termination of his MSN benefits and the HR proceeding he had brought against the ODSP, that ODSP prematurely suspended the [applicant's] income support. The request from ODSP to the [applicant] for information was clearly poorly timed given that it must have appeared to the [applicant] to have been done, as he said, in retribution for his having brought the HR complaint. Whether or not this as (sic) intentional on the part of ODSP (and there was nothing to support that it was), given the [applicant's] paranoia it was ill-timed and likely had an effect on the [applicant's] ability to deal with the request.

The Tribunal applauds ODSP's attempts to deal with the [applicant] by offering to have someone meet with him in a different location, but this for the [applicant] was not enough. His ability to meet with ODSP staff in any location clearly is impaired by his medical condition. The [applicant] objected always to an "in person" meeting, and the [applicant] is correct that there is no such legislative requirement for an "in person" meeting.

[16] The Tribunal then went on to review the legislation and the case law provided by the Director in support of its decision to suspend Mr. Zaki's benefits because of his failure to provide [page544] the requested information. Essentially, both make it clear how central the provision of information is to the administration of the Ontario Disability Support Program and that the failure to provide such information can result in a finding of ineligibility as opposed to just a suspension.

[17] Notwithstanding this submission, the Tribunal found that it was the nature of Mr. Zaki's disability that impeded his ability to comply with the Director's requests for information and an interview and, therefore, the suspension decision was premature. The Tribunal directed the Director to make alternate arrangements to get the information it required and made it clear that its decision did not relieve Mr. Zaki of the obligation "to provide the information requested of him by the Director".

[18] Under the section of its decision entitled "Order", the Tribunal wrote: "The Tribunal rescinds the decision of the Director."

Events following the suspension decision appeal

[19] Despite the Tribunal's order, the Director did not reinstate Mr. Zaki's benefits.

[20] On May 9, 2012, Mr. Zaki's doctor wrote to the Director offering to facilitate the exchange of information. On May 22, 2012, the Director requested that Mr. Zaki sign a rights and responsibilities form, a consent of disclose and verify information form to the Canada Revenue Agency and a Ministry of Community and Social Services consent form. The Director also set a deadline for the completion of the forms.

[21] Mr. Zaki did not send the Director the required forms. Instead, he treated the Director's May 22, 2012 request as an appealable decision, which the Tribunal found it was not.

[22] Attached to Mr. Zaki's appeal form was a letter from his physician explaining that his illness (paranoid schizophrenia and anxiety disorder) rendered him unable to provide blanket permission as the forms required, as they sought and would provide unspecified personal information about him to undisclosed third parties. Mr. Zaki's physician further stated:

Please accommodate this patient's disabilities and provide an understanding of the "personal information" that is being sought and provided, and a list of persons from whom such "personal information" is sought and provided. This patient's disabilities necessitate that this clarification is provided prior to his consideration and consent to such exchange of information.

[23] The Director responded by explaining the third party checks that might be done and Mr. Zaki sent the Director back a revised consent to disclose and verify information that he had drafted. [page545]

[24] On October 1, 2012, the Director cancelled Mr. Zaki's ODSP benefits in their entirety because of a failure to provide the information required to determine his eligibility.

[25] Mr. Zaki filed an appeal form requesting that the Director comply with the suspension decision appeal order and pay him income support for the month of October 2008. On November 2, 2012, the Tribunal found that it had no jurisdiction to issue such an order because no new decision had been made by the Director that could be the subject of an appeal.

[26] On May 6, 2013, Mr. Zaki requested an internal review of the Director's cancellation decision, and on May 13, 2013 the Director confirmed that decision.

[27] Mr. Zaki appealed the cancellation decision to the Tribunal.

The cancellation decision appeal

[28] On December 10, 2014, the Tribunal issued an order rescinding the Director's decision to cancel Mr. Zaki's benefits. The Tribunal found that Mr. Zaki was not seeking to be relieved of the obligation to comply with a requirement to disclose under the legislation, but was seeking to be accommodated for an untreated psychiatric disability. Further, the Tribunal found that Mr. Zaki had very clearly told the Director what his difficulties were and what he required for accommodation purposes.

[29] In its decision, the Tribunal held:

[86] The Director "indirectly discriminated against the [applicant] while providing him with a aeservice', namely the provision of income support."

[90] "[T]he failure of the Director to explore options for accommodation [for a mentally ill recipient to function in the same way as a recipient who is not mentally ill] is, in and of itself, a violation of the Code."

[94] "The Director argued, and I agree, that there is a legislative requirement for information to be provided by persons, like the [applicant], who request income support. However, there is, as the [applicant] stated, nothing sacrosanct in the particular form the Director used and that it sent to the [applicant]. Even if there was, there was no reason the Director could not have accommodated the [applicant] by explaining clearly to him exactly with whom it was going to share his information in light of his disability."

[95] "I find, as in D.T. above, that the [applicant] failed to provide information as of the Director's October 1, 2012 decision because the Director did not accommodate the [applicant] by explaining clearly to him with whom the Director was going to share the [applicant's] information, given the [applicant's] disability of paranoid schizophrenia. As such, I find that the Director's decision to cancel the [applicant's] income support on October 1, 2012 was premature."

The "Order" section of the Cancellation Decision Appeal reads "The Director's decision is rescinded." [page546]

[30] In its decision, the Tribunal noted that further information had been provided to the Director by Mr. Zaki subsequent to the cancellation decision. These documents exceeded 30 pages in length and included the signed and witnessed consent forms that the Director had initially requested (Mr. Zaki was able to provide this information because, for a brief period of time, he had access to the psychotropic medication that he requires to treat his conditions). The documents also included documents from Mr. Zaki's physician, Mr. Zaki's brother and Mr. Zaki's best efforts to answer the questions posed to him by the Director.

Events following the cancellation decision appeal

[31] On December 23, 2014, the Director's counsel wrote to Mr. Zaki that ". . . there is only one piece of vital information that keeps you from getting income support. ODSP still does not know the source and amount of income that you have used to pay for your daily expenses for all the years you have not received social assistance, from December 2009 to today."

[32] On March 19, 2015, Mr. Zaki provided the Director's counsel with a further ten pages of documents in which he provided his explanation as to his economic circumstances during that time period.

[33] Mr. Zaki received no response to this correspondence and, thus, on July 22, 2016, he commenced this application for mandamus. The application was returnable on August 23, 2016.

[34] In August of 2016, prior to the initial return date of the application, the Director advised Mr. Zaki that his income support payments would be resuming as of July 1, 2016.

The civil action

[35] On May 30, 2016, Mr. Zaki issued a statement of claim in the Ontario Superior Court of Justice (action #CV-16-553679) against Ontario, the Director of OSDP and three employees thereof seeking, inter alia, $10 million for general, punitive and aggravated damages and a further $1 million for repeated infringements of his human rights. The subject matter of the action is the suspension and cancellation of his ODSP benefits and his consequential damages (which would include arrears). A number of causes of action are pleaded including misfeasance in public office and infringement of human rights.

[36] None of the named defendants responded to that action and they were noted in default. However, Mr. Zaki subsequently [page547] agreed to set aside the noting in default and the defendants then brought a motion to strike out portions of the action. Although that motion had not been argued at the time of the argument of this application, we were advised that neither Ontario nor the Director were seeking to set aside the causes of action based on misfeasance in public office or breach of human rights.

C. The Issues

[37] The Director takes the position that the request for an order reinstating benefits is now moot. Counsel for Mr. Zaki takes no issue with that proposition, but argues that the effect of the Tribunal's orders was to place Mr. Zaki back on benefits and that the Director is obliged by those orders to pay all of the arrears in benefits from the date of the suspension in December 2009 to the point when benefits started again on July 1, 2016. Therefore, Mr. Zaki seeks an order in the nature of mandamus ordering payment of those arrears.

[38] Counsel for the Director submits that the application should be dismissed in its entirety. He argues that the prerequisites for an order of mandamus are not met because there is no clear legal right to payment and any decision as to entitlement to arrears is in the discretion of the Director. The Director also objects to the appropriateness of declaratory relief on the basis that the Tribunal's orders did not require the reinstatement of benefits.

D. Analysis

The effect of the Tribunal's orders and entitlement to declaratory relief

[39] Section 24(3) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (the "Act") provides that "[t]he Director shall give effect to the Tribunal's directions under this section". Prior to November 2009, there had been a determination that Mr. Zaki was entitled to ODSP benefits. Entitlement to benefits can be reassessed on an ongoing basis as the needs and resources of a recipient may change over time. Believing that Mr. Zaki had failed to properly provide verification of his entitlement, the Director suspended his benefits as of December 4, 2009. By its suspension appeal decision dated April 12, 2012, the Tribunal found that the Director had failed to properly accommodate Mr. Zaki in the verification process and set aside the decision suspending benefits. Given that the benefits were no longer suspended, the immediate effect of the Tribunal's order should have been that, at least as [page548] of April 12, 2012, Mr. Zaki was back on benefits. The ongoing entitlement to benefits, however, was subject to Mr. Zaki's responsibility to co-operate in providing proper information to the Director and the Director's obligation to properly accommodate Mr. Zaki's special needs with respect to the manner in which that information was to be provided. This requirement was specifically confirmed by the Tribunal.

[40] Going forward from April 12, 2012, the Director had an obligation to accommodate Mr. Zaki's disability. During that ongoing period, Mr. Zaki should have been receiving benefits, but was not. If at some point it was determined that Mr. Zaki was not fulfilling his obligation to co-operate by supplying information, even when his special needs were accommodated, it may have been appropriate to suspend or cancel his benefits. However, in the meantime, given that the suspension decision was rescinded, he should have been receiving benefits.

[41] On October 1, 2012, the Director cancelled Mr. Zaki's benefits in their entirety, again alleging that he had failed to provide appropriate information to verify his entitlement to benefits. By order dated December 10, 2014, the Tribunal found that the Director had again failed to properly accommodate Mr. Zaki and had breached his rights under the Human Rights Code, R.S.O. 1990, c. H.19. The Tribunal rescinded the Director's cancellation of benefits. The effect of that order should have been that Mr. Zaki was again on benefits as of December 10, 2014, but once again subject to his obligation to provide information to support his entitlement.

[42] Notwithstanding the Tribunal's order of December 10, 2014, the Director did not reinstate Mr. Zaki's benefits until August 2016 (after this proceeding had been commenced), effective July 1, 2016.

[43] In my opinion, the Director acted improperly and in breach of his public duty by failing to give effect to the Tribunal's suspension appeal order, specifically by failing to reinstate Mr. Zaki's benefits as of April 12, 2012. I would issue a Declaration to that effect.

[44] Further, in my opinion, the Director acted improperly and in breach of his public duty by failing to give effect to the Tribunal's cancellation appeal order, specifically by failing to reinstate Mr. Zaki's benefits as of December 10, 2014. I would issue a Declaration to that effect.

Entitlement to mandamus for payment of arrears

[45] Mandamus compels an individual to perform a statutory duty imposed on him or her. It is used "when the statutory [page549] delegate refuses to exercise the power it is compelled to use" (David Phillip Jones and Anne S. de Villars, Principles of Administrative Law, 6th ed. (Toronto: Carswell, 2014) at p. 673).

[46] In Apotex Inc. v. Canada (Attorney General), 1993 3004 (FCA), [1993] F.C.J. No. 1098, [1994] 1 F.C. 742 (C.A.), the Federal Court of Appeal reviewed and summarized the conditions that must be fulfilled before a court will issue an order of mandamus.

(1) There must be a public duty to act.

(2) The duty must be owed to the applicant.

(3) There must be a clear right to expect performance of the duty, specifically:

(a) the applicant must satisfy all the conditions precedent giving rise to the duty; and

(b) the applicant must have made a demand that the duty be performed, and the decision maker must have failed to comply with the demand either expressly or impliedly by, for example, failing to respond to the demand within a reasonable time.

(4) The applicant must have no other remedy available to him or her.

(5) The order sought must be of some practical value of effect.

(6) There must be no equitable bar to the court granting mandamus.

(7) The balance of convenience must favour the granting of mandamus.

[47] There is also jurisdiction to grant mandamus in exceptional circumstances where remitting a matter to an administrative decision-maker for re-decision threatens to bring the administration of justice into disrepute (D'Errico v. Canada (Attorney General), [2014] F.C.J. No. 370, 2014 FCA 95, 2014 CarswellNat 2661, at para. 16).

[48] For purposes of this decision, it is not necessary for me to review each and every one of these prerequisites. A failure to meet any of the prerequisites is fatal. In my view, Mr. Zaki has failed to satisfy two of the preconditions: (1) there is no clear right to performance of the duty; and (2) there is another available remedy. [page550]

Clear right to expect the performance of the duty

[49] Section 53(2) of the General Regulation under the Act (O. Reg. 222/98) provides the Director with the authority to pay retroactive support but sets no parameters as to when retroactive payments must be made, or in what amounts. It states:

53(2) Income support shall not be paid with respect to a period of more than one month at any one time unless the payment is a retroactive calculation or made in accordance with a decision of the Tribunal or the court.

[50] The word "or" in this provision should be given its plain and ordinary meaning as presenting alternative possibilities. Monthly payments are the norm. However, the Director may make a payment that is for more than a month in two instances: (1) where it is a retroactive calculation; or (2) where it is made in accordance with a decision of the Tribunal or court. Both preconditions do not need to be met. Sometimes a court or Tribunal order may require retroactive payment, but other forms of orders might also be possible. Further, where the Director is of the view that making a retroactive payment of some kind is appropriate, the Director has the authority, but not the obligation, to do so. Thus, there does not need to be a Tribunal or court order for the Director to make a retroactive payment, but if there is such an order, it would authorize the payment.

[51] There is no absolute entitlement to a retroactive payment of the first kind, nor are there any guidelines or parameters in the legislation or regulations as to when retroactive payments might be appropriate, or in what amounts. Such payments are therefore within the discretion of the Director. Mandamus is only available where there is a clear legal duty on the government official to carry out a particular responsibility. Where, as here, an official has a discretion to exercise, mandamus will not issue to compel him or her to exercise that discretion in a particular way: Kahlon v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 930, [1986] 3 F.C.R. 386, 30 D.L.R. (4th) 157 (C.A.), at para. 3. Accordingly, an order of mandamus is not an appropriate remedy if the retroactive payment sought is of the first kind.

[52] The question, then, is whether in the situation before the court, we are dealing with the first kind of retroactive payment (in the discretion of the Director) or the second kind (at the direction of the Tribunal).

[53] If the order of the Tribunal constitutes a clear direction to pay arrears, the combination of s. 53(2) of the Regulation [page551] (authorizing payments of more than one month) and s. 24(3) of the Act (requiring the Director to give effect to directions of the Tribunal) would obligate the Director to make the retroactive payment. That would constitute a clear right to expect the performance of the Director's duty and mandamus would be appropriate. However, I do not see the Tribunal's orders as providing that clear direction.

[54] The Tribunal rescinded the Director's orders, which, as I have said above, had the effect of reinstating benefits as of the date of the Tribunal's orders. These are orders that look to the future. ODSP payments are meant to provide actual compensation for tangible costs such as housing, drugs and special diets. The fact that Mr. Zaki was entitled to have his benefits reinstated as a result of each of the Tribunal's orders does not mean that he is automatically entitled to recover arrears for the entire period he was off benefits. There are factual issues that may need to be canvassed in order to make that determination. For example, were there periods of time when the Director was acting appropriately, but Mr. Zaki was unreasonably delaying in providing verification of his entitlement? Were there periods of time when Mr. Zaki was residing with friends or family who are not seeking recovery of rent for that period, such that no housing costs were incurred? Should arrears for a supplement for a special diet be paid if the special diet was never purchased? This court is not in the position to make such factual determinations and therefore should not simply order that arrears be paid.

[55] The Director has not yet made a specific ruling as to Mr. Zaki's entitlement to arrears. Judicial deference requires that the initial decision be made by the Director, subject to the usual appeal and judicial review avenues after that has been done. It is not a function appropriately carried out on judicial review by this court. In carrying out the statutory duty to consider and determine the right to arrears over the entire period of time between December 2009 and July 1, 2016, the Director must take into account and give effect to the orders of the Tribunal and the declarations issued by this court as to the effect of those orders.

[56] Accordingly, I find mandamus is not an available remedy for the payment of arrears. However, I would issue an order that the Director consider Mr. Zaki's entitlement to arrears in accordance with the Tribunal orders and the directions of this court and render a decision within a reasonable period of time. [page552]

Another available remedy

[57] In addition, mandamus is not appropriate where there are alternative remedies available to the party. Mr. Zaki has already commenced a civil action seeking damages. That is a far more appropriate forum in which to address the various wrongs that he alleges and any appropriate remedy or remedies for those wrongs. I have grave concerns about the manner in which the Director exercised statutory authority in this case, and in particular the failure of the Director to give effect to orders of the Tribunal. However, mandamus is not the appropriate remedy to reward the claimant, nor to punish the Director. Concern that a failure to order arrears amounts to validation of the acts of the Director in failing to accommodate Mr. Zaki's disability is not a basis for the issuance of mandamus, although the acts of the Director might be the basis for a claim in damages. Likewise, mandamus should not issue an order to vindicate the rights of the applicant, although the civil action might serve that purpose.

E. Conclusion and Order

[58] Accordingly, the application is granted in part in that declarations will issue as to the effect of the Tribunal's orders. In other respects, the application is dismissed. The following orders shall issue:

(1) a declaration that the Director acted improperly and in breach of his public duty by failing to give effect to the Tribunal's suspension appeal order, specifically by failing to reinstate Mr. Zaki's benefits as of April 12, 2012;

(2) a declaration that the Director acted improperly and in breach of his public duty by failing to give effect to the Tribunal's cancellation appeal order, specifically by failing to reinstate Mr. Zaki's benefits as of December 10, 2014; and

(3) the matter is remitted to the Director for consideration and decision, in accordance with the decision of this Court and the orders of the Tribunal, as to Mr. Zaki's entitlement to arrears.

F. Costs

[59] The Director was more than dilatory in responding to this application. Benefits were reinstated virtually on the eve of the [page553] initial date set for hearing. A factum and responding materials were delivered late, with the result that the hearing was adjourned. Mr. Zaki is without assets to pay counsel to pursue this matter on his behalf and it would be exceedingly difficult for him to represent himself in the proceeding. The actions of the Director in refusing to place Mr. Zaki back on benefits in response to the Tribunal's orders made it necessary for Mr. Zaki to turn to the courts to obtain his rights. In my view, he should be entitled to costs on a full indemnity basis. I would award those costs in the amount of $33,000 as claimed.

[60] SACHS J. (dissenting): -- I agree with the majority that declarations should issue that the Director acted improperly and in breach of his public duty in failing to give effect to the Tribunal's suspension appeal order and the Tribunal's cancellation appeal order. However, for the reasons that follow, I find that the effect of those decisions is that Mr. Zaki's benefits should have been reinstated as of December 4, 2009.

[61] I also agree with the majority's disposition with respect to costs. Substantial indemnity costs are warranted even if no order in the nature of mandamus is made.

[62] I disagree with the majority's conclusion that this is not an appropriate case for the court to issue an order in the nature of mandamus requiring the respondent Director to pay the applicant arrears of income support benefits.

[63] I accept the majority's summary of the factual background giving rise to this application and its summary of the conditions that must fulfilled before a court will issue an order of mandamus. In these reasons, I propose to go through each of those conditions and explain my view as to why each of them has been met.

Public Duty to Act

[64] The first condition that must be fulfilled before a court will issue an order of mandamus is that there must be a public duty to act.

[65] Section 26(3) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (the "Act") provides that "[t]he Director shall give effect to the Tribunal's directions under this section". Consequently, if the effect of the Tribunal's decisions rescinding the suspension and cancellation of the applicant's benefits was to require the Director to reinstate those benefits retroactively, then the Director has a public duty to give effect to those decisions. [page554]

[66] In the suspension appeal decision, the Tribunal does not specifically direct that the respondent retroactively reinstate the applicant's benefits. However, the terms of the order are clear. The Director's decision suspending the applicant's benefits was rescinded. In my view, and contrary to the position of the majority, the clear implication of a decision to rescind is that the decision being rescinded has no effect and therefore the applicant should be restored to the position he was in before that decision was made. In other words, instead of being suspended in December of 2009, his benefits should have continued to be paid. To do as the majority suggests is the same as allowing the Director's suspension decision to stand until the date of the Tribunal's order, which is directly contrary to the explicit terms of that order.

[67] As the majority notes, s. 53(2) of the General Regulation under the Act (O. Reg. 222/98) provides the Director with the authority to pay retroactive support in order to comply with a decision of the Tribunal or a court.

Duty Owed to the Applicant

[68] The second precondition for mandamus is that the duty must be owed to the applicant. In this case, there can be no dispute that if there is a duty on the part of the Director to reinstate the benefits, it is owed to the applicant.

Clear Right to Expect the Performance of the Duty

[69] The third precondition is that there must be a clear right to expect performance of the duty. Under this requirement, the applicant must have satisfied all conditions precedent giving rise to the duty and the decision maker must have failed to comply with a demand to perform the duty, either expressly or impliedly.

[70] In this case, there is no dispute that the respondent refused to comply with the applicant's demand to reinstate his benefits. Where the dispute lies is on the question of whether the applicant has failed to satisfy one of the condition precedents for the provision of income support, namely, providing the necessary information to determine eligibility for support.

[71] Section 5(1) of the Act provides that a person is not eligible for income support unless "the person and the prescribed dependants provide the information and the verification of information required to determine eligibility . . .". Section 9(1) states that if a support recipient fails to comply with or meet a condition of eligibility for income support, the Director shall, [page555] as prescribed, do one of a number of things, including suspending that person's income support.

[72] In this case, the respondent took the position before the Tribunal that its suspension decision was justified because that applicant had refused to provide it with the necessary information to determine the applicant's eligibility for support. The Tribunal accepted that the respondent did not have the necessary information to determine the applicant's eligibility for support, but rejected the respondent's submission that this justified its suspension decision. On the contrary, the Tribunal explicitly found that the suspension decision was premature and that, therefore, the decision should be rescinded.

[73] The basis for the Tribunal's findings that the Director's decisions suspending and cancelling the applicant's benefits should be rescinded was the Tribunal's conclusion that the respondent's demands for information from the applicant failed to accommodate his disability. Thus, by virtue of his disability, he could not comply with those demands.

[74] If, as the respondent argues, it had no duty to pay benefits during the period that the applicant did not comply with its demands for information because of the respondent's failure to accommodate to the applicant's disability, this would penalize the applicant for his disability and reward the respondent for its behaviour in failing to accommodate that disability. It would also have the effect of undermining the Tribunal's decision that the respondent's actions in suspending and cancelling the applicant's benefits were premature and ought to be rescinded.

[75] Prior to his benefits being suspended, the applicant had satisfied the respondent of his eligibility for income support. The respondent has now accepted that the applicant is entitled to income support and there is no evidence of any circumstance that would have disentitled the applicant to income support during the period that he was not in receipt of benefits.

[76] In para. 54 of its decision, the majority cites a series of factual issues that need to be canvassed in order to determine the applicant's entitlement to retroactive support. In my view, there is no basis on the record to suggest that there are genuine factual disputes about the applicant's need and entitlement to the benefits he was receiving as of December 4, 2009. In this regard, I do not accept the respondent's submission that because agencies such as the Canada Revenue Agency and Equifax (both of which are agencies commonly used to confirm information about recipients) had no information about the applicant there is reason to believe that the applicant was not eligible for income [page556] support. Filing no income tax returns and having no credit information is totally consistent with having no income to report and no assets to borrow against -- both of which are facts that support an eligibility for income support.

[77] If there is any evidence, it is evidence of the drastic and threatening effect the Director's actions in refusing to reinstate benefits have had on the applicant's health. According to his doctor, his poverty during the period his benefits were suspended rendered him unable to sequester adequate caloric intake so that he lost more than 20 per cent of his body weight, which for him was a dangerous weight loss. According to the same report, the Director's actions also put the applicant at risk of homelessness.

[78] There is jurisdiction to grant mandamus in exceptional circumstances where remitting a matter to an administrative decision-maker for re-decision threatens to bring the administration of justice into disrepute (D'Errico v. Canada (Attorney General), [2014] F.C.J. No. 370, 2014 FCA 95, 2014 CarswellNat 2661, at para. 16). To deprive a vulnerable citizen of basic benefits in violation of his constitutional right to be free from discrimination, and then to refuse to retroactively pay for those benefits would, in my view, bring the administration of justice into disrepute. This is particularly so when the effect of the deprivation was to render that citizen unable to avail himself of his basic right to food and shelter.

[79] This brings me to the majority's finding that mandamus should not issue because the Director has a discretion as to whether or not to make retroactive payments. Where a statutory delegate has a discretion as to how to exercise their duty, the court will not issue an order that has the effect of directing that official to exercise their discretion in a particular manner.

[80] As already noted, under s. 26(3) the Act, the Director is under an obligation to give effect to the Tribunal's orders. For the reasons I have already articulated, it is my view that giving effect to the Tribunal's orders in this case required restoring the applicant to the position he was in before the orders were made. Thus, contrary to the view of the majority, the Director was obligated to pay the arrears in question.

[81] Where there is only one legal way in which the statutory delegate can exercise its discretion, courts have ordered the result. For example, in Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, [2001] S.C.J. No. 32, 2001 SCC 31, the Supreme Court held that the only basis upon which the decision maker denied the accreditation of [page557] a university was an irrelevant consideration. As a result, rather than remit the matter, the court issued an order of mandamus compelling the institution's accreditation.

[82] For these reasons, I find that the applicant had a clear right to expect that the respondent would fulfill its duty and pay him the benefits he would have received were it not for the respondent's decisions to suspend and cancel his benefits, decisions that the Tribunal rescinded.

No Other Remedy

[83] The majority has found that mandamus is not available because Mr. Zaki has commenced a civil action seeking damages. In their view, this is a more appropriate forum for him to seek redress.

[84] I disagree. The requirement that applicant have no other adequate remedy available to him or her in order to benefit from mandamus means that the other remedy must be equally convenient and effective.

[85] In Harelkin v. University of Regina, 1979 18 (SCC), [1979] 2 S.C.R. 561, [1979] S.C.J. No. 59, the appellant sought an order of mandamus to compel the university to reinstate him in his studies from which he had been expelled. The respondent opposed the request on the basis that the appellant had an adequate alternative remedy in the form of an appeal to the university senate. In dealing with this argument, the Supreme Court cited with approval O'Halloran J.A.'s articulation in British Columbia v. British Columbia (Workmen's Compensation Board), 1942 241 (BC CA), [1942] B.C.J. No. 67, 57 B.C.R. 412 (C.A.) of the no alternative remedy criterion as it relates to mandamus, at para. 53:

Once it appears a public body has neglected or refused to perform a statutory duty to a person entitled to call for its exercise, then mandamus issues ex debito justitiae, if there is no other convenient remedy . . . If however, there is a convenient alternative remedy, the granting of mandamus is discretionary, but to be governed by considerations which tend to the speedy and inexpensive as well as efficacious administration of justice[.]

[Citations omitted]

[86] It bears noting that the requirement of an equally effective and expeditious remedy has deep roots in the jurisprudence. In 1819, Abbott C.J. held that if another remedy "equally convenient, beneficial and effectual as a mandamus" is available, then mandamus should not be granted (R. v. The Severn and Wye Railway Co., 2 B. & Ald. 646. Cited in Ex Parte the Attorney General of New Brunswick; In Re the New Brunswick and Canada Railway Co., 1878 CarswellNB 12, at para. 4.) [page558] This statement of the law was codified for much of the 20th century in the Quebec Civil Code of Procedure. In interpreting this section of the Civil Code of Procedure, the Supreme Court in SIU v. Stern, 1961 80 (SCC), [1961] S.C.R. 682 [1961] S.C.J. No. 48 stated, at para. 15, that

. . . the words "equally convenient, beneficial and effectual" . . . are designed to check an extreme tendency of the Courts to refuse mandamus whenever there is another legal remedy, although such remedy is not so advantageous or effectual.

[87] In Whitton v. Canada (Attorney General), [2002] F.C.J. No. 168, 2002 FCA 46, 2002 CarswellNat 304, the Federal Court of Appeal determined that an order of mandamus compelling the Minister of Human Resources Development Canada to pay the appellant his old age security benefits was appropriate as "the most expeditious and secure method available to the appellant is mandamus" (para. 36).

[88] Similarly, in Great Lakes United v. Canada (Minister of Environment), [2009] F.C.J. No. 484, 2009 FC 408, [2010] 2 F.C.R. 515, at paras. 72 and 241, the Federal Court cited with approval the applicant's submission that "the mere existence of another remedy does not preclude the granting of mandamus. It is the adequacy of other remedies as a aebetter remedy' that must be assessed".

[89] In addition, there is case law supporting the proposition that the availability of a civil action is not necessarily an equally effective remedy. In Brown v. Metropolitan Authority, 1995 4376 (NS SC), [1995] N.S.J. No. 513, 1995 CarswellNS 536 (S.C.), the court reasoned that, "[b]ecause of the great cost and the length of time that it would take to initiate and conduct an individual action, I do not consider that to be either an adequate remedy or an equally convenient remedy" (para. 6).

[90] In this case, Mr. Zaki has commenced a civil action. However, in my view it cannot be argued that given Mr. Zaki's clear lack of financial means and his psychiatric condition that this action will prove an equally effective, inexpensive, convenient, beneficial and expeditious way for him to collect the retroactive benefits that he is owed.

Practical Value or Effect

[91] In this case, it is clear that the order of mandamus would have practical value; it would result in the applicant receiving retroactive social assistance. [page559]

No Equitable Bar

[92] To benefit from an order of mandamus, an applicant must not be equitably barred. This reflects the fact that mandamus is a discretionary remedy. Thus, courts may refuse to issue mandamus where the applicant "has disregarded orders, or dealt with the tribunal in bad faith, been deceitful, withheld evidence or engaged in fraudulent conduct", or sought the remedy for improper reasons (David Phillip Jones and Anne S. de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009), at 687 and 673).

[93] On the facts of this case, none of these factors apply. The respondent does raise an argument about the applicant's delay in appealing its cancellation decision. That decision was made in October of 2012, and the applicant did not file his appeal of that decision until May of 2013.

[94] Because of the applicant's psychiatric condition and the impact that the persistent denial of benefits had on his ability to survive, I do not find that this delay rises to the length of delay that would disentitle the applicant to the relief he is requesting. Given the multiplicity of reviews the applicant had previously sought, it cannot be inferred that he was acquiescing to the cancellation of his benefits.

Balance of Convenience

[95] Granting an order of mandamus for retroactive payments in this case will result in a significant tangible benefit for the applicant. The respondent submits that granting a large retroactive payment to the applicant will not address the purpose for which income support is given, namely, to pay for basic needs and shelter, not to provide for a lump sum.

[96] In assessing this submission, it is important to note that this is not a case where the applicant is now in a position to receive a lump sum payment because he sat on his rights.

[97] To accede to the respondent's argument in this case would result in failing to provide any meaningful vindication for the applicant's violation of his rights. It would also have the effect of validating the actions of the respondent in failing to accommodate the applicant's disability. The only person who would suffer the consequences of those actions would be the applicant, the party whose rights were violated. This, in turn, would have an adverse effect on the repute of the administration of justice.

[98] Thus, the balance of convenience favours the granting of an order of mandamus. [page560]

Conclusion re Mandamus

[99] For these reasons, I find that each of the requirements for an order of mandamus for retroactive income support has been met.

Quantum of Income Support

[100] The respondent's duty once the Tribunal rescinded its suspension decision was to reinstate the benefits the applicant was receiving as of December 4, 2009, when his benefits were suspended. As already noted, when his benefits were suspended the applicant was receiving a basic needs benefit, a shelter benefit and a special diet benefit. He was not receiving a mandatory special necessities benefit. Therefore, the respondent had no duty to pay him such a benefit.

Conclusion

[101] For these reasons, in addition to orders for declaratory relief as detailed above, I would grant an order in the nature of mandamus requiring the respondent to pay to the applicant arrears of income support benefits consisting of a basic needs benefit, a shelter benefit and a special diet benefit for the period from December 4, 2009 to July 1, 2016.

Application allowed in part.

End of Document