CITATION: Hsieh v. Ministry of Community and Social Services et al, 2017 ONSC 3094
DIVISIONAL COURT FILE NO.: 186/16
DATE: 20170519
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Mei chu hsieh, Applicant
AND:
MINISTRY OF COMMUNITY AND SOCIAL SERVICES AND SOCIAL BENEFITS TRIBUNAL, Respondents
BEFORE: Marrocco A.C.J.S.C., Kiteley and Wilton-Siegel JJ.
COUNSEL: self-represented, Applicant
Mimi Singh, for the Ministry of Community and Social Services
Margaret Leighton, for the Social Benefits Tribunal
HEARD at Toronto: May 18, 2017
ENDORSEMENT
BY THE COURT:
Ms. Hsieh brings an application for judicial review of the decision of the Social Benefits Tribunal (“Tribunal”) dated August 12, 2015 which dismissed her appeal from the decisions of the Director to terminate her benefits and to establish an overpayment.
On June 28, 2010 Ms. Hsieh made an application for ODSP benefits. She signed the Rights and Responsibilities Agreement indicating her consent to complying with conditions of eligibility which included acknowledging her ongoing responsibility to report any changes to her income and assets on a monthly basis. She was approved for benefits effective July 1, 2010.
In 2012, on becoming aware of income and investments that the applicant had declared to Revenue Canada for her 2010 and 2011 taxations years, the Director ordered a review.
Ms. Hsieh attended an eligibility review on January 13, 2013. At that meeting Ms. Hsieh disclosed having had assets of $80,000 in 2010. On the basis of the disclosure, the caseworker determined that Ms. Hsieh had not been eligible for ODSP from her date of grant in July 2010. Ms. Hsieh was asked to provide more financial information.
On March 5, 2013, Ms. Hsieh attended at the ODSP office to further review her eligibility. At that meeting, she disclosed that she owned her residence mortgage-free, had income of $540.67 per month from CPP-D and she had sold the investments of $183,257.43. Following that meeting, on April 15, 2013, ODSP received various documents from two financial institutions indicating that Ms. Hsieh held a securities portfolio with foreign equities and mutual funds in excess of US$250,000 in each of 2010, 2011 and 2012.
On May 27, 2013 the ODSP caseworker was advised by a third financial institution that Ms. Hsieh was in receipt of an annuity of approximately $1300 per month during 2010, 2011 and 2012 (which had been deposited into an undisclosed bank account) and that the policy had terminated in January 2013.
On the basis of Ms. Hsieh’s failure to disclose assets in excess of the prescribed limit, the Director terminated her benefits effective March 1, 2013 and established an overpayment in the amount of $22,852.79.
Ms. Hsieh requested an internal review of the termination decision and of the overpayment decision. In a letter dated April 25, 2013 the ODSP Caseworker advised that the termination of benefits decision was confirmed. In a letter dated July 4, 2013 Ms. Hsieh was advised that her request to review the overpayment decision was denied on the basis that she had made the request after the deadline for submitting the request and the reasons for late filing were not sufficient.
Ms. Hsieh appealed the termination of her benefits decision and the overpayment decision. The Social Benefits Tribunal held a hearing on July 16, 2014 and adjourned for further disclosure from the Director. The hearing was held on May 21, 2015. The Member observed that Ms. Hsieh had not requested an internal review of the overpayment decision within the prescribed time but, for reasons indicated, the Member heard both appeals and, in a decision dated August 12, 2015, the appeals were both dismissed.
Section 31(1) of the ODSP Act provides a right to appeal the Tribunal decision within 30 days to the Divisional Court on a question of law. Ms. Hsieh did not appeal the decision of the Tribunal.
On April 20, 2016, Ms. Hsieh started this Notice of Application for Judicial Review.
The Notice of Application indicates that she seeks judicial review of both of the decisions of the Tribunal but in her oral submissions, she appeared to acquiesce in the termination of benefits decision and she focused on the overpayment decision. We note however that the overpayment decision is based on the same facts as the termination decision.
Judicial review is a discretionary remedy that is not available where the applicant has an adequate alternative remedy. Harelkin v. University of Regina 1979 18 (SCC), [1979] 2 S.C.R. 561 Absent exceptional circumstances that would lead us to grant judicial review, this court ought not to entertain the judicial review application. Counsel for MCSS and for the Tribunal each served a factum raising the issue.
In a letter dated May 12, 2017 addressed to the Divisional Court Ms. Hsieh acknowledged that she had not appealed from the decision of the Tribunal and she provided her explanation as to why she ought to be permitted to pursue the judicial review application.
As indicated above, Ms. Hsieh is familiar with the ODSP administration and adjudicative structure: she applied for benefits and, as the record indicates, she applied for other related benefits; she provided documents and information to the ODSP; she was required to attend on two occasions for an eligibility review; she was informed that her benefits were terminated; she was told that she would be required to pay back all the benefits she had received; she requested an internal review of the overpayments decision which was denied; she requested and received an internal review of the termination of benefits decision which served to confirm the original decision; she appealed to the Tribunal from both decisions; she asked for reconsideration of the Tribunal decision which was denied. She then launched this application for judicial review.
In her written submissions including the Notice of Application, her factum, her letter dated May 12, 2017 and in her oral submissions, Ms. Hsieh has listed many complaints including: she did not apply for ODSP but the caseworker did it when Ms. Hsieh went to inquire about employment; she told the caseworker about her income and assets and she did not fail to disclose; the caseworker did not ask her enough questions; she never got an explanation from the Tribunal as to why her appeal was not successful; she has disposed of the assets that she had or she was not the owner of assets even though they were in her name (which latter fact was not accepted by the Tribunal); she has significant debts including OSAP and she cannot afford to pay the overpayment; the caseworker exceeded her authority in making inquiries of financial institutions; she had trouble communicating with her caseworker and when there was communication, it was unsatisfactory.
Ms. Hsieh firmly believes that she provided all the necessary disclosure in a timely way and she firmly believes that she has answered truthfully to all ODSP inquiries. Nevertheless, none of her complaints provide any exceptional circumstances which justify this court hearing the application for judicial review when Ms. Hsieh did not avail herself of the statutory appeal. Accordingly, the application is dismissed.
ORDER TO GO AS FOLLOWS:
- The Application for Judicial Review of the decision of the Social Benefits Tribunal dated August 12, 2015 is dismissed without costs.
Marrocco A.C.J.S.C.
Kiteley J.
Wilton-Siegel J.
Date: May 19, 2017