COURT FILE NO.: 256/06

DATE: 20080121

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: DOUGLAS SMITH (appellant)

• and -

director, ontario disability support program (Respondent)

BEFORE: LANE, MOLLOY and GANS JJ.

COUNSEL: Sheila Cuthbertson, for the for the Appellant

Geoffrey Baker, for the Respondent

HEARD: December 18, 2007

E N D O R S E M E N T

MOLLOY J:

Introduction

[1] The appellant has been in receipt of social assistance disability benefits under applicable Ontario provincial legislation since May 1, 1992. As of June 1998, he was automatically “grandfathered” into the new regime under the Ontario Disability Support Program Act, 1997, S.O. 1997, C. 25 (“the Act”). Under the Act, a person receiving disability benefits is entitled to an additional allowance of up to $250 per month upon filing an application, with verification from a doctor, that he or she requires a special diet. In November 2003, Mr. Smith filed such an application and was awarded the additional maximum allowance of $250 monthly, retroactive to November 1, 2003. His entitlement to that allowance on an ongoing basis is not disputed.

[2] In 2005, Mr. Smith applied to receive the additional $250 allowance retroactively from June 1, 1998 to November 1, 2003, and filed supporting evidence from a doctor that he required the special diet throughout that period of time. The Director under the Act denied that application. Mr. Smith requested an internal review of the Director’s decision, which resulted in the Director’s decision being upheld. Mr. Smith then appealed under the Act to the Social Benefits Tribunal (“the Tribunal”). After a hearing, the Tribunal dismissed Mr. Smith’s appeal, by decision dated February 21, 2006. Mr. Smith’s request for reconsideration of that decision was dismissed by the Tribunal by letter dated May 3, 2006.

[3] Mr. Smith now appeals to the Divisional Court from the February 21, 2006 decision of the Tribunal and seeks either an order that he is eligible for the retroactive special diet allowance back to June 1, 1998, or, alternatively, an order directing a new hearing. He argues that: (a) the Tribunal erred by fundamentally misapprehending the facts; (b) the Tribunal erred in law by failing to interpret the applicable Regulation retroactively; and (c) the Tribunal failed to comply with rules of natural justice by basing its decision on a lack of corroborative evidence without giving him notice that such evidence would be required.

Standard of Review

[4] An appeal lies to this Court only on a question of law: s. 31(1) of the Act. The parties agree that the appropriate standard of review is “correctness”, a position that is consistent with the case law: see e.g. Gray v. Ontario (Disability Support Program Director) (2002), 59 O.R. (3d) 364 (C.A.). The Tribunal is also required to comply with principles of natural justice and procedural fairness: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; Kalin v. Ontario College of Teachers (2005), 75 O.R. (3d) 523 (Div.Ct.).

Fundamental Misapprehension of Evidence

[5] The fundamental misapprehension of evidence point was not pressed by counsel for the appellant at the hearing before us and I will therefore not deal with the point in any depth. However, even if the argument could be characterized as a legal issue (which is doubtful), I see no merit in it. The Reasons of the Tribunal Member demonstrate that he was alive to the evidence placed before the Tribunal by the parties and made his decision based on that evidence. The conclusions he reached did not involve any misapprehension of that evidence.

Error of Law

[6] The Regulation that was in place in 2005 when Mr. Smith made his application for retroactive benefits provided that if an approved health professional certifies that a person in receipt of benefits requires a special diet and provides details of the special diet required, an additional allowance will be paid in an amount that is the lesser of “the additional cost required to provide the special diet, and $250.00”: Ontario Regulation 222/98 s. 30(1) para 4.

[7] Also, in 2005, there was a policy directive within the Ministry stipulating that an allowance for a special diet would begin on the date upon which the application was “completed and signed by the approved health professional”.

[8] The appellant argues that the Tribunal erred in following the Ministry policy directive and erred in failing to interpret the Regulation as having retroactive effect. The appellant submits that if the Regulation had been correctly interpreted, Mr. Smith would have been entitled to the special diet allowance backdated to when it would first have been medically required, regardless of when the application itself was filed.

[9] In order to decide this case, it is not necessary to determine whether or not the Regulation applies retroactively, and I refrain from doing so. The applicable Regulation for the period of time covered by Mr. Smith’s application has since been amended (in November 2005). Both parties concede that under the wording of the existing Regulation it is clear the special diet allowance is only available from the date an application is made, and not before. There are no circumstances here that would make the new wording relevant to the correct interpretation of the previous wording. In this case, the Tribunal Member did not rule that the Regulation in place at the time could never be given retroactive effect. On the contrary, the Member recognized that there could be circumstances justifying granting such an allowance for a period prior to the application being made, citing one of the tribunal’s own decisions. However, the Tribunal Member appropriately distinguished Mr. Smith’s situation on its facts. He held that even if the regulation “could” be applied retroactively, Mr. Smith had failed to establish circumstances that would justify backdating the special diet allowance in his case.

[10] Further, although the Tribunal Member referred to the policy directive about the starting date for a special diet allowance, he specifically indicated he realized he was not bound to apply the policy. He considered the policy critically and determined that it was “reasonable and consistent with the legislation”. However, his decision did not turn on that interpretation. Rather, he carefully considered whether, on the facts of Mr. Smith’s case, it was appropriate to give him a special diet allowance dating back seven years prior to his application, and found that it was not.

[11] Although not necessarily germane to my decision, I am of the opinion that the language of the Regulation is, in any event, prospective in nature. The purpose of the allowance sought by Mr. Smith is to compensate a person with a disability for extra expenses incurred for special dietary requirements. The wording of the Regulation demonstrates that it is compensatory in nature, as it does not contemplate a flat rate for everyone eligible, but rather provides compensation for the actual additional cost of the special diet, up to a maximum of $250.00. It is not reasonable to interpret the Regulation as having a mandatory retroactive effect, such that any person upon filing the appropriate doctor’s verification would be entitled to the allowance, regardless of whether he actually purchased or consumed any of the items on the special diet. It may be reasonable to interpret the Regulation as having retroactive effect in some circumstances, but it is not reasonable to interpret it as mandatory without regard to the surrounding facts.

[12] Accordingly, I find that the Tribunal Member did not err in law in determining, as he did, that it was not appropriate on the facts of the case before him to grant the special diet allowance retroactively.

Natural Justice

[13] In deciding it was not reasonable to award a retroactive special diet allowance to Mr. Smith, the Tribunal Member referred to the evidence before him, including:

(a) his conclusion on the evidence that Mr. Smith was given information about the special diet allowance years before he made an application;

(b) the fact that Mr. Smith showed he was able to manage his own affairs and had no difficulty accessing other special benefits provided under the Act;

(c) the fact that when Mr. Smith first applied for the special diet allowance in November 2003, neither he nor his doctor mentioned anything about a “past requirement” for the special diet;

(d) the failure of Mr. Smith to provide any evidence to substantiate his claim, such as the kinds of special diets he required, the cost breakdown of such a diet and any evidence or receipts of purchases of special diet foods.

[14] The appellant argues that in basing his decision on the failure of Mr. Smith to provide corroborative evidence, the Tribunal Member breached principles of fairness and natural justice. In particular, the appellant submits that the Tribunal Member erred because Mr. Smith had no notice that evidence would be required on this point since neither the Director’s decision nor the internal review of that decision mentioned it.

[15] The onus was on the appellant to prove his case before the Tribunal. He had a full hearing, at which he was represented by counsel. Since the purpose of the special diet allowance is to compensate for the cost of a special diet, it was, logically, incumbent on Mr. Smith to present some evidence that he had been on the special diet by order of his doctor since 1998. He failed to do so. His material filed on the application refers only to his being “in need of” the special diet and that he was “qualified” to receive the benefit. There is no mention of his actually following the “special diet” or purchasing any of the items recommended by his doctor. In these circumstances, there was no duty on the Tribunal to give notice to Mr. Smith that relevant evidence, or the lack of relevant evidence, would be taken into account in deciding his case. The failure to do so was not a breach of natural justice or the rules of procedural fairness.

[16] Mr. Smith did not request an adjournment of the hearing before the Tribunal in order to obtain the evidence he now maintains was unfairly expected of him. Although he sought reconsideration of the Tribunal Member’s decision, he did not as part of that process file, or seek leave to file, any new evidence on this point. Further, there is nothing before this Court to suggest that if Mr. Smith had been specifically advised of the intention of the Tribunal to take this into account, he would have been able to present evidence to support his position. In these circumstances it is reasonable to conclude that the evidence does not exist. Therefore, even if Mr. Smith was taken by surprise that the Tribunal would base its decision in part on the absence of evidence on this crucial point, the result would have been the same. He has not been prejudiced in any way by the lack of notice.

Conclusion

[17] There was no error of law and no breach of procedural fairness or natural justice by the Tribunal Member. There is no basis for interfering with the decision. The appeal is, therefore dismissed. Because the Respondent is not seeking costs, there will be no order as to costs.

MOLLOY J.

LANE J.

GANS J.

Date Released: January 21, 2008