CITATION: Director, ODSP v. Walsh, 2011 ONSC 1526
DIVISIONAL COURT FILE NO.: DC-09-00040
DATE: 2011-03-09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Gray, Ramsay JJ.
BETWEEN:
Director, Ontario Disability Support Program
Appellant
– and –
Diane Walsh
Respondent
Ms. M. Singh for the appellant
Ms. L. Bisgould and Ms. M. Macfie for the respondent
HEARD: 2011-03-09 at Newmarket
BY THE COURT:
[1] The Director of the Ontario Disability Support Program appeals under s.31 of the Ontario Disability Support Program Act (“the Act”) from a decision of the Social Benefits Tribunal. The appeal lies to this court on a question of law alone. The Director says that the Tribunal acted without jurisdiction. The standard of review on such a question is correctness.
[2] The Tribunal granted an appeal under s.21 of the Act from the Director’s decision to suspend, and later to cancel, the respondent’s benefits. The appellant Director says that the Tribunal had no jurisdiction to hear the appeal because the respondent did not file the appeal within the prescribed period.
[3] The Act provides,
- (1) An applicant or recipient may appeal a decision of the Director within the prescribed period after an internal review by filing a notice of appeal that shall include reasons for requesting the appeal.
(2) The Tribunal may extend the time for appealing a decision if it is satisfied that there are apparent grounds for an appeal and that there are reasonable grounds for applying for the extension.
(3) An appeal to the Tribunal shall be commenced and conducted in accordance with the regulations.
(1) The Lieutenant Governor in Council may make regulations,
prescribing the time within which an appeal to the Tribunal may be filed;
respecting the commencement, conduct and procedures for appeals to the Tribunal and the time within which decisions are to be rendered;
[4] O.Reg. 222/98 (“the Regulation”) provides,
- (1) For the purpose of subsection 23 (1) of the Act, the prescribed time for appealing a decision of the Director is 30 days from the day the Director’s decision is final under clause 20 (3) (b) of the Act.
(2) No appeal to the Tribunal shall be commenced more than one year after the date of the Director’s decision.
[5] Even if the Board made no error in its interpretation of the statutory and regulatory provisions relating to the period in which an internal review may be requested, we are of the view that subs.61 (2) of the Regulation provides an overriding prescription that ends one year after the Director’s decision is made, whenever the decision is considered final and whenever it becomes effective. This one-year limit applies whether or not the requirements for requesting an internal review are complied with.
[6] We are further of the view that subs.61 (2) of the Regulation is within the scope of the authority delegated to the Lieutenant-Governor-in-council by subs. 23(2) and section 55, clauses 25 and 26 of the Act.
[7] The Regulation is within the plain words of the delegation effected by the Act, and it fits within the purpose and scheme of the legislation.
[8] The purpose of income support legislation is to provide for the basic needs and shelter of a person under disability on a monthly basis: Asgedom v. The Queen in right of Ontario, 2010 ONSC 939 (Div. Ct). Section 1 of the Act in question states among its purposes the effective delivery of assistance to persons in need and accountability to the taxpayers.
[9] The scheme of the Act is to provide an expeditious review and appeal to a person who has been denied benefits and to provide a further opportunity to apply for benefits for needs that arise at a later time, or if new or other evidence of need becomes available. Under s.10 of the Act, a person who has been denied benefits may apply again “upon new or other evidence or if material circumstances have changed.” In fact, the respondent has done this and is currently receiving benefits.
[10] The Regulation confines the review and appeal to a time period reasonably close to the situation that existed at the time of the denial, leaving later needs to be dealt with under s.10 of the Act. This is consistent with the purpose and scheme of the legislation.
[11] The Director’s decision was made on July 21, 2005. The appeal was filed on August 7, 2007. We do not need to decide whether the Tribunal had jurisdiction under subs.23 (2) of the Act to extend the time for filing an appeal beyond the one year prescription. The Tribunal was not asked to extend the time, and it did not do so. Rather it erroneously decided that the appeal had been commenced within the prescribed time. In hearing the appeal the Tribunal acted without jurisdiction. The appeal is allowed and the order of the Tribunal is set aside.
[12] Neither party asked for costs. None are ordered.
J.R. Jennings J.
D.K. Gray J.
J.A. Ramsay J.
Released: 2011-03-11
CITATION: Director ODSP v. Walsh, 2011 ONSC 1526
DIVISIONAL COURT FILE NO.: DC-09-00040
DATE: 2011-03-09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Gray, Ramsay JJ.
BETWEEN:
Director, Ontario Disability Support Program
Appellant
– and –
Diane Walsh
Respondent
REASONS FOR JUDGMENT
Released: 2011-03-11