Court File and Parties

CITATION: Treuer v. Director, Ontario Disability Support Program, 2019 ONSC 4653

DIVISIONAL COURT FILE NO.: 562/16

DATE: 20190808

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: KATHLEEN TREUER, Applicant/Responding Party on the Motion

AND:

DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM, Respondent/Moving Party on the Motion

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: Mimi Singh, for the Moving Party/Respondent Lesli Bisgould and Dawood Nasir, for the Responding Party/Applicant Cindy Boyd, for the Proposed Intervenor, the Administrator, Ontario Works for the Durham Region

HEARD at Toronto: June 11, 2019

ENDORSEMENT

[1] The applicant on this motion, the Director, Ontario Disability Support Program (the “Director”), seeks an order quashing an application for judicial review dated November 25, 2016 of the respondent, Kathleen Treuer (the “Respondent”), (the “Judicial Review Application”). In the Judicial Review Application, the Respondent seeks a review of two separate decisions of the Director. I will address the Director’s motion to quash the Judicial Review Application in respect of each of these decisions separately after addressing the applicable legal standard.

Applicable Legal Standard

[2] The test on a motion to quash an application is that it is “plain and obvious” that the application cannot succeed. Unless it is beyond doubt that the application will fail, it must be permitted to proceed to a hearing before a full panel of the Divisional Court. Further, an application will not be dismissed at an early stage merely because the legal issues raised are novel: see, for example, Adams v. Canada (Attorney General), 2011 ONSC 325, [2011] O.J. No. 207 (St. Ct. (Div. Ct.)) at para. 19.

The Respondent’s Request for Relief Based on the Alleged Legal Significance of the Decision of the Social Benefits Tribunal Regarding Her Right to Receive ODSP Benefits

[3] The principal relief sought in the Judicial Review Application is an order of mandamus requiring the Director to comply with an order of the Social Benefits Tribunal (the “SBT”) dated July 29, 2013 (the “SBT Order”). The SBT Order required that “if otherwise eligible, income support shall be paid to the [Respondent] in accordance with section 17 of O. Reg. 222/98 made pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (the “Act”)].” Alternatively, the Respondent seeks a declaration that she is entitled to compliance with the SBT Order. The Respondent says that the Director had already determined that she was eligible for income support under the Act at the time of the SBT Order and therefore that she was entitled to ODSP Benefits immediately upon the issuance of the SBT Order.

Factual Background

[4] The Respondent applied for OSDP Benefits pursuant to an application that the Director accepted on February 2, 2012. Pursuant to a decision dated June 12, 2012, the Director held that the Respondent was not a person with a disability for the purposes of s. 4 of the Act. This decision was rescinded by the SBT in a decision dated July 29, 2013, resulting in the SBT Order.

[5] The Respondent subsequently applied for income support under the Ontario Works program on August 20, 2013. In a decision dated August 28, 2013, the Administrator, Ontario Works for the Durham Region denied the Respondent’s application on the basis that her assets exceeded the allowable threshold, that she engaged in an inadequate disposition of assets, and that she failed to provide required information (the “OW Decision”). An internal review conducted on September 8, 2013 upheld the OW Decision.

[6] The Director says that, by letter dated September 11, 2013 (the “September Letter”), the Director notified the Respondent of the Director’s decision that she did not qualify for income support under the ODSP guidelines. It is understood that the Director’s decision was based on the OW Decision. The Respondent denies receiving the September Letter.

[7] In any event, the Respondent delivered a request for an internal review of her case on October 2, 2013. The Director’s decision on the internal review dated October 3, 2013 (the “Internal Review Decision”) was as follows:

We have completed an internal review of your case and we have upheld the original decision. This means that you are not eligible for ODSP as your assets exceed the allowable limits.

It is understood that the “original decision” refers to the September Letter. It is also understood that the Internal Review Decision is a determination of the Director that the Respondent failed to satisfy the financial eligibility requirements for ODSP Benefits.

[8] The Respondent has appealed the Internal Review Decision to the SBT. She alleges that the Director erred in concluding that her assets exceeded the allowable threshold. At the present time, the appeal has been adjourned pending the outcome of the Judicial Review Application.

[9] The Respondent also appealed the OW Decision to the SBT. Pursuant to a decision dated August 19, 2016, the SBT denied the appeal and upheld the OW Decision. The Respondent has appealed this decision of the SBT to the Divisional Court, which appeal is also adjourned pending the outcome of the Judicial Review Application.

Positions of the Parties

The Director

[10] The Director says that he has complied with the SBT Order notwithstanding that the Respondent has not received ODSP Benefits. The Director’s position is that the Respondent was not eligible for income support under the Act at the time of the SBT Order. The Director’s position is set out in the September Letter and the Internal Review Decision. The Director makes two arguments in support of the application to quash based on alternative views of the substance of this aspect of the Judicial Review Application.

[11] First, the Director says that, if the Respondent is challenging the Internal Review Decision finding that she was financially ineligible, the Judicial Review Application is effectively an appeal of the Internal Review Decision. The Director argues that it is plain and obvious that the Judicial Review Application cannot succeed in such circumstances as there is an adequate alternative remedy that has not been exhausted. The Respondent has a statutory right of appeal of the Internal Review Decision to the SBT pursuant to s. 23(1) of the Act which she has exercised. She also has a further right of appeal from the decision of the SBT to the Divisional Court on a question of law pursuant to s. 31(1) of the Act. It is clear however from the Respondent’s submissions that she has not framed the Judicial Review Application as an appeal of the finding in the Internal Review Decision that she was financially ineligible.

[12] Second, the Director says that, if the Judicial Review Application is alleging that the Director failed to comply with the SBT Order, it is without merit. The Director accepted that the Respondent was a person with a disability and went on to determine her financial eligibility as contemplated by the SBT Order. The Director says that the SBT Order only required payment of income support to the Respondent if she was otherwise eligible, which she was not.

[13] It is clear that the SBT Order was limited to the issue of whether the Respondent was a person with a disability. It did not expressly or impliedly address whether the Respondent was financially eligible for ODSP Benefits, much less whether the Respondent was entitled to ODSP Benefits without further satisfaction of the condition of financial eligibility in the SBT Order. The Director submits that the only decision taken regarding the Respondent’s financial eligibility was the decision set out in the September Letter which was addressed in the Internal Review Decision. The Director also says that these decisions are not merely prospective in effect but apply retroactively to the Respondent’s entitlement from and after the date of acceptance of her application. Accordingly, the Director says that the outcome of the Respondent’s appeal will determine her entitlement to ODSP Benefits for the entire period from February 2, 2012 forward, which renders the Judicial Review Application unnecessary.

The Respondent

[14] The Respondent says that the Director was statutorily obligated to provide ODSP Benefits to her at the time of the issuance of the SBT Order and, accordingly, to pay such Benefits until such time as the Director validly determined that the Respondent was not financially eligible. The Respondent submits that she is therefore entitled to an order of mandamus directed to the Director requiring him to comply with the SBT Order and to provide ODSP Benefits retroactive to February 2, 2102.

[15] The Respondent’s position turns on her assertion that the Director had already determined that she was eligible for income support when the Director considered and rejected her status as a person with a disability. Accordingly, in her view, she was “otherwise eligible” for financial support when the SBT Order was issued. On this basis, the SBT Order ought to have resulted in an immediate commencement of ODSP Benefits based on the language of ss. 26(3) and (4) of the Act which provide, respectively, that the Director shall give effect to the SBT’s directions in any appeal decision and that a decision of the SBT takes effect when it is made.

[16] To support her position that the Director had made a determination of her eligibility for income support as contemplated by ss. 38(b) and (c) of the Act prior to the issuance of the SBT Order, the Respondent relies on the Ontario Disability Support Directives – Income Support (the “Directives”). In particular, she relies on Directive 1.1 which provides that “[g]enerally, financial eligibility must be established before a Disability Determination Package (DDP) can be provided and a referral made to the Disability Adjudication Unit (DAU)”. On this basis, the Respondent submits that the Director must have made a determination that she was financially eligible prior to referral of her case to the Disability Adjudication Unit (the “DAU”). She seeks the documentation in her ODSP file to demonstrate that such a determination was actually made.

[17] The Respondent’s position turns on two propositions which will be addressed below.

[18] First, the Respondent says that the Director makes a determination of financial eligibility in respect of any application that is referred to the DAU that obligates the Director to provide ODSP Benefits if the applicant is found to be medically eligible until the Director makes a subsequent decision that the person is no longer financially eligible for ODSP Benefits and provides a notice of such decision to the individual under s. 19 of the Act.

[19] Second, any decision of the Director that an applicant is no longer financially eligible that is made subsequent to referral of an applicant’s case to the DAU is prospective in effect only. On this basis, the Respondent argues that the Director’s determination in the September Letter, to the extent applicable, or the Internal Review Decision, that she was not eligible for financial support is forward looking only and did not remove the Director’s statutory obligation to pay her ODSP Benefits from February 2, 2012 to the date of such Letter or the Internal Review Decision. The Respondent says that, therefore, regardless of the outcome of her appeal of the Internal Review Decision, she is entitled to ODSP Benefits for the period February 2, 2012 to October 3, 2013.

Analysis and Conclusions

[20] I will first address the Director’s motion to quash this aspect of the Judicial Review Application and then consider the Director’s alternative request for relief respecting an affidavit filed by the Respondent in support of her position.

The Director’s Motion to Quash the Judicial Review Application

[21] For the following reasons, I conclude that it is plain and obvious that this aspect of the Judicial Review Application cannot succeed.

[22] To succeed on the Judicial Review Application, the Respondent must identify a determination of the Director that she was eligible for financial support that was made before the SBT Order to which the Director was statutorily obligated to give effect upon receipt of that Order. In the absence of any notice or communication of any such determination from the Director, the Respondent asserts that there was an internal decision of the Director that she was eligible for income support that bound the Director. Based on the language of Directive 1.1 cited above, the Respondent says that there must have been a decision taken by the Director that she was financially eligible prior to consideration of her medical eligibility and that such decision therefore bound the Director to provide ODSP Benefits upon receipt of the SBT Order.

[23] For this purpose, the relevant provisions of the Act are s. 38 and ss. 19 and 20. Section 38(1)(b) of the Act requires the Director to determine the eligibility of each applicant for income support and s. 38(1)(c) requires a further determination of the amount of the income support. In addition, sections 19 and 20 provide as follows:

19 The Director shall give notice to the applicant or recipient of a decision that may be appealed and the notice shall advise the applicant or recipient that he or she may request an internal review of it.

20 (1) A decision of the Director shall be effective from the date fixed by the Director, whether it is before, on or after the date of the decision.

[24] For the following reasons, I am of the opinion that, as a matter of law, the Director was not statutorily obligated to provide ODSP Benefits to the Respondent upon receipt of the SBT Order regardless of any internal assessment of the Respondent’s financial eligibility that may have been made by the Director’s representatives prior to the referral of her case to the DAU.

[25] First, the Respondent’s argument treats the decision of the Director independently of the decision letter provided by the Director to an applicant. The Respondent’s approach has the result that the Director can become statutorily obligated to give effect to a decision to provide income support notwithstanding that the Director never sets out a decision in a letter that provides notice to an applicant under s. 19 of the Act. I do not think that the Act operates in this manner.

[26] The Act treats a decision of the Director as a decision set out in a notice issued as contemplated under s. 19 of the Act. It is only such a decision that can give rise to a right of an applicant to ODSP Benefits or to rights of an internal review and of appeal. In the absence of any notice from the Director of a decision upon which an applicant may act, an applicant has the right to compel the Director to issue a notice of a decision under s. 19 pursuant to a judicial review of the Director’s inaction. However, an applicant does not have the right to go behind the Director’s inaction to construct a decision from the record of the review and assessment of an applicant’s circumstances by the Director’s representatives.

[27] Second, there is no statutory basis for the Respondent’s position that the Director was legally obligated to give effect to any assessment of her financial eligibility that was made in the course of processing her application but never communicated to the Respondent.

[28] The Act does not stipulate the manner in which an application must be processed nor does the Act specify when a determination of the financial eligibility of an applicant must be made. There is also nothing in the Act that gives the Directives the force of law and therefore requires that a determination of financial eligibility be made before a case is referred to the DAU. The Directives merely set out a practice to be followed internally. More generally, the Act does not give legal significance to any steps in the internal processing of an application prior to delivery of notice of a decision of the Director regarding eligibility for ODSP Benefits of an applicant.

[29] Third, as a consequence of the foregoing, it is inherent in the statutory scheme regarding the assessment of an applicant’s eligibility for ODSP Benefits that any internal decision regarding financial eligibility is provisional and subject to change until such time as a notice of a decision has been communicated to an applicant in accordance with s. 19 of the Act. In this case, therefore, while it is not evident that the Director actually made an internal determination of the Respondent’s eligibility prior to receipt of the SBT Order, there is nothing in the Act that prevented the Director from reversing any internal determination based on new information, such as the OW Decision, at any time prior to the Director’s delivery of a notice of a decision under s. 19 of the Act.

[30] The provisional nature of any assessment made prior to referral of an applicant’s case to the DAU is reflected in Directive 1.1 in the reconfirmation requirement regarding financial eligibility after any determination by the DAU that an applicant is medically eligible. Directive 1.1, as it existed in 2013, provided that “[t]he ODSP office reconfirms financial eligibility … within 21 days [of receipt of notice from the DAU that an applicant is medically eligible].” The current Directive 1.1 also provides, among other things, that “financial reconfirmation must be completed on cases where 12 months have passed between the initial determination of financial eligibility and the DAU decision or an SBT decision”, as in the present case. Directive 1.1 contemplates that this reconfirmation process will be completed prior to notification under s.19 of the Act of an applicant’s entitlement to ODSP Benefits. In other words, Directive 1.1, upon which the Respondent relies heavily, contemplates that any assessment made prior to referral of a case to the DAU may be reversed after receipt of an order of the SBT and confirms the provisional nature of any earlier assessment.

[31] Accordingly, in this case, the Respondent’s only complaint could be that the Director failed to complete the reconfirmation process within 21 days of the date of receipt of the SBT Order. There is, however, no legal basis for concluding that the Director is bound by any assessment or determination made prior to referral of her case to the DAU to the extent that the Director failed to complete the reconfirmation and notification process within that time period. As noted above, in such circumstances, the Respondent’s recourse would appear to be to seek an order of mandamus requiring the Director to complete such process. However, that is not the relief sought in the Judicial Review Application and, in any event, any such proceeding would have been rendered moot by the September Letter and/or the Internal Review Decision.

[32] The applicant relies on the decision of the Divisional Court in Marano v. Director of ODSP, 2017 ONSC 1604. In my view, Marano is distinguishable from the present case on a factual basis that illustrates the problems with the Respondent’s position on this aspect of the Judicial Review Application.

[33] In Marano, the Director issued a notice of a decision dated September 19, 2012 which held Mr. Marano to be financially ineligible. That notice was rescinded by the SBT. The Director then issued a notice of a decision that Mr. Marano was medically ineligible. In a subsequent letter dated June 12, 2015, shortly before the scheduled hearing of the appeal of the Director’s decision, the Director issued a further letter stating his decision that Mr. Marano was medically eligible. The judicial review application in that case addressed the Director’s failure to provide ODSP Benefits to Mr. Marano retroactive to the date of his application in 2012 despite these two decisions.

[34] Mr. Marano was entitled to ODSP Benefits because the Director had notified him in separate notices under s. 19 of the Act that he was both medically eligible and financially eligible. In contrast, in this case, while the SBT found the Respondent to be medically eligible, the Director had not notified her that she was financially eligible prior to the SBT Order. While the Respondent believes that the Director must have taken a decision that she was financially eligible prior to consideration of her medical eligibility, the only decision on this issue of which the Respondent was ever notified was the Director’s determination subsequent to the SBT Order that she was not financially eligible. Moreover, Mr. Marano’s entitlement to ODSP Benefits on a retroactive basis was based on the fact that he qualified as of the date of acceptance of his application once the Director confirmed his eligibility. There is nothing in Marano that supports the Respondent’s position that the Director was obligated to provide ODSP Benefits on a retroactive basis after the SBT Order until such time as the Director decided that she was no longer financially eligible.

The Respondent’s Allegation that the Internal Review Decision is Prospective Only

[35] While the foregoing is sufficient to dismiss this aspect of the Judicial Review Application, the Respondent’s submission that the Internal Review Decision has prospective effect only also raises certain issues pertaining to the relationship between the appeal of the Internal Review Decision and this aspect of the Judicial Review Application. These issues compel the conclusion that the Respondent’s issues must be addressed in the appeal of the Internal Review Decision.

[36] As mentioned, the Respondent submits that the Internal Review Decision has prospective effect only. I do not agree for the following reasons.

[37] As the Director notes, as a matter of law, the Internal Review Decision addressed the Respondent’s entitlement to ODSP Benefits based on her application as accepted on February 2, 2012. Accordingly, the Respondent would have been entitled to ODSP Benefits from February 2, 2012 if the Internal Review Decision had gone in her favour and she will be entitled to ODSP Benefits for such period if she is successful on her appeal.

[38] There is no legal basis of which I am aware that would restrict the scope of that decision to the period after October 3, 2013 as a result of the denial of her benefits. The only possible basis for this result would be the Respondent’s suggestion that the Director was bound by an earlier decision in respect of the period up to the date of the Internal Review Decision. There is, however, no basis for such a conclusion for the reasons set out above. In addition, the factual circumstances and actions of the Respondent upon which the OW Decision is based are equally applicable in respect of the entire period between the date of acceptance of the Respondent’s application for ODSP Benefits and the date of the OW Decision, being August 28, 2013. I therefore see no factual basis for finding that the Internal Review Decision does not address the financial eligibility of the Respondent for the entirety of this period.

[39] Because the Internal Review Decision is retroactive as well as prospective in scope, the appeal of the Internal Review Decision, rather than the Judicial Review Application, is therefore the appropriate forum in which to address the issues raised in this aspect of the Judicial Review Application for two reasons.

[40] The first reason is the practical observation that it is much more efficient to address all of the Respondent’s issues respecting her application in a single proceeding rather than in two proceedings with a risk of potentially conflicting decisions. In this regard, I would also note that any issue of the Respondent’s failure to raise the issues asserted in the Judicial Review Application as grounds of appeal of the Internal Review Decision can and should be dealt with in the latter proceeding.

[41] In addition, as a related matter, the Respondent’s position is only meaningful if the appeal of the Internal Review Decision could not affect her entitlement to any income support that might be ordered in the Judicial Review Application. However, the Respondent has not provided any case law or statutory authority that supports such a result. To the contrary, as the Director emphasizes, there is at all times only one application of the Respondent. Accordingly, if the Respondent’s appeal of the Internal Review Decision is unsuccessful, there would be an issue of potential recovery by the Director of any income support payments paid to her prior to the decision on the appeal. Such a situation could arise if the Judicial Review Application were decided in the Respondent’s favour prior to the hearing of the appeal of the Internal Review Decision by the SBT, as currently contemplated. It is therefore desirable, if not necessary, to have both issues addressed in the same proceeding.

Additional Issue - The Respondent’s Allegation of the Director’s Failure to Make a Valid Determination That She Was Financially Eligible

[42] The Respondent also alleges that the Director failed to make an independent determination of her financial eligibility for ODSP Benefits after the issuance of the SBT Order. She alleges that the September Letter was never issued and that she triggered the Internal Review Order in order to have her case addressed by the Director. Alternatively, she says that the Director’s decision in the September Letter did not satisfy the requirement for an independent determination under s. 38 of the Act since it relied entirely on the OW Decision.

[43] These are allegations that pertain to the validity of the Internal Review Decision. Accordingly, they are properly the subject of the Internal Review Decision, rather than the Judicial Review Application. As there is an adequate alternative remedy available to the Respondent insofar as she intends to assert these allegations, the Judicial Review Application should also be quashed to the extent that these allegations are asserted thereunder.

Disposition of the Director’s Motion to Quash the Judicial Review Application

[44] Based on the foregoing, the Director’s motion to quash the Judicial Review Application, insofar as it asserts that the Director failed to comply with the SBT Order by failing to provide ODSP Benefits upon receipt of the SBT Order, is granted.

The Director’s Motion to Strike the Williams Affidavit

[45] The application record for the Judicial Review Application includes an affidavit dated March 5, 2019 of Teresa Williams, a paralegal who provided legal services to the Respondent between December 2015 and August 2018 as an employee of the Respondent’s current legal counsel (the “Williams Affidavit”). The Williams Affidavit provides evidence that the Respondent says is necessary to understand the Judicial Review Application.

[46] The Respondent did not seek leave of the Court to supplement the record by the introduction of evidence for the purposes of the Judicial Review Application. Instead, on the present motion, if the Court does not order that the Judicial Review Application be quashed in its entirety, the Director seeks alternative relief in the form of an order striking the Williams Affidavit. The Director submits that the subject matter of the Williams Affidavit is irrelevant and does not meet the test for the admission of evidence on an application for judicial review.

[47] I accept the Director’s summary of the contents of the Williams Affidavit as addressing four topics:

(1) Information regarding the Respondent and her difficulties in finding accommodation (paragraphs 8-10);

(2) The unsuccessful efforts of her counsel to obtain the Respondent’s 2012 application for ODSP Benefits and the relevant case notes from her file (paragraphs 6 and 7);

(3) The Respondent’s efforts to seek a formal explanation as to why the Director did not comply with the SBT Order (paragraph 12); and

(4) The Respondent’s difficulties in re-applying for ODSP Benefits in 2016 (paragraphs 11-17).

[48] I agree with the Director that paragraphs 8-10 of the Williams Affidavit should be struck as failing to satisfy the test for the admission of additional evidence on a judicial review application. While these facts may explain the Respondent’s motivation in seeking the relief she does, they do not address any legal issues in the Judicial Review Application nor do they provide evidence on any essential point pertaining to the issues in the Judicial Review Application.

[49] The evidence in paragraphs 6, 7 and 12 is directed toward establishing that the Director determined that the Respondent was financially eligible for ODSP Benefits prior to the SBT Order and was bound by such determination upon receipt of the SBT Order. These paragraphs should also be struck. Given the determination above that this aspect of the Judicial Review Application should be quashed, it follows that paragraphs 6, 7 and 12 of the Williams Affidavit are moot because they have no relevance to the Judicial Review Application as it is constituted after this decision.

[50] As a related matter, the Respondent also provided responding materials on this motion consisting of an affidavit sworn June 1, 2019 by one of the Respondent’s legal counsel, Dawood Nasir (the “Nasir Affidavit”), without seeking leave of the Court to supplement the record on this motion in this manner. The Director also seeks an order striking this affidavit on the grounds that it does not satisfy the test for the admission of additional evidence in a judicial review application. The Respondent says that the Nasir Affidavit has been provided solely for the purposes of this motion and was filed to show there was a gap in the evidentiary record which the Williams Affidavit was required to fill. She also suggests that it demonstrates the relevance and reliability of the evidence provided in the Williams Affidavit.

[51] The Nasir Affidavit addresses two principal issues. First, paragraphs 6 and 7 of the Nasir Affidavit set out the Respondent’s position that she has no recollection of receiving the September Letter and her belief that she triggered the Internal Review Decision. The Nasir Affidavit states that the Respondent sought an internal review in order to obtain an explanation from the Director for her failure to receive ODSP Benefits after the SBT Order, rather than in response to that letter. At the hearing, the Director advised the Court that the Director does not take issue with the Respondent’s belief as a factual matter. In addition, subsequent to the hearing, the Respondent advised that she is agreeable to removing these paragraphs from the Nasir Affidavit. Accordingly, these paragraphs are struck.

[52] Second, paragraphs 3-5 of the Nasir Affidavit, and related attachments, set out in detail correspondence between the Respondent’s counsel and the Director’s counsel regarding the former’s belief that there were documents that were in the possession or control of the Director that should have been provided to the Respondent and included in the Record of Proceedings in the Judicial Review Application.

[53] Given the fact that paragraphs 6, 7 and 12 in the Williams Affidavit have been struck as moot and therefore of no relevance, paragraphs 3-5 of the Nasir Affidavit, insofar as they address these paragraphs of the Williams Affidavit, are also moot and should be struck. In short, there is no gap in the evidentiary record on these matters that either the Williams Affidavit or the Nasir Affidavit must address.

The Respondent’s Request for Relief in Regard to the Actions of the Director’s Representatives Respecting Her Attempts to Re-Apply for Ontario Disability Support Program Benefits

[54] In paragraph 1(c) and (d) of the Notice of Application for Judicial Review, the Respondent seeks by way of additional relief an order of mandamus that requires the Director to allow the Respondent to apply anew for ODSP Benefits pursuant to s. 14 of O.Reg. 222/98 under the Act. Alternatively, in paragraph 1(d), the Respondent seeks a declaration that she is entitled to apply for ODSP Benefits.

Factual Background

[55] The Notice of Application for Judicial Review was issued on November 26, 2016. In paragraph 2(f) of the Notice of Application, the Respondent asserts that she made repeated attempts to re-apply for ODSP Benefits but that the Director’s representatives refused to allow her to do so. The support for these allegations is set out in greater detail in paragraphs 11 to 17 of the Williams Affidavit which is dealt with further below.

[56] It appears that the Respondent made efforts commencing in or about March 2016 to re-apply for ODSP Benefits. By letter dated December 7, 2016, the Director advised the Respondent that her application had been approved and that she qualified for ODSP Benefits as of October 1, 2016.

[57] While this renders the Judicial Review Application moot on a going forward basis, the Respondent believes that she should have been approved for benefits as of the earliest date on which she commenced the re-application process and was denied the right to re-apply by representatives of the Director. Accordingly, she seeks a judicial review of the actions of the Director’s representatives in the period March 2016 to October 1, 2016.

Analysis and Conclusions

[58] There are two issues to be addressed in respect of this aspect of the Judicial Review Application.

The Director’s Motion to Quash the Judicial Review Application

[59] The Director seeks an order quashing paragraphs 1(c) and (d) and paragraph 2(f) of the Notice of Application for Judicial Review on the basis that the claim therein is moot. I see no basis for doing so for the following reasons.

[60] The Director does not dispute the Respondent’s position that it is necessary to obtain a form from the Director’s office in order to apply or re-apply for ODSP Benefits. The Respondent says that she sought to re-apply commencing in or about March 2016 but was prevented from doing so by representatives of the Director.

[61] Under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 a “statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing, among other things, “the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,”.

[62] Accordingly, the decision of the Director’s representatives to deny the Respondent the right to re-apply for ODSP Benefits for the period between March 2016 and October 1, 2016 constitutes “the exercise of a statutory power of decision” for the purposes of the Judicial Review Procedure Act and is therefore amenable to review by way of an application for judicial review pursuant to that statute. The Director has provided no reason why this aspect of the Judicial Review Application, as opposed to her original claim of an absolute denial of such right, cannot be the subject of judicial review.

[63] The subject matter of the Judicial Review Application in respect of this matter is separate and distinct from the decision of the Director set out in the Director’s letter of December 7, 2016. The Director’s letter addresses the Director’s decision regarding the Respondent’s eligibility for ODSP Benefits effective October 1, 2016. It does not address the impugned actions of the Director’s representatives prior to that date. Accordingly, while the Respondent is entitled to appeal to the SBT the commencement date of benefits set out in the Director’s letter, the issue of the prior actions of the Director’s representatives was not addressed by the Director in the letter of December 7, 2016 and therefore could not be addressed on any such appeal.

[64] Based on the foregoing, the Director’s motion to quash this aspect of the Judicial Review Application is denied insofar as the Respondent seeks a review of the actions of the Director’s representatives to deny her the right to re-apply for ODSP Benefits during the period March 2016 to October 2016. It is not “plain and obvious” that this aspect of the Judicial Review Application cannot succeed.

The Director’s Motion to Quash the Williams Affidavit

[65] Given the foregoing determination, the Director seeks, by way of alternative relief, an order quashing the remaining paragraphs of the Williams Affidavit, being paragraphs 11-17. As mentioned, these paragraphs set out certain factual allegations concerning the Respondent’s difficulties in re-applying for ODSP Benefits in 2016. As discussed above, the Respondent did not seek leave of the Court for the admission of the additional evidence in the Williams Affidavit. Instead, the Director has brought a motion to strike the affidavit. I take it to be implicit in the Director’s motion that the Director is treating this motion as the substantive equivalent of a motion on the part of the Respondent for leave to admit this additional evidence in order to avoid unnecessary further litigation on this issue.

[66] The test for the admission of evidence to supplement the record in a judicial review proceeding was summarized by the Divisional Court in Warren v. Ontario (Labour Relations Board), [2012] O.J. No. 1676 (Div. Ct.) at paras. 9 and 10 as follows:

Affidavit evidence is only admissible to supplement the record of proceedings in applications for judicial review in limited circumstances:

*where there is a complete absence of evidence on an essential point (Keeprite Workers' Independent Union v. Keeprite Products Limited (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.) at p. 8 (Quicklaw version) and Windsor Board of Education v. Windsor Women Teachers' Assns., [1991] O.J. No. 2148 (C.A.) at p.8 (Quicklaw version)), or

*where the evidence discloses a breach of natural justice that cannot be proven by reference to the record (142445 Ontario Limited (Utilities Kingston) v. International Union of Electrical Workers, Local 386, 2009 24643 (ON SCDC), [2009] O.J. No. 2011 (Div. Ct.) at para. 18).

Some cases have suggested a broader basis for the admission of affidavit evidence in applications for judicial review, permitting such evidence where the interests of justice require it (Denby v. Ontario (Agriculture, Food and Rural Affairs Tribunal), [2005] O.J. No. 4952 (Div. Ct.); Brookfield Lepage Johnson Controls Facilities Management Services Ltd v. Ontario Labour Relations Board, [2007] O.J. No. 490 (Div. Ct.)). However, the courts have generally been very reluctant to permit affidavit evidence to supplement the record of proceedings on judicial review, even where there is no transcript (Taucar v. University of Western Ontario, 2011 ONSC 1535 (Div. Ct.) at para. 16).

[67] In this case, there is no record of a decision of the Director which is the subject of the Judicial Review Application. The claim is based instead on an alleged denial of the right to make an application. The Respondent has the onus of demonstrating that she made efforts to re-apply for ODSP Benefits and was prevented from doing so. In the absence of any file of the Director in the record or otherwise made available to the Respondent, the only evidence is the Respondent’s evidence of her efforts to re-apply for ODCP Benefits and certain correspondence of the Director’s representatives in her possession.

[68] Accordingly, I conclude that it is necessary to admit the evidence in paragraphs 11 to 17 of the Williams Affidavit for the purpose of supplementing a record which would otherwise be devoid of any evidence, other than the oral assertions of the Respondent and possibly of the Director’s representatives. More broadly, such evidence is necessary to permit the Respondent to assert her allegation of an absence of statutory authority on the part of the Director’s representatives that cannot be proven by reference to a record and, as such, is required in the interests of justice.

[69] On the other hand, the relevant paragraphs of the Nasir Affidavit, which the Respondent says address the need for the evidence in the Williams Affidavit pertaining to this issue, do not provide any evidence of relevance for this motion, While paragraph 4 of the Nasir Affidavit states that the Applicant failed and ultimately refused to provide any documentation in the ODSP file with respect of the Respondent’s efforts to re-apply for ODSP Benefits, the only correspondence on this issue states merely that there should be records of her attempts to re-apply that should be put on the record. In any event, the Nasir Affidavit does no more than restate the acknowledged fact that the Director has not provided any relevant documentation on this issue from its files. As such, I find it is not relevant to the issues on the Director’s motion and should be struck.

Disposition of the Director’s Motion to Quash

[70] For clarity, based upon the foregoing determinations, the Judicial Review Application is quashed except insofar as the Respondent seeks a judicial review of the actions of the Director’s representatives to deny her the right to re-apply for ODSP Benefits during the period March 2016 to October 2016. In addition, for the reasons set out above, the Director’s motions to quash the Williams Affidavit and the Nasir Affidavit are granted, except in respect of paragraphs 11 to 17 of the Williams Affidavit. As neither of the parties seeks costs of this motion, no costs are awarded.

Further Motion of the Director

[71] In these circumstances, the Director seeks a further order that the same Divisional Court panel hear the Judicial Review Application and the appeal of the OW Decision together. This relief is denied. Given the determinations in this Endorsement, the remaining issue in the Judicial Review Application is entirely separate and distinct, both factually and legally, from the issue in the appeal of the OW Decision. I therefore see no basis for ordering that these two matters should be heard together.

Disposition of the Intervenor’s Motion

[72] The proposed intervenor, the Administrator, Social Services Department, Durham, has brought a motion seeking leave to be added as a party to the Judicial Review Application pursuant to Rules 13.01 and 13.03 of the Rules of Civil Procedure. This motion was adjourned after completion of argument on the Respondent’s motion pending a decision of the Court.

[73] If the proposed intervenor intends to proceed with this further motion after reviewing this Endorsement, in the absence of a consent thereto from the other parties in this proceeding, the proposed intervenor should contact the Divisional Court office to schedule the hearing of such motion.

Wilton-Siegel J.

Date: August 8, 2019