ONSC 303

DIVISIONAL COURT FILE NO.: 613/16

DATE: 20200224

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

AITKEN, PATTILLO and PENNY JJ.

BETWEEN:

KATHLEEN TREUER

Appellant

– and –

ADMINISTRATOR, SOCIAL SERVICES DEPARTMENT DURHAM REGION and DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM

Respondents

Lesli Bisgould and Dawood Nasir, for the Appellant

Cindy Boyd, for the Respondent Administrator, Social Services Department Durham Region

Mimi Singh, for the Respondent Director, Ontario Disability Support Program

HEARD at Toronto: January 13, 2020

REASONS FOR JUDGMENT

AITKEN J.:

Nature of Proceedings

[1] The Appellant, Kathleen Treuer, appeals the decision of the Social Benefits Tribunal (“the Tribunal”), dated August 19, 2016, and confirmed November 21, 2016, in which the Tribunal upheld the decision of the Administrator, dated August 28, 2013, and confirmed September 6, 2013, denying Ontario Works benefits to the Appellant under the Ontario Works Act, 1997, S.O. 1997, c. 25, Sched. A (“the Act”) and O. Reg. 134/98.

[2] The grounds of appeal are:

• The Tribunal erred in law in applying the wrong test to determine whether the Appellant had assets in excess of the allowable limits pursuant to the Act;

• The Tribunal erred in law in applying the wrong test to determine whether the Appellant had inadequately disposed of assets;

• The Tribunal erred in law in applying the wrong test to determine whether the Appellant had failed to disclose relevant information to determine her eligibility for a benefit; and

• The Tribunal erred in law in ignoring relevant evidence that was before it in respect of the Appellant’s disabilities and assets.

[3] In her Notice of Appeal, the Appellant also advanced the argument that the Tribunal erred in law and exceeded its jurisdiction by adding the Director of the Ontario Disability Support Program (“ODSP”) as a party to this appeal. This argument was not pursued at the hearing and therefore will not be addressed in these Reasons.

History of Proceedings

[4] The Appellant is a former personal support worker who has numerous health issues, including cognitive impairment caused by epileptic seizures. She applied for ODSP benefits in 2012, but her application was denied on June 12, 2012 on the basis that she was not a person with a disability pursuant to the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B. (“the ODSPA”). This finding was reversed by the Tribunal on July 29, 2013. Despite being identified as a person with a disability under the ODSPA, the Appellant did not receive ODSP benefits because the ODSP Director determined that she was not eligible for them on financial grounds.

[5] On December 7, 2016, the ODSP determined that the Appellant was financially eligible for ODSP benefits effective October 1, 2016. Thus, from 2013 to October 1, 2016, the Appellant was not in receipt of ODSP benefits. She is currently appealing the Tribunal’s decisions that rendered her ineligible for these benefits during that period. That appeal has yet to be heard.

[6] On August 20, 2013, while the Appellant’s ODSP application was being considered, the Appellant applied for benefits under Ontario Works (“OW”). On August 28, 2013, the OW Administrator advised the Appellant by telephone that her application was denied because her assets were in excess of the allowable limit for eligibility for OW benefits. On August 30, 2013, the Appellant asked for an Internal Review. On September 6, 2013, the Administrator advised the Appellant that the original decision was confirmed, and that the Appellant had been assessed ineligible for OW benefits due to having assets in excess of the allowable limit. Those assets consisted of three vehicles in the Appellant’s name (a white 2010 Toyota, a grey 2010 Toyota, and a 1999 Oldsmobile) according to a Ministry of Transportation (“MTO”) report that showed all vehicles to be active and plated. The Administrator reminded the Appellant that, on her application, she had indicated that she was a single person, with no dependants. According to the Administrator, under the Act and regulations, a single person owning more than one vehicle was ineligible for OW benefits.

[7] In her September 6, 2013 letter to the Appellant, the Administrator provided three additional reasons that rendered the Appellant ineligible for OW benefits. First, the Appellant had cashed in a registered retirement savings plan (“RRSP”) in the amount of $28,813.68 that netted her $20,169.58 after tax, and she had used a portion of these funds “to purchase a vehicle”. The Administrator found that this was “an inadequate disposal of assets” under s. 7(3) of the Act and OW Directives 4.11 and 5.1. Second, the Appellant failed to disclose this asset to OW. Third, the Appellant was in receipt of income from two individuals, and this income was not disclosed to OW. This last ground was not referred to on this appeal and requires no further comment.

[8] The Appellant appealed this decision to the Tribunal. For reasons not germane to the appeal before this court, the hearing of the appeal before the Tribunal was repeatedly adjourned at the request of the Appellant. The hearing eventually took place on April 12, 2016. It was considered a hearing de novo in the sense that evidence tendered before different Tribunal members at two earlier hearings that had to be discontinued did not become evidence before the Tribunal on April 12, 2016. The Tribunal’s Decision (“the Decision”) was released on August 19, 2016. It was reconsidered and confirmed on November 21, 2016.

Written and Oral Submissions to the Tribunal

[9] The Administrator’s initial written submissions to the Tribunal dated October 15, 2013 focused on the requirement under the Act and regulations for the Appellant to provide full, accurate, and up-to-date information regarding her income and assets, and the Appellant’s failure to meet this obligation. Of particular interest to the Administrator was the Appellant’s withdrawal of $28,813.68 from an RRSP and how the Appellant used the funds she received. As well, the Administrator listed several discrete items of information regarding the Appellant’s financial status that the Appellant as of October 15, 2013 had failed to provide.

[10] In supplementary written submissions dated February 9, 2015, the Administrator produced evidence that, in October 2012, within a year of applying for OW benefits, the Appellant had taken money from a locked-in RRSP as a “Withdrawal Based on Low Income” under the Pensions Benefit Act, R.S.O. 1990, c. P. 8. The Administrator pointed to OW Directive 4.7 which stated:

Where an applicant or recipient has withdrawn locked-in pension funds, under any heading, which do not result in the person exceeding the allowable asset limit, the amount is exempt as income.

Where an applicant or recipient has withdrawn locked-in pension funds under the “Withdrawal Based on Low Income” category, which exceed the allowable asset limit, the withdrawn amount is exempt as income if it is used to purchase an exempt asset or a specific item that the Administrator is satisfied is necessary for the health and well-being of a member of the benefit unit, or used for education, training or participation expenses. Otherwise, the amount which exceeds the allowable asset limit is included as income in the month received and as an asset thereafter.

[11] In regard to the net funds the Appellant had received from the locked-in RRSP, namely $20,169.58, the Administrator took the position that: (1) that portion of the funds that was used to pay off a loan on the second Toyota driven by the Appellant’s daughter lost exempt status because it went from an asset that was exempt under the Act (a locked-in RRSP) to an asset that was not exempt (a second vehicle not covered by O. Reg. 134/98, s. 39(1)5.1); and (2) the balance of the withdrawn funds had to be considered assets without exempt status because it was cash in the Appellant’s hands. This rendered the disposal of the RRSP an “inadequate disposal” within the meaning of the Act.

[12] The Appellant made written submissions to the Tribunal on February 16, 2016, with the assistance of a community legal worker.

[13] Regarding the claim that the Appellant owned assets in excess of the allowable limit, the Appellant submitted that: (1) her RRSP was locked-in and therefore exempt; (2) she did not own three vehicles in August 2013, she only owned one, and that was an exempt asset; (3) the Toyota that her daughter drove was owned by the Appellant’s father; and (4) she did not own a 1999 Oldsmobile – at some unspecified date, she had given it to a scrap yard. The Appellant attached documentation in support of her submissions but, as will be discussed later, that documentation was of minimal assistance.

[14] Regarding the claim that the Appellant, during the year prior to her application for OW benefits, had made an inadequate disposal of assets by cashing in an RRSP and using a portion of the funds to pay the outstanding balance of a car loan on the car driven by her daughter, the Appellant simply submitted that this use of the funds did not amount to an inadequate disposal of assets. No reason or authority was provided for this conclusion.

[15] Regarding the claim that the Appellant had failed to provide information to OW, the Appellant submitted that the Appellant had provided OW with 40 pages of information regarding her financial position; some of the information listed by the Administrator in its earlier submissions as not having been disclosed by the Appellant had, in fact, been disclosed; the Appellant had signed consents allowing the Administrator to make independent inquiries; and, if information was still missing, the onus was on the Administrator to clearly tell the Appellant what information the Administrator was still seeking so that the Appellant could meet the statutory requirements.

[16] The Administrator filed supplementary written submissions on March 18, 2016 referencing evidence provided by the Appellant to the Administrator that, on October 15, 2012, she had paid to TD Auto Finance Canada $13,265.45 to repay a loan in her father’s name that had been used to purchase the white 2010 Toyota for her daughter. The Appellant had submitted a further document that, on April 15, 2013, the Appellant’s father had transferred the white Toyota to her.

[17] On March 23, 2016, the community legal officer resubmitted the Appellant’s original written submissions, with few changes or additions.

[18] As became apparent during the hearing before the Tribunal, there was much confusion in the written and oral evidence as to whether, at any given point in time, reference was being made to a white or grey 2010 Toyota and whether the vehicle being referred to was the one driven by the Appellant or by her daughter. An inordinate amount of time and effort went into determining who purchased, who drove, and who paid for the vehicles in question. What is significant is that, in the written submissions of the Appellant, at no time was it argued that, if the Tribunal found that the Toyota driven by the Appellant’s daughter was owned by the Appellant, it did not meet the definition of “asset” in the relevant jurisprudence because it was not accessible to the Appellant or capable of being liquidated by the Appellant to be used to meet her own financial needs. Nor was it ever submitted that, even if the vehicle was an “asset”, it was an “exempt asset” under s. 39(1)5.1 of O. Reg. 134/98.

[19] At the end of the hearing before the Tribunal, the submissions made by the community legal worker on behalf of the Appellant and those made by the OW representative focused entirely on what property the Appellant owned at the time she applied for OW benefits, whether she had advised OW of that property when she made her application, whether she had withdrawn pension funds in the twelve months preceding the application, how she had used those funds, and whether she had provided information to OW regarding this withdrawal. The Appellant’s community legal worker never raised the issue as to whether the vehicles fell within the definition of “assets” as that term should be interpreted in the context of social assistance legislation. As well, she never asked the Tribunal to make a finding as to whether the second or third vehicle were exempt under s. 39(1)5.1 of O. Reg. 134/98.

The Tribunal’s Decision dated August 19, 2016

[20] After dealing with several arguments on preliminary, procedural, points, the Tribunal started its Reasons on the merits of the appeal by referring to ss. 7(1) and (3) of the Act and s. 14(1) of O. Reg. 134/98:

Who receives income assistance

7(1) Income assistance shall be provided in accordance with the regulations to persons who satisfy all conditions of eligibility under this Act and the regulations.

Eligibility for income assistance

7(3) No person is eligible for income assistance unless,

(b) the budgetary requirements of the person and any dependants exceed their income and their assets do not exceed the prescribed limits, as provided for in the regulations;

(c) the person and the prescribed dependants provide the information and the verification of information required to determine eligibility including,

(i) personal identification information, as prescribed,

(ii) financial information, as prescribed, and

(iii) any other prescribed information; and

(d) the person and the person’s dependants meet any other prescribed conditions relating to eligibility.

14(1) The administrator shall determine that a person is not eligible for income assistance if the person fails to provide the information the administrator requires to determine initial or ongoing eligibility for income assistance, including information with respect to,

(a) new or changed circumstances;

(b) participation in employment assistance activities;

(c) the receipt or disposition of assets; and

(d) the receipt or expected receipt of income or some other financial resource.

[21] The Tribunal also referred to Rea v. Administrator, County of Simcoe Social Services Department (2005), 2005 47596 (ON CA), 79 O.R. (3d) 583 (C.A.), at para. 3, in which it was held that:

Section 14(1) of the Regulation, on a plain reading, obliges the administrator to determine that a person is not eligible for income assistance if the person fails to provide requisite information to the administrator, including information with respect to new or changed circumstances. This section is mandatory. It provides for no exception on account of dependants included in an income assistance recipient’s benefit unit.

[22] Further, at paras. 7-9 in Rea, the Court of Appeal stated that s. 14(1) of O. Reg. 134/98 must be interpreted in light of the Act, and particularly s. 7(3) of the Act, which makes it clear that the recipient’s obligation to provide full and accurate information about his or her financial circumstances, not only in the original application but also on an ongoing basis, is central to the entire scheme of the Act, and is required for the Administrator to determine financial need.

[23] The Tribunal correctly stated that, pursuant to s. 28(11) of the Act, the onus was on the Appellant to satisfy the Tribunal on a balance of probabilities that the Administrator’s decision was wrong. The Tribunal concluded that the Appellant had failed to meet that onus.

[24] The Tribunal first considered the Administrator’s finding that the Appellant owned three vehicles at the time she submitted her application for OW benefits. The Tribunal referred to the MTO records to the effect that a 2010 grey Toyota, a 2010 white Toyota, and a 1999 Oldsmobile were registered in the Appellant’s name as of the date of the application. The Tribunal reviewed in detail the documentary and oral evidence provided on behalf of the Appellant regarding ownership, use of, and payment for these three vehicles and pointed out how this evidence was inconsistent, contradictory, and unreliable. Ultimately, the Tribunal preferred the documentary evidence from the MTO to the documentary and oral evidence of the Appellant. The Tribunal found that, when the Appellant submitted her application for OW benefits on August 20, 2013, she was the owner of three vehicles but had only declared one of those vehicles on the application. Thus, the Tribunal upheld the Administrator’s decision on the reconsideration that the Appellant had failed to give accurate information to OW regarding her assets at the time of her application.

[25] The Administrator went on to find that the value of these vehicles far exceeded the allowable asset limit of $5,000 that was the applicable limit for the Appellant as a single person, who had applied for OW benefits with a first-time ODSP application in process. It was not in dispute that $5,000 was the applicable limit in these circumstances. Thus, the Tribunal upheld the Administrator’s decision that the Appellant had assets in excess of the allowable limit under the Act and regulations.

[26] Finally, the Tribunal found that the Appellant had cashed in her RRSP and used $13,265.45 of the monies to pay down the debt on the Toyota being used by her daughter. This amounted to the Appellant investing the proceeds from an exempt asset in a non-exempt asset, namely a second vehicle. The Tribunal agreed with the Administrator’s assessment that the Appellant, as a single individual, with no one else in her benefit unit, was entitled to only one exempt vehicle, and according to the evidence, that was the grey 2010 Toyota that the Appellant was driving and that she had declared on her application.

Issue One: What is the appropriate standard of review of the Tribunal’s decision?

[27] Section 31 of the Act provides that a Tribunal’s decision may be appealed to the Divisional Court on a question of law. Such questions include the incorrect interpretation of a statutory provision, applying the wrong test, addressing the wrong question, ignoring material evidence, relying on irrelevant factors, or making a finding on no evidence. (See Nova Scotia (Human Rights Commission) v. Play It Again Sports Ltd., 2004 NSCA 132, 227 N.S.R. (2d) 292, at para. 50.)

[28] On appeals relating to questions of law, the standard of review is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8, namely the standard of correctness. (See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37.)

Issue Two: Could the Tribunal consider issues in addition to “assets in excess”?

[29] In the Appellant’s Factum, it was argued that the Tribunal should have limited its consideration to whether the Appellant had assets in excess of the allowable limit. The Tribunal should not have considered the issues of inadequate disposal of assets and the failure to provide financial information because those two grounds to deny the Appellant eligibility to OW benefits were not initially relied on by the Administrator. It was only when the initial decision of August 28, 2013 was reconsidered on September 6, 2013 that the two additional reasons for the denial were added.

[30] The Appellant’s counsel advised during the hearing that this ground of appeal was no longer being advanced.

Issue Three: Did the Tribunal err in law by applying an incorrect test to what constituted the Appellant’s assets at the time of the application?

[31] The Tribunal kept its analysis simple in terms of what constituted the Appellant’s assets at the time of the application. First, it determined that the Appellant owned three vehicles. It based this finding on the documentary evidence from the MTO, preferring it to the oral and documentary evidence of the Appellant, which it found to be unreliable. The Tribunal was tasked with hearing and weighing all the evidence and making findings regarding credibility and reliability. This finding involved a question of fact. It is not subject to appellate review. Even if it were, the standard of review would be palpable and overriding error. There was ample evidence to support the Tribunal’s finding that the Appellant owned three vehicles at the time of her application for OW benefits.

[32] Counsel for the Appellant argued that the Tribunal dismissed outright the Appellant’s evidence regarding ownership of the vehicles because she had some cognitive impairment, and this was the basis of the fourth ground of appeal. This is not a fair reading of the Tribunal’s decision.

[33] The Tribunal noted that one of the reasons why the Appellant may have had difficulty accurately recalling or recounting details of ownership, use of, and payment for the three vehicles in question was that the Appellant, by her own declaration, had cognitive difficulties as a result of epilepsy. In saying this, the Tribunal was not being disrespectful of the Appellant or dismissive of her evidence just because she had a cognitive impairment or disability. On the contrary, it is clear on the record that the Tribunal, through the course of its involvement on this file, attempted to be accommodating to the Appellant’s special needs and was not dismissive of them. The Tribunal made every effort during the hearing to try to understand the Appellant’s evidence and see how it fit with other, documentary, evidence. However, treating the Appellant fairly did not require the Tribunal to find that the Appellant’s evidence regarding the vehicles was credible and reliable when it was clearly mired by inconsistency and contradictions.

[34] The most significant argument advanced on behalf of the Appellant was that the Tribunal equated legal ownership of property with ownership of an “asset” as that term is meant to be understood in the Act. According to the Appellant, the Tribunal stopped at step one of the analysis of what constituted an asset, but there were two further steps that it had to take before it could conclude that all three vehicles were in fact assets of the Appellant for the purpose of the Act.

[35] As mentioned above, step one was determining legal ownership, which the Tribunal chose to do through reference to vehicle registration with the MTO.

[36] According to the Appellant, step two would have required the Tribunal to ask whether the motor vehicle in question was truly an “asset” as that term should be defined in the context of legislation conferring benefits on vulnerable persons or persons with disabilities. The Appellant referred to the well-established principle that Ontario statutes and regulations are deemed to be remedial, and legislation must be given “such fair, large and liberal interpretation as best ensures the attainment of its objects” (Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, s. 64(1)). The Supreme Court of Canada affirmed in Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 36, that benefit-conferring legislation ought to be interpreted in a broad and generous fashion.

[37] Although the term “asset” is not defined in the Act, OW Directive 4.1 states the following:

Assets may include cash, as well as bonds, debentures, stocks, certificates, the cash surrender value of a life insurance policy, interest in property, a beneficial interest in assets held in trust and other property which can be readily converted into cash, even if a financial penalty must be incurred to do so. Unless otherwise exempt, all assets are included in the determination of eligibility for income assistance. [Emphasis added.]

[38] There is jurisprudence to the effect that, in determining whether property is an “asset” of someone, regard must be had to the context in which the determination is being made. Here, the context is the provision of social assistance to those in need. In Guy v. Ontario Works (2001), 2001 40230 (ON SCDC), 147 O.A.C. 261, at para. 20, the Divisional Court stated that the Tribunal was correct in considering concepts of liquidity and accessibility when determining whether a property interest amounted to an “asset” for the purpose of the Act. The Court stated: “[i]f the assets are not liquid, or not accessible, or both, they should not be included as assets in any calculation of eligibility.” In a somewhat similar context, the Supreme Court of Canada found in S.A. v. Metro Vancouver Housing Corporation, 2019 SCC 4, 430 D.L.R. (4th) 621, at paras. 47-48, that the word “asset” in the context of a rental assistance program meant an applicant’s property or interest in property that could actually be used to discharge debts and liabilities.

[39] According to the Appellant, if the Tribunal had found under step two that the motor vehicle in question was an asset within the meaning of the Act, the Tribunal had to proceed to step three, which was a determination of whether the asset was exempt under the Act and regulations. Of particular relevance were the provisions in s. 39(1)5 and 5.1 of O. Reg. 134/98, which read:

39(1) For the purpose of section 38, the following are not included as assets:

5 Subject to paragraph 5.1, a person’s interest in a motor vehicle.

5.1 Subject to subsection (2), where there is a second motor vehicle in addition to a motor vehicle referred to in paragraph 5 that is required to enable persons to participate in employment assistance activities or to maintain employment, for the second vehicle the lesser of the value of the person’s interest in the vehicle and $15,000.

[40] In the Tribunal’s reasons, it stated in a rather conclusory fashion that the second vehicle was not exempt as an asset because the Appellant was applying for benefits as a single person; in other words, there were no other persons in her benefit unit. Therefore, s. 39(1)5.1 had no application. In its Reasons, the Tribunal offered no analysis of the meaning of “persons” in s. 39(1)5.1 to determine whether the use of the second vehicle by the Appellant’s daughter to attend a course at a community college to improve her employment opportunities could bring her within the category of “persons” in this section, even though she did not live with the Appellant and no part of the Appellant’s OW benefits related to her.

[41] According to the Appellant, it was only after the Tribunal had conducted this three-step process that the Tribunal could consider whether the value of the Appellant’s non-exempt assets exceeded the allowable limit. However, this three-step legal analysis was not raised at the time of the hearing before the Tribunal either in the Appellant’s written submissions or in her oral submissions. These issues are being raised for the first time on appeal. As was stated in Walsh v. Ontario (Disability Support Program), 2012 ONCA 463, 294 O.A.C. 174, at para. 67: “[i]nherent in the appellate function is the requirement that in most cases, issues should be raised and adjudicated upon before they will be considered on appeal: R. v. Rollocks (1994), 1994 8728 (ON CA), 19 O.R. (3d) 448 (Ont. C.A.), at p. 453”.

[42] The Appellant’s counsel argued that, since the Appellant was not represented by legal counsel before the Tribunal, and in view of the reality that she was a vulnerable, disadvantaged individual with cognitive difficulties, it was incumbent on the Tribunal to fully canvas any legal argument favouring the Appellant that could reasonably arise from the evidence before the Tribunal, even if that argument was not raised by the Appellant. This argument ignores the fact that the Appellant did not adduce evidence of a nature that truly brought into focus the issue of whether the second Toyota being driven by the Appellant’s daughter was inaccessible to the Appellant and could not have been liquidated to help the Appellant meet her own financial needs.

[43] The Appellant provided no evidence to the effect that she could not access the value of the second vehicle to meet her own financial needs. The only evidence regarding how the 2010 Toyotas were actually used came from a letter dated October 6, 2014 submitted by the Appellant’s daughter to ODSP in regard to her own claim for benefits. The letter was signed by the Appellant’s father. There was a statement in the letter to the effect that, after the Appellant had lost her licence, she transferred the vehicle that she had been driving to her daughter so that her daughter could commute to community college where she was enrolled in a personal support worker program. The vehicle identification number referred to in the letter was the one that, elsewhere in the evidence, was referred to as the grey Toyota that the Appellant drove. This letter raised far more questions than it answered. The inconsistencies in the evidence tendered by the Appellant respecting the vehicles registered in her name were not dealt with in any meaningful way during the Appellant’s oral evidence at the hearing.

[44] The Tribunal made no error in law by not exploring the issues of accessibility and liquidity in regard to the second vehicle in the absence of evidence giving life to the issue. The cases before the Tribunal in which an interest in property was found not to be an “asset” because the item was not really available and accessible to the person, can be distinguished.[^1] In those cases, there was clear evidence on the subject. It was not for the Tribunal, in this case, to speculate that the second vehicle was unavailable to the Appellant and could not be liquidated to help meet her financial needs.

[45] The Appellant’s argument regarding the third required step in the analysis, namely a consideration of s. 39(1)5 and 5.1 of O. Reg. 134/98, carries even less validity. The Tribunal acknowledged that the one vehicle the Appellant listed in her application for OW benefits was exempt under s. 39(1)5 of O. Reg. 134/98. The third vehicle, the 1999 Oldsmobile, was of marginal relevance in the sense that the highest evidence tendered by the Administrator was that its value may have been only $2,975. What the Appellant was seeking was a finding that the second vehicle was an exempt asset.

[46] During the course of the appeal process, the Administrator repeatedly signalled that the Appellant’s second vehicle did not qualify as an exempt asset. It was for the Appellant to put forward the countervailing argument that it did meet the test to be exempt. The Appellant failed to refer to s. 39(1)5.1 of O. Reg. 134/98 at any time during her written or oral submissions to the Tribunal. More specifically, the Appellant failed to argue that the word “persons” in that section covered the Appellant’s daughter. It was not for the Tribunal to have to guess that this was what the Appellant was hoping to rely on. This is especially so in view of the contents of OW Directive 4.5 dealing with Motor Vehicles. That directive makes it clear that, from the perspective of OW, second motor vehicles are exempt as assets up to a maximum value of $15,000 only if the applicant can show that the vehicle is required to enable other members of the benefit unit to participate in employment assistance activities or to maintain employment. It was not in dispute that the Appellant’s daughter was not a member of her benefit unit. Thus, the Appellant was on notice as to how OW interpreted the word “persons” in s. 139(1)5.1 of O. Reg. 134/98, and if she wanted to advance another interpretation of that word in that section of the regulations, it was incumbent on her to raise that argument.

[47] According to the Red Book, a 2010 Toyota on the application date was worth $14,600. There was also evidence that, on September 26, 2014, the Appellant’s father sold the 2010 Toyota being driven by the Appellant’s daughter for $9,200. Thus, there was evidence on which the Tribunal could rely that the second car had a value in excess of $5,000 (the allowable limit for non-exempt assets in this case) as of the date of the application for OW benefits.

[48] From this flows the conclusion that the Tribunal did not make an error in law when it determined that the Appellant’s non-exempt assets as of the date of her application for OW benefits included a second vehicle, the value of which exceeded the allowable limit of $5,000.

[49] This finding disposes of the appeal, because the finding on the part of the Tribunal that the Appellant had non-exempt assets exceeding the allowable limit of $5,000 rendered her ineligible to receive OW benefits, regardless of any other finding made by the Tribunal regarding the inadequate disposal of funds or the failure to provide accurate and complete financial information.

Disposition

[50] The Appellant’s appeal is dismissed. As no party is seeking costs on the appeal, none are ordered.

___________________________ Aitken J.

I agree

Pattillo J.

I agree

Penny J.

Released: February 24, 2020

ONSC 303

DIVISIONAL COURT FILE NO.: 613/16

DATE: 20200224

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

AITKEN, PATTILLO and PENNY JJ.

BETWEEN:

KATHLEEN TREUER

Appellant

– and –

ADMINISTRATOR, SOCIAL SERVICES DEPARTMENT DURHAM REGION and DIRECTOR, ONTARIO DISABILITY SUPPORT PROGRAM

Respondents

REASONS FOR JUDGMENT

Aitken J.

Released: February 24, 2020

[^1]: See the Appellant’s Factum, at para. 61.