Court File and Parties

CITATION: Coughlin v. Director, Ontario Disability Support Program, 2021 ONSC 1236

DIVISIONAL COURT FILE NO.: 39/20

DATE: 2021-02-18

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: PATTY ANN COUGHLIN, Appellant

AND: DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM, OF THE MINISTRY OF COMMUNITY AND SOCIAL SERVICES, Respondent

BEFORE: Swinton, Pattillo and Boswell JJ.

COUNSEL: Arash Ghiassi and Melinda Rees, for the Appellant

Mimi Singh, for the Respondent

HEARD at Toronto (by videoconference): February 11, 2021

Endorsement

[1] The appellant, a recipient of benefits under the Ontario Disability Support Program (“ODSP”), appeals a ruling of the Social Benefits Tribunal dated August 7, 2020. The appellant sought to challenge the calculation of an overpayment balance of $5,814.25 set out in her payment stub from September 2016. The Tribunal issued an “interim ruling”, holding that it had no jurisdiction to deal with complaints respecting the determination of overpayments in 2010 and prior years. The Tribunal indicated that the hearing would proceed on the issue of the deduction made in September 2016 and her claim of financial hardship. The appellant sought an adjournment of the Tribunal proceeding to bring this appeal, which was granted.

[2] Before this Court, the Director raised a threshold issue of prematurity, arguing that the appeal should not be heard on its merits, because the Tribunal has not yet rendered a final decision in the appeal before it. After hearing submissions, the Court held that the appeal should be dismissed on the grounds of prematurity with reasons to follow. These are those reasons.

[3] Subsection 31(1) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (the “Act”) provides for an appeal to the Divisional Court on a question of law. It states,

Any party to a hearing before the Tribunal may appeal the Tribunal’s decision to the Divisional Court on a question of law.

Pursuant to s. 31(2), the Tribunal must file the “prescribed” documents, which constitute the record in the appeal.

[4] Subsection 71(1) of O. Reg. 222/98 sets out the “prescribed” documents, such as the notice of appeal, evidence filed with the Tribunal and, most importantly, in clause (f) “the final decision and any preliminary decisions of the Tribunal.”

[5] The Director submits that there can be an appeal to this Court only from the final decision of the Tribunal on the merits of the appeal before it, relying on the statutory language and the administrative law jurisprudence on prematurity.

[6] The appellant takes the position that the word “decision” in s. 31(1) of the Act does not mean a final decision, in the sense of a decision on the merits of the appeal before the Tribunal. Rather, the appellant argues that there is a right to appeal any “final” determination, relying on the test for final and interlocutory orders used in the civil justice system. She cites Hendrickson v. Kallio, 1932 123 (ON CA), which held that an order is final if it finally decides a matter in dispute between the parties. Here, she submits, the Tribunal has finally decided the issue of its jurisdiction to deal with her dispute about the amount of overpayment, both in respect of a payment in 2010 and other calculations back to 2002.

[7] In my view, Hendrickson does not assist in determining the scope of the right to appeal in s. 31(1) of the Act. It is a case that arose in the civil context to determine statutory lines of appeal for orders that are either final or interlocutory (see The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640 (Div. Ct.) at paras. 14, 16).

[8] In the administrative law context, the courts have applied the doctrine of prematurity, both in appeals and applications for judicial review, and refused to review preliminary decisions of administrative tribunals in order to prevent fragmentation of the administrative process and delay. Three of many examples where this has occurred in Ontario, in the context of a statutory appeal, are Roosma v. Ford Motor Co. of Canada Ltd., 1998 5633 (ON SCDC) at para. 30, Taylor v. Aviva Canada Inc., 2018 ONSC 4472 (Div. Ct.) at para. 19, and Traders General Insurance Company v. Rumball, 2019 ONSC 1412 (Div. Ct.) at para. 20. It is instructive to quote the words of Marrocco A.C.J.S.C. in Taylor at para. 19:

The fact that both an appeal and a request for reconsideration can proceed at the same time is, however, subject to the jurisprudence of this court. This court is reluctant to hear appeals from interim or interlocutory orders of administrative decision makers for the same reason that it is reluctant to hear judicial review proceedings before the administrative decision-making process has ended. Such appeals fragment the administrative proceeding and increase costs. Accordingly, courts have interpreted language that grants an appeal from a “decision or order” of a board or tribunal as limited to an appeal of a final order (see, for example, Roosma v. Ford Motor Co. of Canada Ltd. (1988), 1988 5633 (ON SCDC), 66 O.R. (2d) 18 (Div. Ct.), at para. 26; and Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, 285 O.A.C. 218 (Div. Ct.), at paras. 72-73). If a proceeding is “fatally flawed”, an interim or interlocutory decision might be challenged. However, at such a hearing, prematurity may still be raised by the opposing party, and the court may refuse to hear the matter (see, for example, Deutsche Bank Securities Limited v. Ontario Securities Commission, 2012 ONSC 1576, 295 O.A.C. 1 (Div. Ct.)).

[9] In the present case, the Act does not include the word “final” before “decision” in s. 31(1). However, the administrative law jurisprudence suggests that the right of appeal is only from a final determination of the merits by the administrative tribunal whose decision is challenged.

[10] Such an interpretation is also consistent with the wording of s. 71(1) of the Regulation. The record of the appeal is to include the “final” decision, as well as any preliminary decisions. While the appellant suggests that the regulation cannot restrict the scope of the statutory right of appeal, the regulation does not purport to do so. The prescribed requirements for the record are consistent with an interpretation of s. 31(1) as permitting appeals only after a full determination of the merits.

[11] Such an interpretation is also consistent with the policy of the Act, which sets out an administrative scheme for the review and appeal of orders that is meant to be expeditious (see Walsh v. Ontario (Disability Support Program), 2012 ONCA 463 at para. 77). To allow appeals of preliminary decisions would result in fragmentation of the administrative process and cause delay.

[12] Accordingly, this appeal is dismissed on the ground of prematurity. There is no order as to costs.

Swinton J.

I agree _______________________________

Pattillo J.

I agree _______________________________

Boswell J.

Released: February 18, 2021