Court File and Parties

CITATION: Newman v. Ontario (Disability Support Program), 2023 ONSC 3059

DIVISIONAL COURT FILE NO.: TBD

DATE: 2023-05-23

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Christopher Beverley Newman also known as Christopher Warren Bonin, Appellant/Moving Party

AND:

The Director of the Ontario Disability Support Program, Respondent/Responding Party

BEFORE: The Honourable Mr. Justice A.D. Kurke

COUNSEL: Mr. Newman, acting on his own behalf

Ms. M. Singh, for the Respondent/Responding Party

HEARD: Virtually at Sudbury, May 18, 2023

ENDORSEMENT

[1] I heard submissions on May 18, 2023, about whether the moving party’s appeal should be permitted to be filed. The moving party sought to file an appeal 16 or 17 days beyond the 30-day deadline set out in s. 70(a) of O. Reg. 222/98 under the Ontario Disability Support Program Act (“ODSPA”).

[2] The moving party submits that there is a discretion in the court to permit an extension of time to file an appeal in the circumstances of a case involving a disabled appellant in a regime designed specifically to assist those with disabilities. The responding party argues there is no jurisdiction to extend the time for commencing an appeal to Divisional Court from a decision of the Social Benefits Tribunal (“SBT”) in any circumstances, as the ODSPA and its regulation provide for no extension of time.

[3] Having heard the parties, I am directing that this issue be heard by a full panel of this court during the October 2023 sittings.

[4] The issue involves the jurisdictional interplay of at least the Courts of Justice Act, s. 66, the ODSPA and O. Reg. 222/98, as well as rr. 61.04 and 3.02 of the Rules of Civil Procedure. The authorities cited to me by the responding party do not consider that r. 61.04(1) expressly incorporates statutory appeals into regulation by the Rules, potentially permitting the operation of r. 3.02 to extend the time to launch an appeal. None of the authorities that has been cited to me therefore adequately considers the force of the moving party’s argument about what I have termed the “jurisdictional interplay.”

[5] Accordingly, significant questions remain involving access to justice and the opportunity to have legal conclusions by the SBT tested in the courts. In particular, the moving party’s case highlights the possible draconian consequences of even a minor delay in filing an appeal to the Divisional Court on an issue under the ODSPA if there is, as asserted by the respondent, no ability to extend the deadline for appeal under any circumstances.

[6] I direct the following:

a. The moving party may file his appeal with the Divisional Court. Although the issue of leave to file late remains to be decided, filing will permit the SBT to fulfil its administrative duties and materials for an appeal to be released. If a panel of this court permits the appeal to proceed, then the time to a hearing on the merits will be abbreviated;

b. The moving party shall also file a formal motion to extend the time for filing his appeal. The motion will be properly supported by affidavit evidence and the decisions appealed from. That affidavit will relate to the motion issues and not more than necessary to the merits of the appeal; and

c. The motion to extend the time for filing will be heard by a full panel of this court at a half-day hearing at the October 2023 sittings. The moving party will file his materials for the motion no later than 4:00 p.m. on July 28, 2023.

The Honourable Mr. Justice A.D. Kurke

LAJ, Div. Ct., NE Region

Date: May 23, 2023