CITATION: Barron v. Ontario Disability Support Program (Director), 2023 ONSC 3784
DIVISIONAL COURT FILE NO.: 290/22
DATE: 20230626
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Lococo and O’Brien JJ
BETWEEN:
KELLY BARRON
Appellant
– and –
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
Self-Represented
Michelle Schrieder, for the Respondent
HEARD: June 12, 2023, by videoconference in Toronto
O’BRIEN j.
reasons for JUDGMENT
Overview
[1] The appellant Ms. Barron brings this appeal from a decision of the Social Benefits Tribunal dated December 12, 2021, and the Tribunal’s reconsideration decision dated May 2, 2022.
[2] In the December 2021 decision, the Tribunal dismissed Ms. Barron’s appeal from a decision of the Director of the Ontario Disability Support Program (“ODSP”). Her appeal to the Tribunal centered on the Director’s treatment of a tax payment she made to the Canada Revenue Agency (“CRA”) in April 2021. She argued that the Director should have taken the payment into account when determining her income for support in June 2021. The Tribunal dismissed the appeal and later refused her application for reconsideration of that decision. Ms. Barron submits before this court that the Tribunal erred in upholding the Director’s decision. She also submits she was denied procedural fairness at the hearing before the Tribunal.
[3] It is first necessary to explain the background to Ms. Barron’s receipt of ODSP benefits. There is some dispute between the parties about this background, although the dispute ultimately does not have any impact on the outcome of this appeal.
[4] Both parties agree that Ms. Barron was receiving ODSP income support benefits at the outset of 2021. They differ on whether those benefits ended. According to the Director, Ms. Barron’s benefits were suspended on February 21, 2021 for failure to provide verification and were terminated as of February 28, 2021. Ms. Barron appealed the suspension, after which, according to the Director, Ms. Barron received interim assistance from March to August 2021 pending the appeal. Ms. Barron states that she had been receiving ODSP all year except for one month.
[5] In any event, on May 9, 2021 Ms. Barron sent a letter to the Director stating that she had been required to pay $220 in April 2021 for taxes owing. As the Director took the position that Ms. Barron was not receiving ODSP income support at that time (only interim assistance), the Director did not make any decision regarding the CRA payment.
[6] Ms. Barron then requested an internal review of the failure to respond to her May 9, 2021 letter. Under s. 22 of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sched. B (“ODSPA”), a person who wishes to appeal a Director’s decision must first request an internal review. In the internal review request, Ms. Barron submitted that her June statement should have deducted the CRA amount. The Director denied the request for internal review on the basis that no appealable decision (as defined in s. 21 of the ODSPA) had been made on Ms. Barron’s file. The Director’s letter, dated June 9, 2021, also stated that the CRA payment would be reviewed to determine whether it could be used to offset Ms. Barron’s business income when reviewing the associated annual business income and expenses. Ms. Barron wrote a further letter dated June 16, 2021 asking the Director to change the decision.
[7] Ms. Barron also appealed the decision to the Tribunal. The Tribunal dismissed the appeal for two reasons: (1) Ms. Barron was in receipt of interim assistance and not ODSP income support at the relevant time; and (2) the CRA tax payment, which it found related to business income dating back to 2014, would be taken into account in a later review of her business earnings. It would not be deducted from her monthly employment earnings in June 2021.
[8] At the hearing in this court, Ms. Barron made brief oral submissions but mostly relied on her written submissions. I understand her primary submissions to be as follows:
- The Tribunal breached procedural fairness in that:
(a) It refused to allow her former spouse Rusty Barron to represent her at the hearing of her appeal, although she was at work and unavailable to attend.
(b) She did not receive a copy of the Director’s Form 3 submission, which was the Director’s response to her appeal; and
(c) The Director did not respond to her June 16, 2021 letter.
Contrary to the Director’s position that her ODSP benefits had terminated, she had been receiving ODSP all year except for one month.
She paid the $220 in income tax in June 2021. It would be unfair not to deduct this payment particularly since the ODSP continued to deny her a year-end review for her business income.
[9] For the reasons that follow, the appeal is dismissed.
Analysis
[10] Subsection 31(1) of the ODSPA provides that any party may appeal the Tribunal’s decision to this court, but only on a question of law.
[11] Where questions of procedural fairness are dealt with through a statutory appeal mechanism, as in this case, they are subject to appellate standards of review. For questions of law, the appellate standard of review is correctness: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328, at paras. 27 and 30.
No Question of Law
[12] Ms. Barron has not identified any error of law in the Tribunal’s decision. She submits that, contrary to the Tribunal’s reasons, she was receiving ODSP benefits at the relevant time. I understand this submission to mean that she was not receiving interim assistance, as stated by the Tribunal.
[13] The record before this court does not include any documents on which the court can determine whether Ms. Barron’s ODSP benefits were terminated. Counsel for the Director explained that this was because that issue was being dealt with in a separate appeal. The information nonetheless should have been put before this court given that the Tribunal’s decision is based in part on this point.
[14] That said, Ms. Barron’s submission on this issue is factual or, at most, a question of mixed fact and law. She claims that she continued to receive ODSP benefits, whereas the Tribunal found that her benefits ceased effective March 2021. No extricable legal principle arises from Ms. Barron’s submission.
[15] In any event, even if Ms. Barron were receiving ODSP benefits at the relevant time, there is no question of law related to the Tribunal’s treatment of the CRA payment. The Director stated the CRA payment would be considered as a part of the overall review of Ms. Barron’s business earnings. The Tribunal found this position to be reasonable, especially considering that Ms. Barron was not carrying on a business but instead working as an employee in June 2021. Although Ms. Barron believes the payment should be deducted from her monthly earning from employment, she has not identified any error of law in the Tribunal’s decision.
No Breach of Procedural Fairness
[16] Ms. Barron’s primary submission with respect to procedural fairness is that her former spouse was not permitted to represent her at the hearing. This submission is without merit. The Tribunal adjudicator allowed her former spouse to assist Ms. Barron throughout the hearing. As the adjudicator explained in her decision, she gave him “wide latitude to make hearsay submissions” on behalf of Ms. Barron. She did not permit him to give evidence on Ms. Barron’s behalf, which was appropriate.
[17] Ms. Barron also states the hearing should not have proceeded while she was at work. However, the notice of hearing was sent to Ms. Barron on July 22, 2021. She had almost five months to arrange her availability before the December 14, 2021 hearing date. The adjudicator also stood the matter down to allow Ms. Barron’s former spouse to contact her at work, after which Ms. Barron participated in the hearing. Overall, the adjudicator provided Ms. Barron with an appropriate opportunity to present her case in all the circumstances.
[18] Although she did not bring a motion to introduce new evidence, Ms. Barron sought to rely on an audio recording that captured the discussion before the official hearing transcript began. The transcript began when Ms. Barron joined the hearing. I have listened to the audio recording and find it does not provide new information that is not already summarized in the Tribunal decision. Therefore, considering the principles in Re Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd., 1980 1877 (ON CA), it is not admissible as fresh evidence on this appeal.
[19] In response to Ms. Barron’s submission that she did not receive the Director’s Form 3, the record of proceeding includes a Form 3 that the Director understands was sent to Ms. Barron. However, if Ms. Barron did not receive it, the Form 3 provides the same substantive position as found in the Director’s June 9, 2021 letter, which Ms. Barron did receive. Accordingly, Ms. Barron was aware of the Director’s position and did not suffer any procedural unfairness.
[20] Finally, with respect to Ms. Barron’s submission that she did not receive a response to her June 16, 2021 letter, I am not aware of any requirement for the Director’s office to respond when it had already provided a response to her request for internal review. This does not constitute a breach of procedural fairness.
Disposition
[21] As Ms. Barron has not raised an error of law or shown a breach of procedural fairness, the appeal is dismissed.
[22] Counsel for the Director advised that the Director is not seeking costs. Therefore, no costs are awarded.
O’Brien J.
I agree _______________________________
Stewart J.
I agree _______________________________
Lococo J.
Released: June 26, 2023
CITATION: Barron v. Director of the Ontario Disability Support Program, 2023 ONSC 3784
DIVISIONAL COURT FILE NO.: 290/22
DATE: 20230626
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Lococo and O’Brien JJ
BETWEEN:
KELLY BARRON and rusty barron
Appellants
– and –
DIRECTOR OF THE ONTARIO DISABILITY SUPPORT PROGRAM
Respondent
REASONS FOR JUDGMENT
O’BRIEN, J
Released: June 26, 2023