CITATION: M.I. v. Administrator, Ontario Works Region of Peel, 2024 ONSC 1975
DIVISIONAL COURT FILE NO.: 696/22
DATE: 20240327
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Kurz, and O’Brien JJ
BETWEEN:
M.I.
Appellant
– and –
Administrator, Ontario Works Region of Peel
Respondent
- and –
SOUTH ASIAN LEGAL CLINIC OF ONTARIO
Intervenor
A. Bakshi and A. Merdzan, for the Appellant
J. Bruce and J. Corcoran, for the Respondent
A. Bhatia, for the Intervenor
HEARD: February 1, 2024
O’BRIEN J.
reasons for DECISION
Overview
[1] The appellant is a mother of three children. She testified before the Social Benefits Tribunal that because of abuse from her husband, in 2004, she moved with their children from Vancouver to Toronto. When she moved to Toronto, her husband was restricted from contact with the family and went to Pakistan. In Toronto, the appellant began to receive social assistance benefits from Ontario Works.
[2] In 2021, the administrator of Ontario Works decided to cancel the appellant’s assistance and assessed an overpayment of over $95,000 for payments she received from January 1, 2015 to July 31, 2021. The administrator reasoned that the appellant had failed to provide information and was “not living as a single person.” Although not expressly stated, the administrator’s concern was that the appellant had a “dependant spouse.” The legislation calculates financial eligibility based on a “benefit unit.” A dependant spouse forms part of the benefit unit. Whether a spouse is a dependant turns on a connection to the dwelling place, as defined in the regulations.[^1]
[3] The appellant appealed to the Tribunal, which upheld the administrator’s decision. The appellant testified before the Tribunal that her husband was living primarily in Pakistan and, when he arrived in Toronto, stayed for less than a month. The Tribunal did not find this evidence credible. It relied instead on Ministry of Transportation records in which the appellant’s husband had used her address and on CRA notices of assessment saying that she was married. The Tribunal rejected the appellant’s assertions of domestic violence as evidence that her husband was not residing with her. It also rejected her evidence that she had been honest with the administrator about her marital situation.
[4] After the Tribunal denied the appeal, the appellant made a freedom of information request to obtain her Ontario Works file, which had not otherwise been provided to her. She did not receive the file until after she filed a request for reconsideration of the Tribunal’s decision. When her reconsideration request was denied, she sought a second reconsideration enclosing evidence found in her Ontario Works file. The evidence included documents related to her home and financial obligations, such as her lease, credit cards, and utility and water bills, that were in her name only, with no reference whatsoever to her husband. It also included the case worker notes in which the appellant had provided information about her situation with her husband.
[5] The central question on this appeal is whether the Tribunal breached procedural fairness when it issued boilerplate reasons denying the second request for reconsideration. The Tribunal issued a decision with a single paragraph of substantive reasons that repeated the identical paragraph provided in response to the first reconsideration decision. The appellant submits the Tribunal erred by ignoring relevant evidence from the Ontario Works file and/or by providing inadequate reasons. She goes on to argue that, in its initial decision, the Tribunal applied the wrong legal test in determining whether the appellant’s husband was a dependant spouse and relied on discredited stereotypes and Western assumptions in assessing the appellant’s credibility.
[6] For the reasons that follow, I conclude the Tribunal breached procedural fairness by providing inadequate reasons. Because I find a breach of procedural fairness, I do not address the appellant’s submissions, nor the related submissions of the intervener, regarding the merits of the original Tribunal decision. The matter shall be remitted to the Tribunal to be determined at a de novo hearing.
Jurisdiction and Standard of Review
[7] The Divisional Court has jurisdiction to hear this appeal under s. 36(1) of the Ontario Works Act, 1997, S.O. 1997, c. 25, Schedule A (the Act), which permits an appeal to the Divisional Court from any Tribunal decision on questions of law.
[8] For questions of procedural fairness, the court will determine whether the requisite level of procedural fairness has been accorded by considering the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
Did the boiler plate reasons dismissing the second reconsideration request deny the appellant procedural fairness?
[9] The respondent submits the reasons on the second reconsideration decision did not deny the appellant procedural fairness. From its perspective, the appellant did not provide any new evidence that would have had a material effect on the decision, especially since the evidence could have been obtained with reasonable diligence for the original hearing. It also emphasizes that the reasons should be read in the context of the evidentiary record and that less detailed reasons may be required where the decision is apparent from the record.
[10] I disagree that the reasons were adequate in the circumstances. The duty of fairness is flexible and may vary based on all the circumstances. Baker lists the following factors to consider in assessing the requisite degree of procedural fairness in a particular case: (a) the nature of the decision; (b) the statutory scheme; (c) the importance of the decision; (d) the legitimate expectations of the person challenging the decision; and (e) the choice of procedure made by the decision-maker. As detailed below, I find that in this case, those factors weigh in favour of a decision that addressed the appellant’s new evidence and arguments on the second reconsideration request including whether and why that evidence was accepted or rejected.
Nature of the Decision and Statutory Scheme
[11] The nature of the decision and the statutory scheme do not weigh in favour of detailed reasons in all cases, though, in my view, comprehensive reasons may be required in some cases.
[12] The decision at issue was a second reconsideration request following an appeal and first reconsideration request. The Act provides for an appeal of the administrator’s decision to the Tribunal: s. 28(1). The appeal itself incorporates procedural protections at the high end of the spectrum. It involves an oral hearing at which the parties are entitled to provide written submissions and oral evidence. The Tribunal is also required to give reasons for its decision: s. 31(2). In this case, the Tribunal delivered a 13-page written decision upholding the administrator’s decision.
[13] The statutory scheme also provides for reconsideration requests, including second reconsideration requests. Section 79 of the General Regulation under the Act permits a person to file a request for reconsideration of a Tribunal decision within 30 days. The other parties are entitled to make written submissions in response to the request and the Tribunal is required to issue a decision on whether to hold a reconsideration hearing.
[14] The Tribunal’s Practice Direction on Reconsideration Requests recognizes the grounds on which a reconsideration hearing may be granted, including jurisdictional error, a violation of the rules of natural justice or procedural fairness, serious errors of law and new evidence that is material and was unavailable. The practice direction also recognizes the possibility of subsequent requests for review, stating that they will not be granted absent “exceptional circumstances.” This could include where “a failure to grant a subsequent reconsideration would result in serious procedural or substantive unfairness to a party.”
[15] Where a second reconsideration request is granted, I agree with the respondent that the Tribunal is not required to give reasons. Barnes v. Ontario (Social Benefits Tribunal), [2009] O.J. No. 3096 (Div. Ct.) explains why there is good reason for the Tribunal not to provide reasons when granting a request for reconsideration. As the Court stated at para. 31, in that situation, reasons would inevitably touch on the substance of the request, which could influence the member who eventually presided at the hearing.
[16] But this reasoning does not apply to the denial of reconsideration requests, where there is no subsequent re-hearing and where the appellant’s rights are finally determined (subject to appeal). In Barnes, at para. 31 the Court also noted that it was the Tribunal’s practice to provide very brief reasons for denying an application for a reconsideration hearing. I agree this will be appropriate in many cases. A reconsideration request is a subsequent procedural option available to an appellant who has already had a full hearing before the Tribunal. It occurs in writing. Given the Tribunal’s substantial case load, there is a benefit to the Tribunal being able to deal with these matters expeditiously. In many cases, particularly where the submissions on the reconsideration mirror arguments made at the original hearing or the first reconsideration request comprehensive reasons will not be necessary.
[17] However, the requirements of procedural fairness must be determined on a case-by-case basis. Given that a party may be alleging serious procedural or substantive unfairness on the second reconsideration request and that the denial of a reconsideration request finally determines the party’s rights, procedural fairness requirements are higher than where a reconsideration hearing is granted. In some cases, procedural fairness may require more comprehensive reasons.
Importance of the Decision
[18] The decision in this case was important. It finally determined the appellant’s rights to what was described as “last resort income assistance” serving some of the most vulnerable people in our province. In this case, although the Tribunal questioned the appellant’s relationship with her husband, there is little doubt that she suffered violence in the relationship given the police involvement in Vancouver, which restricted her husband’s contact for two years. She moved to Toronto on her own with three children.
[19] It should be noted that by the time of the Tribunal hearing, the appellant’s husband had moved into her apartment and was working as an Uber driver. The appellant testified before the Tribunal that the situation was “complex.” She said he still gambles and refuses treatment for a mental health condition that has resulted in multiple suicide attempts over the years. She submits before this Court that his return after the cancellation of her income assistance should not be used against her since it “reinforces the sad reality that legal errors entrapped [her] with her abuser.” The Tribunal did not make any findings on the reasons for the appellant’s husband being added by the landlord to the lease. But there is little doubt that the appellant is vulnerable. A decision to cancel her last-resort income assistance and charge her an overpayment of more than $95,000 is very serious.
Legitimate Expectations of the Appellant
[20] There is no express requirement in the Act or its regulations for the Tribunal to provide reasons for dismissing the second reconsideration request. However, given the importance of the decision, it was reasonable for the appellant to expect reasons and indeed it appears to be the Tribunal’s practice to provide at least brief reasons. The degree to which those reasons need to be comprehensive will depend on the specific circumstances of the case.
Choice of Procedure Made by the Tribunal
[21] The Tribunal’s choice in this case was to provide very brief reasons that repeated the reasons responding to the first reconsideration request. Deference to this choice of procedure will not always be warranted. The Tribunal’s practice direction allows for the possibility of appellants bringing forward new evidence that would have a material effect on the decision. The practice direction also recognizes that serious procedural or substantive unfairness may need to be rectified on reconsideration. In these circumstances, procedural fairness may require more comprehensive reasons.
Application to this Case
[22] In this case, the new evidence and submissions on the second reconsideration request were highly material and had the potential to impact the outcome. The evidence was material to two issues: (1) the Tribunal’s negative assessment of the appellant’s credibility; and (2) the appellant’s evidence that her husband did not live with her. The brief reasons the Tribunal provided did not meet procedural fairness requirements in the context of this additional evidence.
[23] Turning to the first issue, the evidence was material to assessing the appellant’s credibility. The Tribunal’s negative assessment of the appellant’s credibility arose from her testimony about the nature of her relationship with her husband and what she had previously told the administrator about that relationship.
[24] The appellant testified before the Tribunal that she continued to be legally married to her husband but was not “religiously married” and that her marriage would not be viewed as valid in her Muslim religion. She explained that she did not know when her husband would be in Canada but when he came, he would stay with her for maximum less than a month. She stated that she had always been honest with the administrator regarding her marital situation. She also alleged the administrator told her to apply for benefits as a single person.
[25] The Tribunal found the appellant’s assertion that she had been honest about being married and that she was told to apply as a single person “less than believable.” The Tribunal member stated at para. 27 of her reasons:
The Tribunal finds this assertion less than believable and not supported by any credible and compelling evidence. The evidence shows the Appellant had clearly represented herself as being “separated” and denied the existence of any dependant living elsewhere during contact with the Administrator.
[26] The second way in which the additional evidence was material relates to the appellant’s evidence that her husband did not live with her. The Tribunal member rejected the appellant’s evidence that her husband only stayed with her sometimes for less than a month, stating at para. 33:
The Tribunal finds the Appellant’s claim that IB [the appellant’s husband] was not her spouse because they were separated, and IB only stayed with her sometimes for less than a month at a time to be less than credible given the other, more compelling, and consistent evidence establishing otherwise.
[27] The Tribunal relied on Ministry of Transportation records in which the appellant’s husband had been reporting his primary residence as the appellant’s apartment. She also relied on the appellant’s CRA information in which she had consistently indicated her husband was her spouse.
[28] The additional evidence submitted by the appellant on the second reconsideration request was directly material to these two points. The appellant filed case worker notes that she submitted corroborated her oral testimony that she had told her caseworker she was married and her situation with her husband was complex. The notes provide direct evidence of her disclosing they were married, that he was away in Pakistan and that he resided outside Canada. They also reference the complexity of the situation due to his mental illness. The caseworker notes include the following:
• A note from March 8, 2016 stating: “Client declared that her spouse suffers from mental illness and has severe depression and has attempted suicide. Currently spouse is in Pakistan due to his illness to be close to his family. Client declared that she herself feels very anxious.”
• A note from September 29, 2016 stating: “She has lived through the traum[a] of her spouse trying to commit suicide 5 times while raising their 3 children. He now resides outside Canada.”
• A note from August 12, 2019 stating: “Client submitted a hand written note to indicate that her spouse is not currently in Canada, however, on December 31, 201[8] he was in the country. She further states he uses her address. Client submitting a note indicating she is not divorced and therefore still considers herself as married. She states that her spouse is not in the country.”
• A handwritten note estimated to be from 2020 in which the appellant states that she is still legally married but her husband spends most of his time out of the country: “Since we do not communicate often I am not aware of his actual address. To the best of my knowledge, he is residing in Pakistan. He occasionally return [sic] to Canada but spends majority [sic] of his time out of country and I am not aware of his plans to return. He last resided in Canada in September 2019.”
• The appellant had filled out an Ontario Works form entitled “Pursuit of Support from Absent Person” documenting efforts to pursue support from her husband.
[29] The evidence also included documents that the appellant said demonstrated she lived in her apartment alone with her three children and without financial support from, or dependence by her husband. The evidence included the following documents only in her name: her apartment lease; utility, water, and wastewater bills; two bank accounts and a mutual fund RESP family plan; and credit card statements. The bank statements only in her name showed withdrawals for Bell Canada and Enbridge bills.
[30] In short, the submissions on the second reconsideration request do not simply repeat or provide a minor variation on what the Tribunal heard at the first hearing. They provide substantial new documents potentially demonstrating her sole financial responsibility for the apartment. They also provide documents demonstrating specific information provided to the caseworker about her marital status and her husband’s whereabouts that could be material to the Tribunal’s adverse credibility findings.
[31] In the context of these submissions, the substantive reasons of the Tribunal on the second consideration request repeat the same brief, generic paragraph as the decision dismissing the first reconsideration request:
It is the responsibility of the SBT member to reach a decision based on the oral and written evidence presented at the hearing. In my view, the decision is both correct and in accordance with the legislation and relevant case law. The member’s reasons are clear and complete and there is no need to repeat them here. Therefore, it is not my view that a reconsideration hearing is warranted in this matter.
[32] These reasons do not advert in any way to the additional evidence and submissions. Given the impact of the decision on the appellant and the materiality of the evidence in her second reconsideration submissions, these reasons were inadequate.
[33] The respondent submits the Tribunal was not required to consider the evidence on the second reconsideration request because the appellant failed to provide an adequate explanation for why those records could not have been produced with reasonable diligence for the initial hearing. The respondent emphasizes that the lease and other financial documents would have been available to her and states she ought to have requested the Ontario Works file “well in advance” of the Tribunal hearing.
[34] I find these submissions wholly unpersuasive for the following reasons:
(a) While I accept that the lease and other financial documents were available to the appellant earlier, I also take into account that she was self-represented at the hearing.
(b) The respondent, a public provider of last-resort income benefits to a vulnerable population, had these documents in its own file but did not disclose them to the Tribunal. The respondent only provided the Tribunal with the documents supporting its position, such as the Ministry of Transportation and CRA documents.
(c) The respondent did not disclose the appellant’s file to her. She had no ability to access the case worker notes without filing a freedom of information request.
(d) In any event, the Tribunal did not explain whether or why it was refusing to consider the additional evidence. Based on the reasons provided, there is no way to know whether the Tribunal member was even aware that additional evidence was filed on the second reconsideration request.
[35] The Tribunal’s practice direction on subsequent reconsiderations recognizes the possibility of a second reconsideration hearing where the failure to grant it would result in serious substantive unfairness. The new evidence here is highly material, was never considered by the original adjudicator, and relates in part to the appellant’s credibility. In my view, the new evidence raises a sufficient prospect of serious substantive unfairness that the matter should be remitted to the Tribunal for a hearing de novo.
Disposition
[36] The appellant raised additional submissions contesting the merits of the Tribunal’s original decision. She has asked the court to overturn the cancellation of her benefits and rescind the overpayment assessed against her. She views an order remitting the matter to the Tribunal as an alternative remedy. Given my conclusion that the Tribunal breached procedural fairness, the most appropriate remedy is to remit the matter to the Tribunal to give it an opportunity correct the procedural error. The new information raises sufficiently serious concerns that it is appropriate for the court to determine on the written record that a de novo hearing should be ordered for the Tribunal to fully address the evidence. The matter is therefore remitted to the Tribunal for a new hearing. As agreed by the parties, there shall be no order for costs.
O’Brien J.
I agree _______________________________
Stewart J.
I agree _______________________________
Kurz J.
Released: March 27, 2024
CITATION: M.I. v. Administrator, Ontario Works Region of Peel, 2024 ONSC 1795
DIVISIONAL COURT FILE NO.: 696/22
DATE: 20240327
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Stewart, Kurz, and O’Brien JJ
BETWEEN:
M.I.
Appellant
– and –
ADMINISTRATOR, ONTARIO WORKS REGION OF PEEL
Respondent
- and –
SOUTH ASIAN LEGAL CLINIC OF ONTARIO
Intervenor
REASONS FOR JUDGMENT
O’BRIEN, J
Released: March 27, 2024
[^1] A spouse is a “dependant” in the benefit unit if they are either (a) a person who “resides in the same dwelling place” as the recipient; or (b) absent from the dwelling place of the recipient “if the absence is for a reason other than a breakdown in the relationship with no reasonable prospect of reconciliation”: O. Reg. 134/98, s. 1(1)(a)-(b).