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ODSP - Appeal - Fresh Law. Swerdfiger v. Director of the Ontario Disability Support Program
In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".
Here the court declines to consider an SDA issue as being fresh law:Did the Tribunal err in finding that mere weight loss is not enough to qualify for an SDA?
[38] The appellant submits that the Stage 2 Tribunal was wrong not to conclude that a weight loss of more than 10 percent qualifies a recipient for an SDA regardless of the medical condition causing it. She argues that s. 2(2) of the Schedule was misinterpreted. To provide context, I set out ss. 2(1), (2), and (3), which read:2. (1) For the purposes of subparagraph 4 i of subsection 30 (1) and subparagraph 4 i of subsection 33 (1) of Ontario Regulation 222/98 (General) made under the Act, the amount determined in accordance with Schedule 1 that the Director shall include in the recipient’s budgetary requirements shall be, for each medical condition requiring a special diet that a member of the recipient’s benefit unit has,
(a) the amount set out in Column C of Schedule 1, subject to subsections (4) to (9); or
(b) if Column B of Schedule 1 indicates that the medical condition is a condition that may cause weight loss, the amount determined in accordance with subsections (2) and (3).
(2) If a member of a recipient’s benefit unit has a medical condition that may cause weight loss, as indicated in Column B of Schedule 1, the amount that shall be included in the recipient’s budgetary requirements shall be, subject to subsection (3),
(a) if the member has lost more than 5 per cent but no more than 10 per cent of his or her usual body weight, the amount set out in Column C of Schedule 1; or
(b) if the member has lost more than 10 per cent of his or her usual body weight, $242.
(3) If a member of a recipient’s benefit unit has more than one medical condition that may cause weight loss, as indicated in Column B of Schedule 1, the amount to be included in the recipient’s budgetary requirements shall be determined as if the member only had one such condition. [39] The appellant points to the difference in wording between subsections (a) and (b) of s. 2(2). She contends that, because subsection (b) does not refer to any column in the Schedule nor to any medical condition, a recipient qualifies for an SDA under s. 2(2) so long as they have lost more than 10 percent of their usual body weight, regardless of the cause.
[40] Unlike the appellant's argument about the additional costing evidence, this submission does raise a question of law. However, this submission goes to the merits of the Director's decision, which the appellant conceded at Stage 1. Of course, given the bifurcation of the issues, this issue was not raised at Stage 2. I am not persuaded that the interests of justice require this issue to be raised for the first time in an appeal in which the appellant conceded the issue in the proceedings below. . Swerdfiger v. Director of the Ontario Disability Support Program
In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".
The court considers a fresh law on appeal issue, in this SBT context:[36] Further, it is not clear from either the reconsideration decision or the record that this argument was made before the Tribunal. If it was, then it is at least a question of mixed fact and law that cannot be appealed under s. 31(1) of the ODSPA. If it was not, then it is also an issue being raised for the first time on appeal. This is not permitted, except where the interests of justice require it and where the court has a sufficient evidentiary record and findings of fact to consider the issue: Quan v. Cusson, 2009 SCC 62, [2009 3 S.C.R. 712, at para. 37. That threshold has not been established.
[37] For these reasons, this ground of appeal must fail. . Swerdfiger v. Director of the Ontario Disability Support Program
In Swerdfiger v. Director of the Ontario Disability Support Program (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from SBT decisions "by the Director of the Ontario Disability Support Program (“ODSP”) in which the Director denied the appellant’s application for a special diet allowance (“SDA”) based on a medical condition known as “Avoidant/Restrictive Food Intake Disorder” (“ARFID”)".
Here the court considered a late change argument regarding in the Director's legal position, essentially an administrative appellate 'fresh law' issue:Did the Tribunal apply its rules unfairly?
[23] The appellant submits that the Tribunal failed to apply its rules in a “neutral way” when it allowed the respondent to change its position 10 days before the hearing and refused to give the appellant an opportunity to respond. I am unable to accept this argument.
[24] The Stage 2 appeal was scheduled to be heard on July 25, 2024. The appellant filed her written submissions on June 24, 2024. Under rule 4.5, the respondent was required to file its response no later than 10 days before the hearing. The rule provides:Unless the parties agree otherwise, where the respondent intends to rely on any further evidence or submissions in reply to the evidence and submissions of the appellant it must be delivered to the appellant and filed with the [Tribunal] no later than 10 days before the hearing. [Emphasis added.] [25] The respondent filed its written submissions on July 15, 2024, 10 days before the hearing. The appellant contends that she was denied procedural fairness because the respondent's written submissions raised new issues to which she was not permitted to respond. I disagree.
[26] In her written submissions, the appellant argued that the decision in Ball had been altered by the HRTO's later decision in Buklis v. Ontario (Community and Social Services), 2013 HRTO 918. She submitted that Buklis had changed the test set out in Ball to require only that a claimant for an SDA establish: (1) that the medical condition in question may cause weight loss, and (2) that it is generally recognized in the Ontario medical community that a person with the condition should increase food consumption in excess of a regular healthy diet as a result of the weight loss. If accepted, this argument would have eliminated the need to establish the third Ball criterion of increased food costs.
[27] Contrary to the appellant's submission on this appeal, the respondent's written submissions did not raise any new issues. Instead, the respondent merely submitted that Buklis had not changed the test in Ball and that the appellant had not filed sufficient evidence to meet the second and the third criteria in the Ball test. The respondent's submissions were responsive only and complied fully with the provisions of rule 4.5. No new issues were raised and, consequently, the appellant was not denied procedural fairness.
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