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ODSP - Appeal - Rules. Swerdfiger v. Director of the Ontario Disability Support Program [challenge to tribunal Rules on appeal]
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 denies the appellant's effort to challenge SBT Rules as having "failed to keep up with the Tribunal's power to review Code violations":Are the Tribunal's rules procedurally unfair?
[19] The appellant submits that the rules of the Tribunal have failed to keep up with the Tribunal's power to review Code violations, a power that was made clear in Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14, because the rules themselves fail to accommodate individuals with disabilities.
[20] The appellant refers to four rules in the Tribunal's rules of procedure: Ontario Social Benefits Tribunal, Rules of Procedure for Appeals to the Social Benefits Tribunal. She contends that, while rules 4.3 and 4.4 allow a respondent to change positions and to rely on additional facts up to 30 days before the hearing of an appeal, r. 5.11 precludes an appellant from filing new medical information later than 30 days before the hearing of an appeal. She submits that this guarantees that appellants have no opportunity to provide medical evidence concerning new arguments or positions where a respondent changes positions at the last possible opportunity.
[21] As alluded to earlier, a stand-alone challenge to the Tribunal's rules is beyond the scope of this court's jurisdiction to consider under s. 31(1) of the ODSPA. Our jurisdiction is limited to questions of law. While a denial of procedural fairness is an issue of law, it must be shown that the rules resulted in the actual denial of procedural fairness, and not just that they might have done so: Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022), at para. 6.05.
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