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ODSP - Reconsideration. 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 considers an SBT reconsideration issue:Did the Tribunal apply too strict a test for reconsideration?
[28] As mentioned earlier, in the reconsideration decision, the Tribunal held the appellant had failed to establish that she could not have called the additional costing evidence by exercising due diligence. It also held that there had been no procedural unfairness and that the Stage 2 Tribunal had made no legal errors. The appellant submits that the Tribunal employed too strict a test and was empowered to reconsider the Stage 2 decision for “any reasonable reason”. Again, I disagree.
[29] The scope of the Tribunal's reconsideration process is governed by the Tribunal's practice direction: Ontario Social Benefits Tribunal, Practice Direction on Reconsideration Requests. Pursuant to the practice direction, new evidence is not permitted unless it “could not have been obtained by reasonable diligence for the original hearing.” This is precisely the standard applied by the Tribunal with respect to the additional costing evidence the appellant sought to adduce.
[30] The practice direction also provides that the Tribunal will reconsider a decision where “a serious error or omission has occurred.” There is nothing in the reconsideration decision to suggest that the Vice Chair applied any criteria other than that referred to in the practice direction. As he wrote, “the decision is both reasonable and in accordance with the legislation and relevant caselaw.”
[31] As I will explain, I agree with the Vice Chair that the Stage 2 Tribunal committed no legal error.
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