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Appeal-Judicial Review - Copied Reasons. M.I. v. Administrator, Ontario Works Region of Peel
In M.I. v. Administrator, Ontario Works Region of Peel (Div Court, 2024) the Divisional Court considered an appeal against a SBT welfare finding that a single-parent-eligible recipient was co-habiting with her husband, assessing both a significant over-payment and a disentitlement. Appeals under the Ontario Works Act are limited to 'questions of law' [OWA s.36(1)].
The appellant obtained supportive FIPPA records of her file after a first SBT reconsideration was decided against her. On that basis, she then sought a second reconsideration which was denied with 'boilerplate reasons', which she then appealed successfully on Baker procedural fairness grounds of 'inadequate reasons':[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.
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[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 CanLII 699 (SCC), [1999] 2 S.C.R. 817.
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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. At paras 22-35 the court applies the case facts to the Baker procedural fairness test, set out above: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.
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[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. . Shnier v. Begum
In Shnier v. Begum (Div Court, 2023) the Divisional Court considered an RTA eviction appeal where the issue was whether a contractual yearly renewal option prohibits the landlord from serving a personal possession termination on the annual renewal.
In these quotes the court considered an argument of LTB 'boilerplate reasons' as a matter of procedural fairness, here on a decision to decline a review (reconsideration):Did the Board in review deny the Appellant procedural fairness by issuing inadequate or “boilerplate” reasons for dismissing his request for a review?
[27] The Appellant sought a review of the Board’s decision, which under Rule 26.8(e) of the Landlord and Tenant Board, Rules of Procedure, September 1, 2021, need only establish a “serious error” made by the Board at first instance. He submits that the reasons rejecting his request for a review hearing were seriously deficient, amounting to cursory “boilerplate.”
[28] The reasons on review read as follows:ln the request, the Tenant makes several submissions rearguing their position and submitted case law in support of their position.
The Tenant identifies several points they believe to be errors in law. However, in my view, concerns identified by the Tenant in their request is in fact the Tenant rearguing their position, which should have been submitted at the hearing held on February 3,2022.
A request to review is not an opportunity for a party to re-litigate or reargue their position in hopes of a more favorable outcome. Nor is it an opportunity to present evidence and submissions that could and should have been presented at the hearing.
In the request to review, the Tenant does not identify any serious error in the order or in the Board's proceeding.
On the basis of the submissions made in the request, I am not satisfied that there is a serious error in the order or that a serious error occurred in the proceedings.
It is ordered that:
The request to review order TNL-34432-21 issued on February 7,2022, is denied. The order is confirmed and remains unchanged. [29] The application of the principles of procedural fairness to procedures adopted by a statutory tribunal benefit from considering the well-known Baker factors in the relevant context of the tribunal’s procedural options. Here, as a creature of statute, the Board is directed by the Residential Tenancies Act, 2006, S.O. 2006, c. 17, s. 183 as follows:183 The Board shall adopt the most expeditious method of determining the questions arising in a proceeding that affords to all persons directly affected by the proceeding an adequate opportunity to know the issues and be heard on the matter. [30] The request to review followed a full hearing on the merits, at which the parties gave evidence, were able to cross-examine and test the evidence, and make submissions. They received written reasons from the Board on all of the matters in issue. The request to review came before a different Board member who provided reasons in writing. Those reasons revealed an awareness of the allegations of errors in law, case law in support and the reviewing Member’s conclusion that there were no errors of law, and that the arguments were an attempt to relitigate findings of the Board that had been made.
[31] Taking these procedural steps into account, and applying the Baker factors to the review stage, I conclude as follows: (1) the nature of the decision and the process followed in making it were aligned with fairness principles—the parties had the benefit of a full hearing prior to the review process and although the decision is an important one, the review took place as a secondary review, and not as a final potential step in the process. If there had been errors of law made by the Member at first instance, these are subject to correction on appeal;
(2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates—s. 183 provides for expeditious methods which is aligned both with the importance of regulating rental housing which often affects vulnerable members of the population and is responsive to the high volume nature of the work of the Board. The review step achieves a balance and provides an intermediate level of oversight to the work of the Board conducting hearings, while ensuring that clear errors can be caught and corrected on a review hearing;
(3) the importance of the decision to the individual or the individuals affected—it is evident that housing is a critical factor in matters of health, well-being, stability and personal and community stability;
(4) the legitimate expectations of the person challenging the decision- the Board’s Rules allow for persons affected by its decisions to know the criteria and role of the review process; thus it can be said that the procedures adopted by the Board in conducting its reviews are not arbitrary and can create expectations that they will be carried out in accordance with its Rules. Here there is no suggestion that the Board did not carry out the review in accordance with its Rules and the reasons advert to the material put before the decision maker, who can be presumed to have read and considered them; and
(5) the choices of procedure made by the agency itself—the Board is an expert tribunal and is permitted by its statutory framework to make rules and procedures that are expeditious. This choice is reflected in the review process.
See Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras. 22-27. [33] I find that on balance, the reasons provided on review although general in nature, do not amount to a failure to provide responsive reasons, particularly in circumstances where the review is a written record and submissions. I conclude that the Appellant was not denied procedural fairness in the request to review the Board’s decision. . The Corporation of the City of Windsor v. Paciorka Leasehold Limited
In The Corporation of the City of Windsor v. Paciorka Leasehold Limited (Div Ct, 2021) the Divisional Court considered the issue of 'judicial copying' (although here it was by a tribunal) as an aspect of judicial independence:[49] In Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, the Supreme Court of Canada addressed the issue of “judicial copying”. The Court held that judicial copying raises issues of natural justice because it goes to the issue of whether the decision maker decided the matter independently.
[50] In Cojocaru, at para. 22, the Court emphasized that there is a presumption of judicial impartiality and that the onus is on the party challenging the decision to rebut the presumption:There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently. [51] In Cojocaru, at paras. 35-36, the Court stated that “extensive” judicial copying is to be discouraged but that, on its own, it is not evidence of a lack of independence. The copying must be “of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision”. The Court also held that, while it is expected that adjudicators will make their decisions independently, it is not improper for some copying from the parties’ submissions to take place. The issue is whether the reasoning and assessment of the evidence occurred independently.
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