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Simon Shields, LLB

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Simon Shields,
LLB

Barrister and Solicitor
(Retired)
LSUC #37308N


simonshields@isp.com

Legal Writing and Research


Return to First Part of Chapter

(i) Interim Assistance

. Overview

As noted above, the last two pages of the standard four-page "Notice of Appeal" are an "Application for Interim Assistance". "Interim Assistance" ("IA") refers to a written order by the SBT, to the ODSP Director, ordering THE DIRECTOR to reverse the effects of the challenged decision for a specified time, and start paying the appellant (ie. the Tribunal does NOT pay IA to the recipient itself). Basically, IA "stays" (cancels) the Director's order until the matter is resolved by the Tribunal. HOWEVER, if the appellant loses, the IA "overpayment" will be assessed as a debt owing (see below).

In most ODSP appeal cases where the appellant is already receiving ODSP it makes sense to request IA during the appeal. However, in cases where an ODSP "applicant" (ie. not yet on ODSP) has applied for and been denied ODSP eligibility, no IA will be ordered at the ODSP rate because IA is only available to "recipients" [Act s.25] in such cases. This is distinct from the situation where an applicant is denied welfare (Ontario Works), where IA is available to both "applicant and recipient" [OW Act s.30]. Applicants not yet on ODSP who are denied eligibility are normally on welfare during their appeal period.

The Tribunal's "Practice Direction" on interim assistance is linked here:

SBT Practice Direction 1: Interim Assistance

. Application

Interim income support orders will NOT normally be made retroactively ("except under unusual circumstances": Practice Direction), so the Application should be made at the same time that a Notice of Appeal is filed, or as soon thereafter as possible.

IA orders are typically made for 4-6 months at a time, and are normally extended (on request to the CSR - NOT automatically) as long as it takes to have the matter decided by the Tribunal. The appellant should request (by letter or phone) the extension BEFORE it expires, otherwise a fresh IA application will have to be made (the Practice Direction says to request extension two weeks before expiration). Fresh financial information may be required on an extension request, although in most cases the appellant's financial situation will not have improved significantly.

The "amount" of IA order will typically reflect the "status quo" - that is - what the income support level would have been (or was) BUT FOR the Decision under challenge. In no instance shall it exceed the income support and benefits that would otherwise be paid [Reg s.66].

. Criteria

The legal criteria for IA to be granted are as follows:
  • Financial Hardship:

    The appellant will be in "financial hardship" during the period up to the Tribunal's Decision being issued (the IA Application requests financial information) [Act s.25(1)]; and

  • Assume Otherwise Eligible:

    The appellant meets all other eligibility requirements "other than a condition relating to the issue under appeal" [Act s.25(2)].
This second criteria is important. It means that - for the purposes of determining IA eligibility ONLY - the issue under challenge in the appeal WILL be decided in the appellant's favour. So - for example - if the issue on appeal is "failure to provide information necessary to determine eligibility" - the SBT will assume, for purposes of granting IA alone - that the information requested has been provided and is satisfactory.

That said, the Tribunal has stated in its "Practice Direction" that it will not allow interim income support "to a person who is clearly categorically ineligible under the legislation". This is a temptingly reasonable limit, although not one in accordance with the law. Further - now that Human Rights Code law may be argued to override ODSP law (see "Ontario Human Rights Code", below), situations of "categorical ineligibility" may be subject to challenges
as discriminatory.

. Practice

The SBT, as a matter of practice, delegates the decisions about interim assistance to staff persons behind closed doors. Though it is legally open to a presiding Tribunal to consider and decide an IA request at a hearing, they do not do this as a regular matter and most members are not comfortable with it.

That said, IA can become an issue if the appellant is seeking an adjournment. When IA is "in-pay" in that situation suspicion can arise that the appellant is seeking an adjournment only for the purpose of prolonging IA in an otherwise losing cause. In this case a party or advocate should do what they can to give concrete assurances to the Tribunal that the adjournment will be short. One common way of doing this is to consent to the adjournment being "preemptory" - which means "no more adjournments" (though practically a later Tribunal member may disregard this).

As well, if an appellant is not on IA and an adjournment is sought, an advocate should always raise this fact in support of the adjournment - as it dispels this negative inference.

While the procedures of the "Statutory Powers Procedures Act" (SPPA) do not apply to an IA request [Act s.25(3)], the Tribunal has established an "Objection" procedure (in its "Practice Direction", above) where the appellant wishes to challenge an IA decision. To make an "Objection" the appellant should write the Chair a letter with the reasons why they object and mail it on the Director as well. The "respondent" (almost always the Director) also has a right to Object but will be expected to raise it immediately on receiving the IA order it objects to, unless the Objection is based on newly-arising information.

. IA and Overpayments

As noted above regarding overpayments, if IA is granted and the appellant later loses at the appeal hearing - or withdraws the appeal prior to hearing, then the amount of IA paid (ie. the amount paid over what they were actually entitled to) will be assessed as an "overpayment" (a debt owing), AND an overpayment deduction will almost certainly be imposed (if the person is still receiving benefits) [Act s.27]. Of course, where there is limited success in an appeal, the amount of the overpayment decision should be reflective of that success.

See Ch.11, s.3: "Director Decisions: Overpayment Decisions".

. Non-Compliance

In the rare cases where the Director refuses to comply with an IA order, the appellant is in the difficult situation of enforcing it.

The procedures for "enforcement" are generally discussed at the following link in the Statutory Powers Procedures Act (SPPA) program - however enforcement against a government "debtor" (in this case, the province) can involve specialized law which is beyond the scope of that program. Practically such situations are normally resolved by negotiation or even media pressure.

Administrative Law (Ontario)(SPPA): Ch.8: Enforcement

(j) Notice of Hearing and Scheduling

. Notice of Hearing

By law, "Notices of Hearing" are to be sent to all parties (see s.1(h): "Parties", above) within 60 days of the appeal being filed [Reg s.63(1)].

The Notice of Hearing should state:
  • the manner of hearing (ie. oral, written or electronic - see these separate topics below in s.2);

  • if oral hearing: the place, date and time of the hearing;

  • if written hearing: a schedule for the exchange of written submissions and documentary evidence.
. Scheduling

In practice Notices of Hearing are rarely served within 60 days of the appeal filing - it is typically much later.

At least 30 days notice of a hearing must be provided [Reg s.63(3)]. It is the practice of the Tribunal to waive this if all parties so consent (this is required when the parties agree to a short-date adjournment).

At the end of 2005 the average scheduling lag by my estimation was about 10 months, and shortening. A new Chair has made faster scheduling a priority.

It is common for the Tribunal to unilaterally reschedule hearings due to its own administrative needs or member availability. Typically such adjournments will be made to dates far enough ahead so that the parties once again have "reasonable notice" (bumping dates backward or forward a few days - or hours even - will normally only be done on consent of all the parties).

(k) "Early Resolution Program (ERP")

. Overview

The Tribunal, under its new Chair, has recently (28 November 2005) implemented rules establishing an "Early Resolution Program" (ERP) to "resolve cases in an efficient, effective and fair manner". These loose 'rules', embodied in the Practice Direction "Early Resolution Program", are in fact an implementation of two separate jurisdictional authorities granted to tribunals generally under the Statutory Powers Procedures Act (SPPA). Section 25.1 (and related sections) of the SPPA empowers tribunals to adopt new procedural jurisdictions by passing procedural rules for their implementation.

The specific SPPA authorities implemented under the ERP are those for "Alternative Dispute Resolution" and for "Pre-Hearing Conferences". The parameters of these general SPPA authorities are discussed at these links to the SPPA program:

Administrative Law (Ontario)(SPPA): Ch:12: Alternative Dispute Resolution

Administrative Law (Ontario)(SPPA)SPPA: Ch.13: Pre-Hearing Conferences

If anything, the Early Resolution Program leans more towards being an ADR or mediation process than a pre-hearing procedural ('let's get organized') session. This became more evident with the issuance of a separate "Pre-Hearing Conferences" Practice Direction, effective 01 February 07 [see sub-sec (k.1) immediately below].

Traditionally, ADR tends to focus on settlement of a case while pre-hearing conferences tend to focus on narrowing issues, disclosure of evidence, estimating hearing time, etc. As mentioned, the stated functions of ERP combine these purposes.

The Tribunal's Practice Direction "Early Resolution Program" is linked here: SBT Practice Direction 5: Early Resolution Program

. Procedures

The ERP procedure is new so actual practice is yet to be observed, but the following seem to be the main parameters:
  • the Tribunal will assess cases for suitability for ERP and where so inclined, issue an (optimistically-entitled) "Notice of Early Resolution Oppourtunity";

  • if a party "Objects" to this "Oppourtunity" (within ten days) or simply does not attend or participate, a regular hearing will be held;

    Note:
    The key issue here is whether the Notice will make the full hearing right and its pre-conditions CRYSTAL-CLEAR - or whether ambiguity will conceal it - effectively misleading appellants.

  • the form of the ERP session can be sit-down (oral) meeting, telephone conference, "negotiations, conciliations, and mediations" [there is no elaboration of what these quoted procedures involve - but GOSH they sure sound nice];

  • written submissions may be used at an ERP session, but should be filed and served at least five days beforehand;

  • ERP sessions will not be re-scheduled or adjourned for any reasons;

  • ERP proceedings and documentation produced within them are "privileged" and cannot be later used in evidence at a proper hearing.
. COMMENT

Please excuse my cynicism - but I come by it honestly. Keep one thing in mind when you read this: ANY ADR or settlement process - within any legal proceeding - is ONLY going to be productive when all participants competently and fully participate, pre-filing documents as required and attending with equality of knowledge and bargaining power.

On that understanding, I predict that the ERP program will be an unmitigated disaster for the following reasons. I review these from the relative perspectives of the participants:
  • Appellant's Counsel:

    The vast majority of represented appellants before the SBT are covered by legal aid - in either clinic or certificate form.

    Legal clinics have barely enough budget for a first attendence/conference in a matter, let alone a second. They are swamped as it is with one attendence of 1.5 hours per case - and have been turning cases away by the hundreds for years. Even the specialized Income Security Advocacy Clinic (ISAC) doesn't accept regular ODSP or ODSP eligibility cases.

    Legal aid certificates (for private lawyers) have inadequate time coverage for fees as it is without duplicating the attendence/conference commitments in a case. Besides, competent counsel have already explored all oppourtunities for settlement, narrowing and expediting issues as a part of their normal professional service to the client.

  • Respondent's Counsel

    Respondent "case presenting officers" (CPOs) only show up for maybe five (5) percent of hearings as it is - under the "old" system with one attendence required. Appellants' counsel trying to settle a case can rarely get anyone on the respondent's side to wrap their mind around a case before the hearing to facilitate settlement as it is - does anyone think that CPOs are magically going to now have free-time to engage in all the preparation required for an ERP session!

    Also, present CPO practice gives the CPO no role in "negotiating" settlements. The courts in civil trial "pre-trial conferences" go to great lengths to ensure that whoever attends has "authority" to settle the case - that is, they don't have to go running back to someone else to get permission (thus avoiding "double-dealing").

    CPOs have always had to clear any settlement terms with the supervisor back at the office - and those people have their hands full with the day-to-day administration of their programs. Has anyone talked to them about this?

  • Unrepresented Appellants

    Here's the real travesty.

    The "Notice of Early Resolution Oppourtunity" (sounds like some junk mail I got yesterday: "You May Have Already Won ...") requires parties to OBJECT to the ERP by their own action - and within ten days. Many appellants are illiterate, poorly skilled in English, intimidated by legal proceedings, mentally handicapped etc etc - does anyone think that such parties can make an informed decision about sophisticated legal issues against a much more experienced CPO on the other side?

    Most will show up clutching their papers to find themselves in a foreign world of administration and bureaucracy - and naturally react with the fear or anger already so epidemic amongst the poor.

    Experience the family law context has shown that ADR-type procedures are NOT suitable where there is an imbalance in the bargaining power between the parties - why does anyone think this is going to be any different here?

    The smart/lucky unrepresented appellants will be the ones who object to - or simply do not attend - their ERP session, for the rules in that case provide that the regular hearing will proceed (but only after Tribunal resources and time have been wasted in the process).

  • Tribunal Members

    Tribunal members are already stressed at having four or five hearings in a hearing day - not to mention the demands of writing rulings and attending updating and other administrative meetings. Hearing time is already dropped down to one from 1.5 hours - often running overtime.

    IF ANY significant consultation was undertaken with the members who actually DO the hearings before this rule was made, it sure hasn't been reflected in the result.
I welcome feedback from any parties having participated in ERP sessions.

(k.1) Pre-Hearing Conferences

. Overview

Also added by the Tribunal, effective 01 February 2007 are "pre-hearing conferences". They draw on most of the same SPPA authorities as does the "Early Resolution Program" (ERP) [see sub-sec. (k), immediately above]. Both processes allow parties and the Tribunal to address procedural issues in preparation for a hearing, although the ERP program is much more of a "mediation" or ADR (alternative dispute resolution) session. That said, the two are so similar in nature and function that I have a difficult time determining why separate processes are required. Of course, my cynicism about the earlier ERP process is already on-record(above), so I view this separate pre-hearing conference process as just compounding the pointlessness of the ERP.

The Tribunal's Practice Direction for "Pre-Hearing Conferences" is linked here:

Practice Direction 8: Pre-Hearing Conferences

The purposes of such conferences are set out as including discussion and resolution of such issues as:
  • narrowing of legal issues
  • fact agreements
  • evidence and witness disclosure
  • settlement
  • hearing conduct preparation
  • consolidation of related appeals
  • exclusion of parties from hearings
Readers wanting to review the SPPA provisions that ground the holding of pre-hearing conferences should follow the Isthatlegal.ca links set out in (k) above.

The procedures for pre-hearing conferences are largely the same as for ERP sessions (explained above), including the possible use of a variety of hearing forms including a right to object to non-oral hearings). The Tribunal intends that phone hearings will be used when the issues are entirely procedural in nature.

Pre-hearing conferences may be requested by either party (in writing, with reasons, within 10 days after the appeal is filed)- though only granted if the Tribunal agrees (in which case they are mandatory). Similarly, the Tribunal may simply require a pre-hearing conference unilaterally. The Practice Direction sets out that pre-hearing conferences will be mandatory in any case involving human rights issues being scheduled whenever the human rights issues first arise).

Unlike the ERP, there is provision for the issuance of written procedural orders or directions after a pre-hearing conference. This is consistent with the non-mediation focus of a pre-hearing conference (by comparison, matters discussed in an ERP session are generally "privileged" and may not be raised in the full hearing: see above).

(l) Adjournments

. Overview

Neither the ODSP Act nor the General Regulation regulate the granting or denying of adjournment requests. However the appeal hearing process is generally governed by the Statutory Powers Procedures Act (SPPA):

Administrative Law (Ontario)(SPPA): Ch.4: Hearings

As well, the Tribunal has issued a "Practice Direction" on this subject, linked here: SBT Practice Direction 4: Rescheduling of Hearings and Adjournments

Under the SPPA, the tribunal may adjourn the hearing either "of its own motion" or "where it is shown to the satisfaction of the tribunal that the adjournment is required to permit an adequate hearing to be held" [SPPA s.21]. As no criteria are set down for or against adjournments, common law factors such as fairness, right to counsel, evidence availability, illness etc will apply. (see "Factors Relevant to Adjournment", below).

If an adjournment is granted, the Tribunal will not at that time set the date for the next hearing, but will leave that to staff. They will typically however make the adjournment "pre-emptory", which is a fancy legal word meaning 'last time', indicating that the next hearing must go ahead without further adjournment. That sounds scary but in practice a second (or third) adjournment may sometimes be obtained if adequate reasons are again presented.

If an "administrative" (ie. pre-hearing) adjournment request is refused, the party may still raise the issue at the scheduled hearing before the presiding members.

As noted above, the Tribunal will give at least 30 days notice of the next hearing, unless the parties agree to 'waive' this notice [Reg s.63(3)]. An appellant seeking to have a hearing scheduling accelerated should obtain written consent to waive the 30-day notice from the Director and file this, and their own waiver letter, with the Tribunal. Before doing this however the appellant must be sure that their case is ready to go and that both the appellant and witnesses are available on short notice. The Tribunal has stated in their Practice Direction that unwritten consent to waive the 30-days notice may be accepted from unrepresented parties.

If an adjournment is granted you may hear the Tribunal member say, or include in their written adjournment ruling, that they are OR are not "seized" of the matter. "Seized" means that they will be the member to whom the matter comes back on re-scheduling. A member is "seized" when they start to hear evidence on the main issues in the case. Typically however in an adjournment the matter will be re-scheduled in front of any available Tribunal member.

Advocates who become familiar with the Tribunal members may actually desire to have or not have certain members 'seized' of the matter, depending upon their tendencies in ruling. It can be argued that even the hearing of ANY degree of evidence compels seizure - but on the other hand most members tend to avoid being 'seized' as this may delay the next hearing date to one when they are back at the appellant's location.

. "Consent" Adjournments

The term "consent adjournment" refers to the arranging of adjournments between the parties - "on consent". If such arrangements are made and communicated to the Tribunal well in advance so that the Tribunal has a chance to re-schedule without disruption, then typically there is no need for an attendence at the Tribunal.

The term "consent adjournment" is a bit misleading as it is still for the Tribunal to ultimately agree or not to any private arrangements made between the parties. However as long as the Tribunal is consulted well in advance of any changes - (ie. so that they do not lose any hearing time) - it is my experience that staff is quite amenable and helpful in re-scheduling cases.

The process is simple and practical. An initiating party will typically telephone and/or send a letter to the other part/ies explaining the reason for the adjournment and suggesting alternative dates. Brief written consents (usually just letters) are then prepared expressing consent to the adjournment (they need not be too formal - sometimes a signed hand-notation stating "Approved" in the margin of an adjournment request letter is adequate). Some counsel will include a list of available dates but it is ultimately for the Tribunal to assign a new date.

The practice of consent adjournments is highly desirable as it allows cases to proceed when the appellant is properly prepared. In my practice it has rarely been the situation that a new client's case with a "short date" is fully ready to be argued. It is my hope that the Tribunal's new emphasis on expediting hearings does not sacrifice this highly important flexibility.

. Contested Adjournments

If consent to an adjournment is not forthcoming from the other parties or the "administrative Tribunal" and the appellant still wishes it, then the adjournment must be argued before the presiding Tribunal as a preliminary issue at the date scheduled for the hearing. Of course, if that request is lost the appellant should be ready to proceed as best they can that day. Any unfair adjournment refusals resulting in ultimate loss of the case may form the basis of a later "reconsideration request" or court appeal (see these topics below).

In the case of a contested adjournment, it is HIGHLY useful (and expected) practice to put one's arguments and reasons for the adjournment in writing and file it with the Tribunal and serve it on the other parties as soon as possible (ie. as long before the scheduled hearing date as possible). To facilitate quick processing of the request, such letter should include the party's telephone number in the letter. Any party objecting to an adjournment should file their objections in writing, and serve them on the other parties. Unrepresented parties may make such objections by phone if they cannot do so in writing.

Tribunal members review files before hearing and want as much information as possible before they go into it. If they are favourably inclined to your request on the basis of the letter then it can also reduce their busy workload as full review of that file may not be required.

It is important to note that if a Tribunal member hears an adjournment request and grants it then they are not likely to be the hearing member at the new date UNLESS they have 'hear evidence' in the case. If they have heard evidence then they become "seized" of the matter by virtue of the principle that members who decide a case must hear ALL the evidence in a case [OW Act s.66(4)] [see sub-section 1(c) above: "The Social Benefits Tribunal: Basic Principles of Adjudication"].

. Factors Relevant to Adjournment

The primary concern of the Tribunal on the issue of adjournments is that the hearing be conducted fairly and without undue delay. Specific factors relevant to the granting or refusing of an adjournment request include:
  • Obtaining New Medical Evidence

    The situation of late-filed medical evidence in a "person with a disability" (PWD) ODSP eligibility appeal is often the basis for an adjournment (see "Evidence and Submissions Disclosure", below). HOWEVER be aware that the Tribunal is specifically prohibited from allowing an adjournment to "obtain" (ie. go out and get or generate more) medical evidence [Reg 64(3)]. In such cases other reasons for adjournment must be considered.

  • Prior Adjournments

    Have there been prior adjournments? - in which case further adjournments are less likely. Were any prior adjournments "preemptory" (ie. "last time"), in which case the present Tribunal member can still grant another adjournment - but is much less likely to do so.

  • Recent Retention of Counsel/Legal Aid

    If counsel has recently been retained this tends to favour adjournment - to give counsel time to prepare the case properly. The absence or recent obtaining of legal aid operates in the same fashion. It is important that this indulgence not become a crutch for counsel unprepared through tardiness or disorganization.

    I note that the Tribunal's Practice Direction states that a counsel's date conflict is insufficient reason for an adjournment, and that counsel by undertaking a case already scheduled "must ensure that he or she is available to attend on that date". This policy - while otherwise reasonable - can operate as a manifest unfairness when the client only approaches counsel mere days before a hearing. In any event, my practice in any case of short notice (assuming the client cannot locate other counsel able to proceed, which is rare on short notice) is to send the "prospective" client to the hearing with my letter expressing a willingness to act for them IF the matter is re-scheduled, and assuming full legal aid coverage legal aid is forthcoming. I cannot recall ever having such a request refused by the Tribunal.

  • Interim Assistance

    Is the appellant "in-pay" of interim assistance (which would likely be extended by an adjournment, costing the Director more money in what they already think is a losing case)? What assurances can an appellant give to reduce this risk (eg. agreeing to quick re-scheduling)?

  • Illness

    If time allows the situations of illness, provide evidence in the form of a doctor's letter. On one occasion I was able to obtain an adjournment by presenting my client's hospital ID bracelet with that day's date on it. Otherwise you might bring the person who drove to the hospital - use common sense and do the best you can.

  • Case Not Prepared or Evidence/Witness Not Available

    Some indulgence can normally be expected here, particularly if the party is unrepresented. Unfriendly or unreliable witnesses however should summonsed beforehand to be prudent [see sub-section (m) "Evidence", below]. Parties requesting adjournments on such a basis should show a clear plan to resolve the problem and be prepared to agree to a short adjournment only.

  • Non-Receipt of Administrator's Written Submission

    As discussed below, it is usual practice for the Director to file written legal and evidentiary submissions before the hearing, serving them on the other parties. They may then attend in person or not. Where such written submissions are filed - but not served - then the appellant is on solid grounds to ask for an adjournment [Act s.23(9)]. However advocates (who know they should be getting written submissions) are ill-advised just to sit back and rely on accident or mistake of the Director in this regard and should be prepared to show a record of communicating with the Director requesting the missing submissions beforehand.(see "Written Submissions", below).

  • Frequency of Sittings

    As the Tribunal sits irregularly outside of large urban centres, the frequency of such sittings is a prime factor for all concerned. It may be many months before they are "back in town". Parties should inquire of the Tribunal head office as to this and factor it into any decisions regarding adjournments.
. Urgent Adjournments

The Tribunal in its Practice Direction states that it may not be able to respond administratively to adjournment requests made less than 10 days before the hearing. While in these cases a letter regarding the adjournment request should certainty still be filed (and served on other parties), parties should be prepared best they can to proceed with the full case on the scheduled date - while arguing the adjournment as a preliminary motion.

Adjournment requests made late or even at the date of hearing (for the first time) should only be based on exigent and unforeseeable circumstances such as the unavoidable unavailability of a witness or party, incarceration, illness, absence of translator, very late retention of counsel, or other emergencies.

(m) Evidence

. Overview

Not surprisingly, the "onus" or "burden" of proving a case on appeal is on the appellant [Act s.23(10)]. This is consistent with widespread civil legal practice, and was plainly confirmed by the Court of Appeal in Nassar v Ontario (COMSOC) [2001] OJ #1814 (Ont CA).

The topic of evidence before any administrative tribunal is quite broad and draws heavily on the conventional law of civil evidence used in the courts. Thankfully evidence law as it relates to the Social Benefits Tribunal tracks very closely to the standard evidence practices of all tribunals governed by the Statutory Powers Procedures Act (SPPA) [OW Reg s.67(2)]. This topic is discussed at length in the SPPA program, as linked here:

Administrative Law (Ontario)(SPPA): Ch.6: Evidence

Otherwise, the few specific evidence provisions that apply to ODSP appeals before the Social Benefits Tribunal are discussed immediately below.

Specific disclosure and pre-filing requirements are dealt with below: s.1(n) "Evidence and Submissions Disclosure".

. Summons Practice

As noted above, a summons is effectively a Tribunal "order" compelling a person to attend at a hearing as a witness, with any specified documentation.

It is the practice of the Tribunal to pre-approve all summons issuances. Parties should forward a letter to the CSR as soon as the need for the summons is known, with an explanation of the need for it.

Where evidence would normally be admitted from a witness by way of a written report (as with medical doctors or other experts) then the unsuccessful efforts to obtain the evidence in written form should be described to show best efforts. Do not be afraid to summons an unco-operative doctor.

Note that it is the responsibility of the party who requests the summons to serve it on the witness, provide them with the necessary attendence fee and travel allowance (ie. money), and prepare and file an affidavit of service.

. Witness Financial Assistance

In addition to attendence fee and travel allowance paid by a party if a witness is summonsed (see "SPPA: Evidence: Witnesses" at the above link), the Tribunal may financially assist witnesses in "financial hardship" with "travelling and living expenses necessary to enable his or her attendance at the hearing" [OW Act s.66(5)].

Bring such requests to the attention of the Tribunal in writing as soon as the need for them is known, and in any event well before the hearing.

. General Evidence Case Law

In Dowlut v Ontario [1985] OJ #1103 (Div Ct) the court allowed an appellant's appeal in a spouse-in-the-house case where the tribunal found against submitted affidavit evidence without any basis:
Second, the affidavits of the friends and neighbours were virtually swept aside as being not objective. This, in my opinion, is not justifiable. That evidence is prima facie true because the deponents were put to their oath. The Board did not see those witnesses and I find it difficult to understand how they could reject them as a class. The appellant has to prove a negative and it can be expected that she will have difficulty in finding witnesses who will be willing to come forward in person. It can be expected that those that do support her may be viewed as slanting their evidence in her favour but that does not render the evidence unacceptable nor was this evidence attacked in this case by the representative of the Commissioner except by way of argument.
In Massey v Ontario (Director, FBA) [1982] OJ #1387 (Div Ct) the court allowed a recipient's appeal on natural justice grounds where - in the course of the appeal hearing - the appellant had relied on the presiding member's comment to the effect that there was 'no need to call witnesses', in not calling such witnesses.

(n) Evidence and Submissions Disclosure

. Overview

Like most court litigation today, much of the evidence used in a SBT hearing will be in document form. In addition, it is the practice of Directors to file their legal submissions (argument) in writing - often as an alternative to attending in person [Act s.23(7)] (although sometimes they do both). Typically - documentary evidence and written submissions of the Director are combined in one package (the "Director's Submissions"), with the evidence being appended as "exhibits".

It is the right of any party to "examine" (invariably, receive a copy of) - before the hearing - any documentary evidence or written submissions which another party intends to submit at a hearing [Act 23(8)(9)]. In Re Cardinal and COMSOC (Director, FBA) 32 O.R. (2d) 65 (1981) the Divisional Court allowed an appeal, finding that it was inappropriate for a tribunal (there the previous Social Assistance Review Board) to consider evidence that had not been provided to the appellant. Where documentary evidence arises late and the Director (as is common) does not appear at the hearing, the Tribunal is usually inclined to adjourn the matter so that the evidence can be delivered to and considered by the Director.

. Paper Hearings

As noted above regarding "Notices of Hearing", a Notice of Hearing for a written hearing shall state the "dates by which the parties are required to provide their written submissions and documentary evidence to the Tribunal" [Reg s.63(2)(b)].

As such the specific timelines for service and filing for a written hearing will be set out in that Notice. For general procedures for "Paper Hearings", see that topic below at s.2(c).

. Oral Hearings

The vast majority of SBT cases are heard by way of oral, sit-down hearings. At oral hearings ANY party intending to submit documentary evidence or written submissions must serve copies of it on the other parties - AND file copies of it with the Tribunal:
  • if an appellant, 20 days before the hearing [Reg s.65(2)(a)], and

  • if an Director or any other party, 10 days before the hearing [Reg s.65(2)(b)].
Note that there are special rules (discussed below under "Additional Medical Evidence in PWD Appeals") for filing and serving additional medical evidence in ODSP "person with a disability" medical eligibility appeals.

These timelines can be varied by the consent of the parties.

If such documentary evidence and/or written submissions are submitted late and the other parties do not agree to its late admission, then the Tribunal may either: accept the evidence, refuse to admit the evidence or submissions, or grant an adjournment (to allow it to be properly served) [Reg s.65(3)].
Note:
There is a another rule [Reg s.62(2)] that any Director's written submissions must be filed with the Tribunal within 30 days after the Director is served with the Notice of Appeal (by the Tribunal). However lateness of submissions under this rule is so chronic that it is now rarely enforced. Practically the other specific timelines set out above govern this situation.
. Additional Medical Evidence in PWD Appeals

In ODSP medical eligibility appeals, where the appellant is trying to prove that they are a "person with a disability" ("PWD"), it is common for the appellant to obtain additional medical evidence that was not filed with the original application. Such evidence is discussed extensively in Ch.9: "Person with a Disability".

While such evidence should be provided to the Disability Adjudication Unit (DAU) promptly upon being received - so that they might reconsider their decision in light of it - any such evidence filed (with the Tribunal) and served (on the DAU) at least 30 days before a scheduled hearing (of whatever form) shall be admitted and considered by the Tribunal [Reg s.64(1)] if it is relevant to a condition that the appellant had at the effective date of the original Director's refusal decision. This is the 'target date' discussed in Ch.9, s.2(c), which is invariably the date that the medical portion of the ODSP application (HSR/ADL Report) is completed by service on the DAU.
Case Note:
This obvious point [regarding Reg 64(1)[ was affirmed by the courts in both Omar v. Ontario (Disability Support Program) (Div Ct, 2007) and later in Jemiolo v. Ontario Disability Support Program (Div Ct, 2009). In Omar the court clarified that Reg 64(1) did not conflict with Reg 47(7), which requires the DAU to "(r)eview new evidence relating to a person’s status as a person with a disability before the information is received by the Tribunal on an appeal."
Appellants doing this should also be aware of the mail delay rule (generally mail is deemed received the third day following the date of mailing: Act s.50).

. If You Are Late

As noted above, where late evidence arises in oral hearings the Tribunal has discretion to admit, refuse to admit, or adjourn a hearing (to allow for proper service) [Reg s.65(3)]. While the rule technically only applies to oral hearings, it is likely to be applied in paper and telephone hearings as well.

When the situation of late evidence arises, the best route is to communicate the problem to the Tribunal and the other parties as soon as it is known. When the evidence arrives, serve and file it IMMEDIATELY - even if it is late - and seek the other parties' consent to its late admission into use.

The Tribunal's main concern with late-served evidence or submissions is that the other party has had a chance to review and - if they want - respond to the evidence [Act s.23(8)(9)]. If honest and prompt efforts have been made in this regard, Tribunal members tend to be sympathetic.

HOWEVER be aware that (as noted above under "Adjournments") - in the case of medical evidence - this rule applies ONLY to that medical evidence which is ALREADY OBTAINED. The Tribunal is specifically prohibited from allowing an adjournment to "obtain" (ie. go out and get more) medical evidence:
s.64(3)
The Tribunal shall not adjourn a hearing date in order to permit an appellant to obtain further reports described in paragraph 5 of subsection 14 (2).
. Disclosure-Related Case Law

In Domitraschuk v Ontario (COMSOC) [1983] OJ #1192 (Div Ct) the court refused to reverse a Board ruling where there had been a failure to disclose documents, where the failure did not result in any prejudice to the appellant.

In Re Ellis and COMSOC 28 OR (2d) 385 (Div Ct) when the Director's submissions only came to the attention of the appellant at the date of hearing, and raised previously undisclosed issue, proceeding with the hearing was reversible error as it denied the appellant the right to call evidence and make submissions on the issue.

(o) Summary Dismissals

. Overview

Most legal adjudication processes, such as civil court trials, have evolved procedures to deal with situations where a full hearing is unwarranted. These situations can include those where a party is in "default" (ie. has failed to participate in the process or to respond to initiating documentation), where available legal procedures are being abused ("abuse of process"; "frivolous and vexatious litigants"), where the tribunal lacks jurisdiction to consider the matter - and others.

The Social Benefits Tribunal has three types of such jurisdiction (discussed in turn below), located in both the ODSP Act and the Statutory Powers Procedures Act (SPPA):
  • summary dismissal for non-participation (ODSP);

  • frivolous and vexatious refusal to proceed (ODSP);

  • general jurisdiction to make procedural orders (SPPA)
. Summary Dismissal for Non-Participation (ODSP)

In some circumstances, the Tribunal MUST summarily dismiss an appeal [Act s.29]. Of course, by its very nature, this authority can only operate against applicants/recipients since only they file appeals. These circumstances include:
  • Non-Filing of "Information"

    Where a party, without reasonable cause, fails to "file the information required for the appeal within the required time" then the appeal shall be denied [Act s.29(1)(a).

    This provision has the potential to be quite harsh, but for that purpose is surprisingly vague. There are already more specific pre-filing requirements for "written submissions" and "documentary evidence" (see "Evidence and Submissions Disclosure", immediately above), that have their own regime of sanctions for lateness (ie. accept or refuse materials, adjourn) [Reg s.65(3)]. These more specific provisions would - by virtue of basic rules of statutory interpretation - be applied in priority to the above s.29 rule.

    However it is also a rule of statutory interpretation that all legislative provisions should be given some meaning, and s.29 is part of the Act - not just the Regulation - after all. It remains unclear to me what this meaning might be.

  • Non-Attendence (Oral Hearing) or Non-Participation (Electronic Hearing)

    Where the appellant, in an oral hearing, fails to attend without reasonable cause at the appointed time and place then the appeal shall be denied [Act s.29(1)(b). Similarly, where the appellant, in an electronic hearing, fails to be available to bep contacted without reasonable cause then the appeal shall be denied [Act s.29(1)(c).

    In situations such as this the appellant should do all in their power to communicate to the Tribunal any anticipated lateness, absence, unavailability, etc AS SOON AS POSSIBLE from the problem arising. Such things as a faxed note (ideally with evidence - eg. a doctor's note), telephone calls to the CSR or even attendence by a friend or family member should be attempted.

    Appeals dismissed for this reason might be reinstated by way of a reconsideration request if good evidence of the reason for the problem later becomes available. The Tribunal tends to be quite forgiving in such circumstances.
Any summary dismissal for non-participation as above (ie. under Act s.29) bars any further appeal on any subsequent Director decisions on the same issue for two years from the original decision [Act s.29(2); Reg s.69]. In keeping with the mandatory sympathetic interpretation of ODSP legislation (Rizzo), it is likely that this rule would be narrowly applied - that is, only to subsequent decisions grounded entirely on the same original facts. Any new or varied facts should avoid this provision and allow appeal in the normal course.

. Refusal to Proceed Where Appeal "Frivolous and Vexatious" (ODSP)

The Tribunal MUST, as a preliminary matter either before or at the hearing date, refuse to hear an appeal that it deems to be "frivolous or vexatious" [OW Act s.28]. Further, when this power is exercised there is no duty of the Tribunal to otherwise process the appeal, issue reasons for the decision - and neither is a reconsideration request (see below) available after such a refusal [OW Reg s.62(4)].

This is a broad and ill-defined power that is - and should be - rarely used. Specialized legal advice must be sought if this happens to you.

COMMENT

For an appeal to be 'frivolous and vexatious', it is likely that a malicious or mischievious intent must be shown. However care must be taken - particularly with the high proportion of mentally ill persons on social assistance - not to misconstrue the symptoms of illness as evidence of such malice. Schizophrenics in particular are prone to making wide conspiratorial allegations that often contain nuggets of truth buried within them. In such cases preliminary dismissal of a proceeding before full exploration of the issue is a patent injustice. Indeed, in such PWD cases the appellant's delusions and hallucinations are often the most material and compelling evidence of substantial impairments.

That is not to say that frivolity and malice cannot be present coincident with mental illness, but natural justice would seem to demand - in all but the most plain cases of triviality (even 'theatre') - that an oral voir dire (preliminary hearing) on this issue be held by a presiding member.

I note further that the Tribunal has specific rule-making authority under the Statutory Powers Procedures Act (SPPA) to create "frivolous and vexatious" summary dismissal jurisdiction for itself (see the SPPA program: "Tribunal Rule-Making Authority: Summary Dismissal for Cause"). Exercise of this SPPA jurisdiction involves attendent procedural protections (ie. notice, oppourtunity for response, etc) [SPPA s.4.6]. It is an open question as to whether any exercise of the Tribunal's "frivolous and vexatious" jurisdiction requires compliance with these procedures. Even if this is not the case, any such jurisdiction must be exercised in accordance with the principles of natural justice, and the general provisions of the SPPA (see SPPA program "General SPPA Rules").

. General Jurisdiction to Make Procedural Orders (SPPA)

I have just referred to the Tribunal's right to 'give itself' summary dismissal jurisdiction when it makes rules under SPPA s.4.6 (above). However absent such rules the SPPA does not provide for any general summary dismissal jurisdiction in the tribunals which it governs.

That said, the SPPA does grant general authority to Tribunals to "make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes" [SPPA s.23(1)] (see SPPA program: "General SPPA Rules: Sumary Proceedings"). This power is designed more for nuisance or bad faith behaviour situations than for situations which legitimately require something less than the full hearing procedure.

A further broad authority exists for SPPA-governed tribunals to make "orders with respect to the procedures and practices that apply in any particular proceeding" [SPPA s.25.0.1]. It is in this section that any general summary procedure authority for SPPA-tribunals could be more comfortably located.

Both of these sources of jurisdiction are broad in their remedial authority and will likely be interpreted broadly by a reviewing court, provided that the tribunal has exercised them in a considerate and restrained manner. In a proper case they could be used to dismiss or abbreviate a proceeding.

(p) Withdrawals

. Overview

It sometimes happens, for a variety of reasons, that the appellant wishes to withdraw or cancel their appeal. This can be done easily by sending a signed letter to that effect to the client service representative (CSR) at the SBT. A copy can be sent to the other parties but the Tribunal will notify them in writing in any event, and confirm the withdrawal to the appellant in writing.

. Interim Assistance

CAUTION. For purposes of interim income support, the legal effect of a withdrawal is the same as the issuance of a final order of the Tribunal DENYING the appeal [Reg s.67(4)]. Therefore (unless the withdrawal is due to the Director "giving in") any interim income support that has been paid pending the appeal will now be repayable as a debt either by way of overpayment deduction or otherwise [Act s.27] (see Ch.11, s.3: "Director Decisions: Overpayment Decisions").

. Withdrawal on Settlement

Even if an appellant is withdrawing an appeal as a result of a reversal of the Director's decision (ie. they "gave in"), it is very risky to rely on a worker's verbal assurances (ie. an appellant could 'surrender' their appeal rights without protection). Care should be taken to ensure that:
  • the Director's reversal should be obtained IN WRITING (they are usually slow to do this, so keeping the appeal alive keeps their 'feet to the fire'); and

  • ALL issues subject of appeal are satisfactorily addressed in the Director's writing.
Note that the Director, in such a case will typically only want to rely on its computer-generated notices to declare the status of the applicant/recipient. It has always been my practice to set out the terms of the settlement in a letter to the Director, and to await written confirmation of agreement before withdrawing any proceedings.

In similar circumstances (no written acknowledgement of settlement) I have seen adminstrators unilaterally write the Tribunal advising that the 'matter has been settled' - and would they please "withdraw" the appellant's appeal? Such behaviour is unacceptable and should be guarded against by prompt written complaint to the Tribunal. The Tribunal will not knowingly withdraw an appeal without written direction to do so from the APPELLANT.

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