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2. Appeal Hearings

(a) Overview

Most SBT hearings are heard "orally", ie. in a sit-down, quasi-court like fashion. All parties can: attend, call evidence, cross-examine and make legal submissions. The adjudicator presides, controlling proceedings - and asking questions as well (which judges generally don't do). The one major exception to usual tribunal procedure is that the hearing is private, held in a closed room.

Paper (written document-only) hearings are used occasionally and only with the consent of the parties - typically when only legal issues are involved and the evidence is uncontentious. The practice in paper hearings is straightforward, consisting of dates by which documentation from the parties must be exchanged and filed.

In October 2005, "electronic" (ie. telephone) hearings have started being used pursuant to new Tribunal Rules made under the Statutory Powers Procedures Act [SPPA s.5.2]. This form of hearing can be imposed despite the objections of the parties, and in my view have great potential to degrade natural justice - not to mention greatly demoralize appellants who will feel slighted by such casual treatment. Appellants will accurately see rich corporations monopolize courtrooms and judges for months and years (at huge public expense) in battles trying to make themselves richer, while the lowly ODSP claimant doesn't even get the dignity of a brief face-to-face hearing to decide whether they should be consigned to street penniless or not.
Case Note: Neil Brown v OW/OSBT (Div Ct, 2015)

In this case the Divisional Court dismissed an appeal grounded on the argument that denial of an in-person hearing was itself a breach of procedural fairness. It held that since the appellant had the right to call evidence, and cross-examine the other side's witness, that no prejudice to the appellant existed.
That said, practice in telephone hearings is almost identical to that in oral hearings - albeit far more cumbersome and awkward. Readers anticipating a telephone hearing should thoroughly review the discussion of oral hearings below as well as that for telephone hearings.

The law regarding some specific Tribunal issues (ie. panels, sittings, member appointments, and basic adjudication principles such as independence and absence of bias) is dealt with above [see s.1(c): "The Social Benefits Tribunal".]

The consequences of non-attendence and/or non-participation (in the different forms of hearing) by appellants and any parties are also discussed below.

General hearing rules under the Statutory Powers Procedures Act (SPPA) are linked here, and contain a further link to the Small Claims Court program which covers the fundamentals of hearing presentation.

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

(b) Oral Hearings

. Overview

In both oral and telephone hearings the Tribunal will typically allocate 1.5 hours to a matter. Individual Tribunal members tend to be flexible in extending this if required but are often under time stress themselves, hearing as many as four - sometimes five - matters in one day, three days a week.

Starting in January of 2006 hearings are now all scheduled either in a morning (9am) or afternoon (1pm) timeslots, with Tribunals members hearing the cases which are prepared to proceed first. Parties wanting adjournments, missing witnesses or translators, or other preliminary issues dealt with first will be dealt with after these cases. This is the reverse of normal court procedure and may be based on some theory of 'punishment'. It has the potential to greatly waste legal aid and clinic resources which are already overburdened.

The Tribunal has not traditionally sat on Monday or Fridays, the idea being to leave time to write rulings. This practice is not fixed however and matters can be scheduled on these days if the Tribunal wants. ALL hearings are closed to the public [OW Act s.66(1)], although if all parties consent individuals are allowed in to observe, train, etc.

Practical issues such as handicap accomodation, translator, security (if required, which should be sparingly) should all have been addressed by communication with the CSR (client service representative) well before the hearing date.

. Procedure

The Tribunal has in past actively encouraged informality in hearings so as to reduce nervousness amongst appellants, most of whom are inexperienced with legal procedures. Parties and counsel may dress in casual clothing.

That said, this is still a serious proceeding. Treat the Tribunal and other parties with respect. As a matter of protocol you should "speak" to the Tribunal member at all times except when you are examining witnesses. When a translator is involved, speak TO the witness - not the translator AND wait for the translation (tell your witness to do this too as many know some English/French and tend to answer in those languages before the translation occurs).

A hearing will commence with the Tribunal member introducing themselves, explaining that they are separate and independent from whoever made the decision being appealed from, and that all they know about the case is what they have seen in the file. The Tribunal should have no more or less documentation than the parties do.

Some Tribunal members will swear the witnesses with a simple non-religious oath, others simply skip it. Those wishing to take a religious oath should advise the Tribunal beforehand so that they may be prepared with any holy books or items required, or at least bring such items themselves.

In most cases preliminary comments are neither appropriate nor useful and advocates should not make them (everyone else there should know what they're doing). Infrequently, brief preliminary comments - and I mean 'brief' (2-3 sentences, IF any) - often help to focus attention on unusual key issues in evidence and law that are not evident from the documentation.

The appellant then presents their evidence in what is called 'examination inp chief' [Reg 65(1)], which is testimony directly from the appellant (if unrepresented) or questions from their advocate to the appellant. In either case 'examination in chief' is meant to present the appellant's relevant and material evidence as it bears on the issues in the appeal. Any documentation filed properly beforehand [see s.1(n): "Evidence and Submissions Disclosure"] will normally be accepted into evidence as a matter of course (though how much weight or credibility will be given to it is up to the Tribunal). As the onus of proof is on the appellant [Act s.23(10)] examination-in-chief is the key element of the case - it is the primary oppourtunity to "put in" all the party's evidence.

If no advocate is present the Tribunal may explain the process to the appellant to assist them in presenting their evidence - many Tribunal members will just start asking key questions themselves. How your Tribunal member deals with this will vary with their personalities, inclinations and the time pressure they are under.

The Tribunal is required to make a written record of evidence taken at an oral hearing [Reg s.65(4)]. The practice is to record testimony by the member hand-writing notes, though the law allows for other methods of recording from which a transcript can be produced.

After examination-in-chief the Tribunal will give the other parties (usually just the Director - IF they attend, which they often don't) a chance to ask questions of the appellant - this is called "cross-examination". Any new issues raised on cross-examination may be again explored and clarified by the appellant or their advocate in "re-examination" (properly used, re-examination is rare - resist the temptation to repeat earlier evidence). An appellant and/or advocate are expected to respect this sequence of questioning unless express permission is granted to vary from it. It is also considered very bad form to interrupt the other side's cross-examination without very strong provocation, which really must amount to non-trivial mis-behaviour on the part of the cross-examiner.

Typically the Tribunal members will have a few questions themselves, which they usually ask at the end of everyone else's questions - though some will interject at any time.

If there are other witnesses the procedure then repeats itself: examination in chief, cross-examination, re-examination - for all witnesses. It is standard practice for witnesses to wait outside the hearing room until called. The idea here is to ensure that the testimony of the witness is not just a repeating and confirming of the appellant's evidence, but is truly spontaneous and therefore more likely to be credible. This practice helps appellants as much as anyone because 'aided' testimony is usually granted very little weight. Similarly the testimony of the appellant's children will typically be accorded little weight since they are viewed as too close to and likely influenced by the parent/appellant - though sometimes it is necessary.

In the (unusual) case where the Director brings a witness or witnesses, they will be called after the appellant's witnesses have concluded their testimony, and the above stages repeat themselves for their witness/es. If these witnesses raise new and unanticipated issues the appellant can request permission to recall one of their own witnesses to address the new issues raised (this is called "rebuttal"). Where an unanticipated issue is very important the appellant in such a case could request an adjournment to investigate the new issue or seek out a rebuttal witness. Such surprises as that are unusual as all material issues are usually disclosed in the Director's (written) Submissions.

Once the "evidence case" is concluded, the parties will be invited to make legal submissions which summarize how the evidence fits into any relevant legal principles, and addresses any weaknesses in the case. Tribunal members are not stupid so there is no point in stating the obvious to them or reciting in depth well-known statutory provisions. Make your case and then stop talking.

The other parties will have a similar oppourtunity - avoid any temptation to turn this part of the hearing into an argument WITH the other side.

(c) Paper Hearings

The Tribunal may hold a paper hearing if it so decides (at its discretion), and must hold one if so requested by all the parties [OW Act s.65(2); OW Reg s.83]. Paper hearings are not usual, and are only suitable when no evidentiary facts are at issue, leaving only legal argument.

As noted above regarding "Notices of Hearing" the timelines for exchange and filing of documents will be set out in the Notice of Hearing [Reg s.63(2)].
Note:
The SPPA sets out sketchy terms under which a Tribunal may establish procedures for paper hearings [SPPA s.5.1] and thus gain the jurisdiction to hold them. However these have not yet been used by the SBT - and are redundant in light of the (limited and above-cited) provisions established in the Ontario Works Act (which apply also for ODSP appeals) for just this purpose.
Obviously, participation in a paper hearing emphasizes written advocacy skills. It is beyond the scope of this program to explore these at present, except for a few thoughts:
  • stress organization, brevity and clarity of thought;

  • know that Tribunal members are experienced at detecting fabrications and exaggerations, and you only hurt your case by engaging in them;

  • argue the strengths of your case - and if they are insufficient to present a convincing case (if accepted) - then you probably shouldn't have appealed in the first place.
(d) Electronic (Telephone) Hearings

. Overview

The ODSP Act only peripherally anticipates the holding of electronic hearings [Act s.29(1)(c)]. The Tribunal's full jurisdiction to hold them is located within the Rule-making authority set out in the Statutory Powers Procedures Act [SPPA s.5.2]. These provisions are discussed in the SPPA Program at the following link:

Administrative Law (Ontario)(SPPA): Ch.11: Written and Electronic Hearings
These SPPA provisions "give" a Tribunal authority to hold electronic hearings IF the Tribunal itself makes rules - consistent with the terms of the SPPA - to do so. On 01 October 2005 the Tribunal made such rules and thus took on jurisdiction to hold telephone hearings.

Practice Direction 3: Rules for Electronic Hearings

There are some discrepancies between Tribunal Practice Direction regarding telephone hearings and the procedures mandated by the SPPA. These are critically address below.

. SPPA Procedural Requirements

Any Tribunal-made rules exercising the SPPA electronic hearing authority must be consistent with certain basic procedural requirements, these being [SPPA s.5.2(1), 25.1]:
  • the tribunal must decline to hold an electronic hearing "if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice" [SPPA s.5.2(2)]. (The basis for such an exception is not made any more specific than this, but logically might include unavailability of adequate telephone services by a party, impaired hearing and/or speech, anxiety of an unrepresented party with such a procedure, and the need for in-person credibility findings and cross-examination.)

  • where the issue is procedural alone, a party is not entitled to try to avoid the electronic hearing [SPPA s.5.2(3)].

  • all the parties and the members of the tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing [SPPA s.5.2(4)].
Further, a Notice of Hearing for an electronic hearing must include [SPPA s.6(5)]:
  • Purpose

    The time and purpose of the hearing, and details about the manner in which the hearing will be held;

  • If Procedural Matters Only

    If it is the case, a statement that the only purpose of the hearing is to deal with procedural matters;

  • Caution re Right to Object

    Unless the electronic hearing deals with procedural matters only, a statement that an electronic hearing may be avoided if a party satisfies the tribunal that "holding the hearing as an electronic hearing is likely to cause the party significant prejudice, require the tribunal to hold the hearing as an oral hearing, and an indication of the procedure to be followed for that purpose";

  • Caution re Non-Participation

    A statement that if the party notified does not participate in the hearing in accordance with the Notice - nor move to avoid an electronic hearing (as above) - then the tribunal may proceed without the party's participation and the defaulting party will not be entitled to any further notice in the proceeding [SPPA s.6(5)].
I have reviewed a copy of a January 2006 "Notice of Telephone Hearing" received by counsel for an appellant in a regular ODSP eligibility hearing (where credibility is a key issue). The Notice fails to meet the "Caution re Right to Object" requirements as set out above, failing to state the basis upon which an objection may be granted (ie. "likely to cause the party significant prejudice"). The Notice reads only: "(i)f you object to a telephone hearing you must contact your [CSR] ...".

That said, the experience in this one case of counsel was that her "Objection" was granted on simple request - without reasons - and an oral hearing Notice was sent out shortly after the "objection" was registered. While this is comforting in cases where counsel are present to advise the client of the inadequacies of a telephone hearing, it does nothing for the thousands of unrepresented participants who do not realize the implications of the "objection" right nor the problems with the telephone process.

. The "Practice Direction"

Contrary to the one instance noted above of a deficient Notice of Telephone Hearing, the "Practice Direction: Rules for Electronic Hearings", (linked above to the Tribunal's website), is essentially consistent with the SPPA requirements. Some comments however follow.

These Rules cite the utility of telephone hearings "when a party is physically unable to travel, lives in an area where the Tribunal does not frequently hold hearings, or where transportation is difficult." Fine - in that case give the appellant the choice of oral or telephone hearing - which is NOT the case now. Is it then the convenience of the Tribunal or the parties that is being considered? If it is the convenience of the Tribunal then handicapped persons and those in rural areas can rightly complain that their rights to natural justice are being improperly compromised. Plainly a burden rests on the Tribunal to accomodate handicap in a manner that does not provide "second-class" justice, and as well to sit regularly in non-urban areas.

The "Practice Direction" does provide some insight into factors that the Tribunal will address in deciding on a telephone hearing. These include:
  • whether witness testimony and credibility are an issue;

  • the number of parties, counsel and witnesses;

  • the need to expedite some categories of appeals;

  • anticipated duration of the hearing;

  • the "cost and efficiency of conducting an electronic hearing";

  • any "special circumstances, such as the unavailability of an interpreter".
As is made plain in "COMMENT Re Telephone and Paper Hearings" [s.2(f) below], in my mind the overwhelming concern with telephone hearings is the issue of witness (particularly appellant) testimony and the essential need in almost all cases (especially ODSP medical eligibility hearings) to determine witness credibility.

The Practice Direction also sets out that any Objections must be filed within 15 days of the Notice of Telephone Hearing, must be in writing and contain "detailed reasons". That said, it also provides that unrepresented appellants may object by telephone call to the CSR, and that the presiding member/s at the hearing itself may reconsider any Objection earlier made and refused.

These considerations - while allowing individual presiding Tribunal members to ameliorate the potential for prejudice contained in uncritical use of the telephone hearing process - may in fact result in further wastage of member's time when the practical inadequacies of the telephone process become apparent and oral hearings are re-scheduled en masse. [You heard it here first].

. Control of Proceedings (Electronic Hearings)

Tribunals may make such orders and give such directions at an electronic hearing as it considers necessary "for the maintenance of order at the hearing" [SPPA s.9(2)].

On failure to obey or comply with such orders or directions by any person (thus including both parties, witnesses and counsel), the tribunal may call "for the assistance of any peace officer to enforce the order or direction, and every peace officer so called upon shall take such action as is necessary to enforce the order or direction and may use such force as is reasonably required for that purpose" [SPPA s.9(2)]. It is hard to imagine how such powers might be useful in a telephone hearing to compel compliance, but they do exist.

(e) Non-Participation in Hearings

The SPPA sets out that when PARTIES fail to attend or participate in a hearing after proper notice (regardless of its form) [SPPA s.7] then the tribunal "may proceed without the party's participation and the party is not entitled to any further notice in the proceeding."

Similar provisions in the OW Act address the situation where an APPELLANT fails - without reasonable cause - to attend or "to be available to be contacted for the purpose of a hearing" (when telephone hearing) [Act s.29(1)(c)]. In such a case the Act provides that the appeal must be denied.

Note:
Where a party has missed a hearing for good reason, they should consider requesting a "reconsideration" [see "Reconsiderations: s.3(c): "Criteria for Granting a New Hearing", below].

Note the emphasis (capital letters) above respecting these two similar provisions. Of course, "appellants" are "parties". Thus (while these two provisions can be read together consistently for the most part) where the non-participation is by the appellant - and is without reasonable cause - conflict arises. Under conventional statutory interpretation arguments the s.29 ODSP mandatory dismissal would apply - it being the more specific provision. However, SPPA s.32 would appear to make SPPA s.7(3) dominant in the event of conflict, as it is not "expressly provided" in the OW Act that "it appl[ies] despite anything in [the SPPA]". Further, lenient statutory interpretation principles applicable to "benefits-conferring" legislation Rizzo v Rizzo Shoes [1998] 1 SCR 27 would appear to favour the less drastic result.

As such, it appears that the better legal argument is that there is no automatic dismissal on non-attendence or non-participation by an appellant - in ANY form of hearing. I note this is contrary to Tribunal practice, which is to automatically and summarily dismissed appeals where the appellant does not attend and no reasonable cause is shown for the absence.

Balancing this is the evidentiary principle that failure to adduce available evidence can be applied as a negative presumption against the appellant. However, as it is the Director's standard practice to file it's submissions and evidence in written (usually in blatantly hearsay and double-hearsay) form - and as the appellant may have filed documentary evidence as well, it would appear to be only fair to the appellant for the Tribunal to undertake a full review of the documentary evidence and to issue a Decision.

In sum, where an appellant fails to attend, I suggest it is incumbent on the Tribunal member to review the appellant's documentary evidence to see if it meets the appellant's burden in the case - and that current practice is legally in error.

(f) COMMENT Re Telephone and Paper Hearings

In my mind the use of written or telephone hearings in any administrative proceedings where a party has a need to call testimonial evidence is a serious degradation of natural justice.

While the Practice Direction notes that ONE of the considerations that the Tribunal should weigh when deciding to hold an electronic hearing is the need to decide issues of credibility, anyone with a passing familiarity with litigation knows that the PRIMARY purpose of having an oral hearing is to assess and weigh credibility of the parties. As almost all ODSP appeal cases involve credibility issues (ie. over medical impact, income, assets, living circumstances, etc), pretending that this integral aspect of litigation can somehow be dispensed with or short-changed shows a shocking disrespect for their rights. What is at stake for these people is the difference between: housing and the street, mental health and intolerable stress, security and fear. To short-change their rights to full natural justice is a choice that is both callous and discriminatory.

Further, there seems to be no particular efficiency benefit to the Tribunal in non-oral hearings as it is the parties and witnesses who must travel to the tribunal member for the local hearing venue, not the other way around. The proposition - if advanced - that it is a burden upon members to travel from urban centres such as Toronto in the course of their duties would reflect an arrogance that can only bring the administration of justice into disrepute.

In my view, the only proper use of electronic hearings for substantive matters is where physical (ie. incarceration) or medical or safety circumstances demand it, such as with Criminal Injuries Compensation Board hearings (see that program generally) - or where the appellant exercises a truly informed consent, with advice of counsel. As to written hearings, they are suitable where only legal or procedural issues are at play - a practice that represented parties have been quite happily arranging amongst themselves for years.

It is my fervent hope that individual Tribunal members, familiar with the realities of the appellant "clientele" that regularly appear before the Tribunal - and the cumbersome and awkwardness of juggling multiple parties, translators and documents over the telephone - will militate against any widespread use of telephone hearings as a tool in any misguided "efficiency' campaign.

(g) Tribunal Decisions

. Overview

This sub-section deals with the contents and details required of written appeal Decisions of the Tribunal. This section should be read closely with [s.1(g): "Appeal Process: Jurisdiction", above] dealing with the key issue of the remedial and subject-matter jurisdiction of the Tribunal.

The general subject of Tribunal "Orders" is dealt with in the Statutory Powers Procedures Act and is discussed in that program as linked here: Administrative Law (Ontario)(SPPA): Ch.7: Orders

Note in particular from that link that the Tribunal has no jurisdiction to order "legal costs" to a party or their counsel.

A Decision of the Tribunal on an appeal must [Reg s.67]:
  • include reasons [Act s.26(2)];

  • be in writing;

  • be delivered within 60 days after the last evidence or submissions are taken in the appeal;

  • include "the principal findings of fact and its conclusions based on those findings".
. Reasons and Fact-Findings

While most Tribunal members resist it, there is a great temptation - in light of the high caseload they bear - for members to fall into the habit of "template" rulings which recite vague assurances that all evidence and legal concerns have been reviewed, weighed and considered - and then pump out a win/lose disposition of the case.

Significant litigation in the appeal courts has been devoted to the issue of how detailed and specific fact-findings and legal conclusions must be.

These issues - and cases - are discussed at length in Ch.11: "Director Decisions", especially in the casenote regarding the Gray v Ontario case. While located in the discussion of Director's (administrative) decisions, most of the case law discussed there relates to the detail required in Tribunal Decisions as well [the two 'reasons' duties being essentially identical: "reasons for its decision": Act 26(2), and Reg 56(2) "reasons for the decision"].

In Ontario (Director, ODSP) v Matthews [2000] OJ #5305 (Div Ct) the court dismissed the Director's appeal from a finding of disability by the SBT despite the Tribunal's failure to make express findings that the elements for the test for "person with a disability" were met (ie. "substantial impairments" and "substantial restrictions" in ADLs). The court commented that greater clarity and expression would be preferable but dismissed the appeal on the basis that the required fact-findings and legal conclusions were necessarily implicit in the Decision as a whole. This case is on the 'forgiving' end of the spectrum of the 'requirement for reasons and fact-findings' cases.
Case Note:
In the case of Ontario (Disability Support Program) v. Anwari (Div Ct, 2011), the court held that the SBT had not complied with it's duty to give "reasons for its decision" [Act 26(2)], and as a consequence (along with a second ground) allowed an appeal and sent the matter back for re-hearing:
[15] It would have been very helpful to the disposition of this appeal if the Tribunal had given more extensive reasons better explaining its analysis and conclusions, particularly in light of the fact that the respondent had not actually tried to function in any workplace. For example, it would have been of great value to us to learn something about the workplace that the Tribunal considered applicable to its analysis, about what would be required in that workplace and how the respondent’s impairments would substantially restrict her ability to function there.

[16] Moreover, if the Tribunal had found, as it might have, that the respondent had, or would have had, no or very limited ability to function in the workplace even in the absence of any of her impairments, it might well have decided that her impairments had no or little effect on her ability to function in the workplace.

[17] As it is, the reasons given by the Tribunal do not address these issues adequately and, therefore, do not meet the requirement of completeness required by the Act, the regulations made under the Act or the judgment of the Court of Appeal in Gray v. Ontario (Disability Support Program, Director, (2002) 2002 CanLII 7805 (ON CA), 59 O.R. (3d) 364.
. Late Tribunal Decisions

As noted above, the law requires that Tribunal Decisions be "delivered" within 60 days after evidence or submissions are last taken in a case [Reg s.67(1)].

It sometimes happens that individual Tribunal members miss this "deadline", leaving the appellant in a very awkward position. To complain about the lateness of the member - even to the point of threatening legal action (ie. judicial review, see below) is to risk offending the very person who is charged with adjudicating the complainant's matter - thus creating by that act itself a legal "conflict of interest" or "bias" in the member - normally a ground for their recusal (removal) from their decision-making role in the case.

A "conflict of interest" occurs here when a person in a position of adjudication has interests that conflict with those of a party (ie. being effectively 'sued' by the appellant) - thus tempting them to introduce improper considerations in their Decision. "Bias" in this case can occur in the same situation where the Tribunal member can reasonably be concluded to have an "attitudinal" dislike for the appellant who is making a complaint (or legal application). The legal test for actionable "bias" is lower than that for "conflict of interest", requiring only an "appearance of bias" in the mind of fair-minded objective observers.

Both bias and conflict of interest are standard reasons for a court removing the adjudicator from their position and re-assigning the case for hearing anew before a different Tribunal member. However, few appellants want that result as it would entail at least a year in the courts and further re-scheduling delay.

In an attempt to remedy this problem - and others - the Tribunal has established
a "Member Conduct Complaint Procedure", linked here:

SBT Member Conduct Complaint Procedure

Unfortunately, while in most cases the complaint is NOT to be brought to the attention of the specific member until a final decision is issued - cases of late release of Decision are exceptions. In such cases the Chair may make the specific member aware of the complaint as part of the remedial process, which can amount to little more than a directive to the offending member to 'issue the ruling already!' or giving them less other work to do to 'catch-up'.

Further, if any animosity from the "late" member does show itself in the final ruling, the complaining appellant may now be argued to have "waived" (by way of "estoppel") their right to object (on appeal) to a timely ruling by participating in the complaint process.

In my view the only fair solution to such situations is either for the Chair to view the missing of the 60-day timeline as "jurisdictional" - in which case the matter should be immediately re-scheduled for hearing before a new member OR to given the appellant the unilateral option of a new hearing before a new member at their choice once 60 days are up. The failure to robustly address this situation reflects a lack of leadership by the Chair in an issue which falls squarely in their lap. Any other solution other than the ones suggested above creates the unavoidable problem of bias and/or conflict of interest once the 60-day limit is passed and the appellant undertakes ANY action to address the situation, a problem that cannot itself be rectified without exacerbating the delay problem further and putting the appellant to significant trouble and expense (or legal aid's expense) in taking the matter to court on judicial review.

. Effective Date of Decision

Unsurprisingly, Tribunal Decisions are effective when issued [Act s.26(4)].

Stating this otherwise unremarkable fact has purpose when considered in the context of subsequent appeals to the Court (see "Court Appeals", below). It is the normal civil court rule that all "money orders" (which most SBT orders are) are "stayed" (ie. suspended) once an appeal is filed with the court [Rules of Civil Procedure, R63].

However, Tribunal Decisions are an exception to this rule, and "continue[] in effect until a decision of the Divisional Court is made on appeal." [Act s.26(4)]. The wording of s.26(4) [Act] leaves open the issue of whether the appellate court has jurisdiction to issue a discretionary stay, which they retain in most other civil cases. The ambiguity results from the phrasing "until a decision of the Divisional Court is made" - it being uncertain whether that passage refers to a "final decision" of the court or an "interlocutory one" (such as a stay would be). I am unaware of this issue ever have been litigated.

It also interesting to note that there is no "stay" of a Tribunal Decision when a reconsideration REQUEST (see below) has been granted and the parties are waiting for the matter to be re-heard. This can result in overpayments being incurred when an appellant's back-pay is processed, and the reconsideration hearing later reverses the original Tribunal Decision.


3. Reconsiderations

(a) Overview

When a negative Tribunal Decision is received and a party (appellant or Director) still wishes to pursue the matter, the next step (typically) is to request a "reconsideration" hearing.

The process of reconsideration effectively involves two steps:
  • the paper "Request for Reconsideration" in which parties file written submissions followed by a Tribunal decision as to whether to grant a new hearing or not, and

  • the new hearing itself IF one is granted. If not then prompt consideration of a court appeal should be undertaken.
The law does not specify upon what basis a reconsideration request must be made, but the Tribunal has recently moved to establish rules governing reconsiderations in an 01 March 2004 "Practice Direction". These new rules are made by the Tribunal under its rule-making authority under the Statutory Powers Procedures Act [SPPA s.21.2].

Administrative Law (Ontario)(SPPA): Ch. 17: Review of Order

For the most part, the Tribunal has restricted the application of reconsiderations to "final" Decisions of the Tribunal, though in the Practice Direction it says that it may reconsider interim procedural rulings "in exceptional circumstances". In no case however may an "interim income support" decision be reconsidered [see "Interim Assistance", s.1(i) above].

Subsequent Requests for Reconsideration (ie. AFTER a first one has been refused, or granted and heard) are extremely unusual and will be granted only if "failure to grant a subsequent reconsideration would result in serious procedural or substantive unfairness to a party" (quoting from the Practice Direction).

(b) Making a Request for Reconsideration

A "Request for Reconsideration" should be made in the specified form. If a party is unable to obtain the proper form, a written request in another form may be accepted. The proper form is linked here: Application for Reconsideration form

The "Request for Reconsideration" should be filed with the Tribunal within 30 days of receiving the Decision, and should also then be served BY THE PARTY REQUESTING THE RE-CONSIDERATION on all other parties to the appeal [Reg s.68(1)] (the Tribunal usually copies it to the other parties as well when they send out their schedule for the exchange of documents, but this practice should NOT be relied upon regarding service of the Request on the other parties).

Extensions of this timeline are available if the Tribunal feels that "there are apparent grounds for a reconsideration and that there are reasonable grounds for applying for the extension" [Reg s.68(2)]. Extensions - if required - should be specifically requested in writing with the Request, with reasons for the lateness being explained [for comparison, see the discussion in s.1(d) "Appeal Timelines and Extensions", above].

There is however an ultimate reconsideration request "deadline" of "one year after the decision" being challenged [Reg s.68(3)].

Once the Request for Reconsideration is received by the other parties, they have 15 days to send in their written submissions on the issue [Reg s.68(4)]. The Tribunal is then obliged to issue it's ruling on the Request anywhere between 20 and 60 days after the Request is made [Reg s.68(5)].

(c) Criteria for Granting a New Hearing

It is important to know that a reconsideration is not just a 'second chance' that should be tried in all cases of an appeal being denied. The Tribunal will tend heavily to refuse to grant reconsiderations when the original decision is grounded in fact-findings or findings of credibility by the original Tribunal member made at an oral hearing. Legal errors, on the other hand, are usually good grounds for a reconsideration request.

That said, where the first hearing is held by means of telephone hearing - against the objections of the appellant - the restriction on the ability of the Tribunal member to make any necessary credibility findings (which are generally viewed as requiring in-person observation) should be good grounds for a reconsideration request. Similarly, any other degradations of natural justice brought about by use of non-traditional hearing forms may also be argued as grounds for a reconsideration.

Note however that even if a mistake has been made in the original Decision, it must be significant, or "material". Minor mistakes that would not likely effect the outcome are a poor basis of a reconsideration request.

In any event, as per it's "Practice Direction", the following are factors regarding the original Decision that the Tribunal may consider when deciding to hold a new hearing:
  • lack of jurisdiction [see s.1(g) "Jurisdiction"], above);

  • violation of rules of natural justice or fairness (this means procedural fairness);

  • serious errors of law;

  • the availability of important fresh or newly-arising evidence, IF it "could not have been obtained by reasonable diligence for the original hearing";

  • "any other substantial ground relevant to the decision".
In my experience a common ground of reconsiderations being granted is when a party - through inadvertence or accident - has not received the Notice of Hearing and has subsequently missed the hearing. Non-attendence through illness of course normally justifies re-hearing as well. Generally on this topic see s.2(e) "Non-Participation in Hearings", above.

(d) Conduct of the New Hearing

Normally, when a "reconsideration" hearing is granted, it will be heard as a "hearing de novo" - that is, as a new hearing with no reference to the earlier hearing results, and subject to all the normal procedural rules for a new hearing - with a few exceptions (below).

It will typically be held in front of a different member from the one that made the original Decision. This is not a legislative requirement, but is considered fairer. Exceptions to this "rule" are:
  • when the original Decision was made in the absence of the party, in which case ANY member may hear the new hearing;

  • when the reconsideration issues are limited, in which case the original member may re-hear the new hearing.
The only other procedural variation is that when the reconsideration has been requested by a party other than the appellant (almost always the Director), then the order of filing documentary materials and evidence [see s.1(n) "Evidence and Submissions Disclosure" above], and the order of presentations of the parties case will be reversed [see s.2(b): "Appeal Hearings: Oral Hearings", above] [Reg s.68(6)]. For instance, if the reconsideration is requested by the Director and a new hearing is to be held, then the Director must provide their written submissions and evidence as though they were the appellant, and they present their evidence case first [contrary to Reg s.65(1)].

Note: The law does not expressly require that the new hearing will be held orally, but that seems to be a necessary implication from the wording of the 'order reversal' established under Reg s.68(6), which reverses the order of filing and presentation for ORAL hearings.

(e) Reconsiderations and Stays

A "stay" is a legal order to suspend another legal order. It is common practice in the civil courts that an order for the payment of money is "stayed" on the filing of an appeal from that order.

There is no Act or regulation provision governing the status of the original Tribunal Decision DURING the reconsideration process, however the ODSP Act provides that:
s.26(4)
A decision of the Tribunal takes effect when it is made and, if it is appealed, continues in effect until a decision of the Divisional Court is made on appeal.
As a result the Tribunal takes the position that the original Decision stands until such time as a new reconsideration hearing is scheduled, heard - and a new Decision is issued that is contrary to the original one.

This is a surprisingly awkward result, as one would think that the logical point for a stay to take effect would be when a reconsideration hearing is scheduled. As a practical matter however it only results in problems in the case of a Director's reconsideration requests of a successful original Decision for the appellant. In that case the Director will continue to process any payments resulting from the original decision - if and until - a reconsideration Decision reverses or varies that original result. In such cases the appellant could find themselves facing an overpayment assessment resulting from any now-processed payments to them.

This situation does not typically arise with appellant's reconsideration requests because the original ruling maintains the status quo, leaving nothing to stay.

(f) Withdrawing a Reconsideration Request or Hearing

If, in the course of the reconsideration proceedings, the parties (usually the Director and the appellant) "settle" the matter, great care should be taken to confirm the details of any settlement in writing. Withdrawal of reconsideration proceedings by an appellant without written confirmation risks reinstating the original Decision.

Generally on this see s.1(p): "Withdrawals", above.

(f) Reconsiderations and Court Appeal

While technically the reconsideration process is not a pre-requisite to a court appeal, in most cases it should be treated as such. Appeal courts generally (but not always: Ellis-Don v Ontario [2001] 1 SCR 221) want all available review or reconsideration processes to be exhausted before they will consider the merits of the appeal case.

Note that if a reconsideration HAS been requested and not yet finally resolved (by refusal or new hearing Decision), no court appeal should be filed [Reg s.70(2)]. Note further that going through the reconsideration process extends the time for filing an appeal with the Divisional Court to 30 days AFTER the reconsideration is refused, or a new hearing Decision is issued (as the case may be) [Reg s.70(3)].


4. Appeal to Divisional Court
IMPORTANT NOTE

At the point of considering an appeal to the court, unrepresented parties should immediately consider retaining a lawyer if they can as appeal filing deadlines usually come on very quickly and procedures are very specialized. Legal aid is generally available for administrative tribunal appeals to the courts.

As well, as a step before a court appeal, parties unhappy with a tribunal's decision or order should also carefully review the above section "Reconsiderations".

IN ANY SITUATION where a review or reconsideration is being commenced, care must be taken to ensure that any court appeal rights are preserved by proper AND TIMELY filings - unless (as if often the case), the decision to be appealed is not considered "final" until the review or reconsideration is decided. These complexities are another good reason to get a lawyer at this point.
(a) Overview

After a reconsideration has been explored (for good or bad) the next step by the losing party is an appeal to the Divisional Court, which is a branch of the Ontario Superior Court: the main trial court in Ontario. The Divisional Court specializes in administrative tribunal appeals such as this and normally sits as a three-judge panel.

Such an appeal is only available on a "question of law" [Act s.31(1)]. Appeals which challenge the Tribunal's conclusions on witness credibility and other fact-findings are possible under the argument that they constitute "misapprehension of evidence" - although rarely successful [see the below casenote re Sheldrick v Director, ODSP]. The appeal court's interpretation of this appeal standard (mostly regarding ODSP medical eligibility appeals, which are so much a part of the Tribunal's caseload) is discussed in the case law reviewed in Chapter 9: "Persons with a Disability".

The Court on appeal has essentially the same remedial jurisdiction that the Tribunal has [see s.1(g): "Jurisdiction", above], except that where the Tribunal may refer the matter back to the Director "with directions", the Court may refer it back to "the Tribunal or the Director" with directions [Act s.31(5)].
Case Note: Sheldrick v Director, ODSP

That said, the recent case of Sheldrick v ODSP (Ont CA, 2008) (an ODSP case) is a good example of how different courts can reach different conclusions on the issue of whether misapprehension or mistreatment of evidence can constitute an 'error of law', thus inviting the court to intervene. While the Divisional Court cited both GP and psychologist evidence introduced before the SBT as plainly confirming medical unemployability (and thus granted PWD status), the Court of Appeal in a brief endorsement simply disagreed, stating:
Respectfully, we do not agree with the Divisional Court that the Tribunal was either required "to accept" that evidenvce or that it disregarded or failed to appreciate the relevant medical evidence.
Case Note::
In the ODSP case of Jennings v. Minister of Social Services of Ontario (Div Ct, 2015) the court held (as it rarely does) that the SBT's misapprehension of evidence was so substantial that it constituted a 'question of law' (thus triggering the court's appeal jurisdiction). The legal error was twofold in that the Tribunal considered real estate assets and income of a partnership (in which the appellant had an interest) to be his personal financial resources which were chargeable against him for ODSP purposes, and also that it failed to consider financial disclosure provided by the appellant to Ontario Works during the unified intake process (the applicant's initial financial information was taken by OW) as being effective disclosure to ODSP:
The Tribunal found that Mr Jennings’ position that “there was no need for him to inform the Director separately when he had already informed Ontario Works borders on the ridiculous.”[61] It was not ridiculous. It was correct, at least until the time at which there was a change of circumstances, upon sale of the property in July 2011.
The court also held that it was only on the sale of the partnership interest (and the receipt of sale proceeds) by the appellant that such funds could be chargeable against him, since prior to that time the partnership interest was not available to him as a liquid asset. The court cited Reg 28(1)17 as exempting (from asset chargeability) real estate interests as long as "the person with the interest in the real property is making reasonable efforts to sell his or her interest."

The court took the unusual step of ordering that re-assessment of the appellant's eligibility in light of it's findings be conducted by an ODSP worker who had no earlier involvement with the file, and that - should a new SBT appeal arise from the circumstances - that it not be put before the same member who issued the Order under appeal.
(b) Procedure

Except as specifically noted here, the procedure for such an appeal is beyond the scope of the present program - but it is set out in the Court's "Rules of Civil Procedure", linked here:

Rules of Civil Procedure, R61: Appeals to an Appellate Court

As well, the Divisional Court has posted a useful Appeal Information Package on its website, explaining some of its procedures to the public.

The timeline for filing an appeal to the Court is "within 30 days after receiving the [Tribunal's] decision" [Reg s.70(1)]. Note however that the time for filing an appeal is extended by the time it takes to resolve any reconsideration proceedings (see "Reconsiderations: Reconsiderations and Court Appeals", above) [Reg s.70(2,3)].

Some other specific procedural appeal rules established in the ODSP legislation are:
  • that the Notice of Appeal should be served on all parties to the Tribunal hearing [Act s.31(3)] (Note: the Tribunal is not mentioned here but should be served as well);

  • the ODSP Director will typically participate in the appeal hearing through counsel from the Ministry of Community and Social Services [Act s.31(4)].
(c) No Stay On Appeal

Unlike most civil appeals, the filing of a Notice of Appeal to the court does NOT "stay" (suspend) the original Decision [Act s.26(4)]. Thus if the appeal is by the Director from a successful SBT Decision for the applicant, the applicant can expect to have the successful Tribunal Decision processed in their favour while waiting for the appeal to be resolved. If however the Director's court appeal is ultimately successful, then the income support paid in reliance on the previous success will be re-assessed as an "overpayment" (see Ch.9, s.3: "Director Decisions: Overpayments").

It MAY however be possible for the Director or another party to move before the appeal court for a court-ordered "stay" under its discretion under Rules of Civil Procedure [R63]. The specific wording of s.26(4) of the OW Act should be examined carefully as it is somewhat ambiguous on this issue. I am unaware if this uncertainty has ever been ruled on by a court.

(d) Record of Proceedings

Once served with a Notice of Appeal, the Tribunal must assemble the "Record" of the Tribunal proceeding and file it with the Court [Act s.31(2)] within 60 days [Reg s.71(2)]. This will be bound together in one legal document book.

At my last experience, Tribunal staff will not necessarily also serve the Record on all parties - so parties may have to negotiate for it or obtain photocopies from the court.
Note:
This tendency to be parsimonious with the Tribunal's photocopying budget may be chronic. The Tribunal's refusal to file some documentation as part of its record was itself the subject of litigation that wound its way up to the Divisional Court.

As a consequence it is now clear in law - if there were any prior doubt - that evidence is considered "filed" with the Tribunal for purposes of inclusion in the court appeal record if it is sent to the Tribunal for the purposes of a Tribunal appeal (as is normal disclosure practice) - EVEN IF it was not formally entered as evidence at the Tribunal hearing [Director, ODSP v Tranchemontagne (Div Ct, 2007)].
The "Record" includes [Reg s.71(1)]:
  • the Notice of Appeal;

  • the final and any preliminary Tribunal Decisions;

  • any written submissions filed with the Tribunal;

  • any written or documentary evidence filed with the Tribunal;

  • any correspondence to or from the Tribunal concerning the conduct of the appeal;

  • the member's notes taken during the hearing (transcript are rarely taken) [Reg s.76(4)];

  • any reconsideration documentation.

5. Judicial Reviews

Judicial review is a court proceeding useful in challenging a government decision where no statutory appeal route exists. Typically this can be used against Director or Tribunal Decisions where the nature of the decision is not covered by a statutory appeal route - such as those enumerated in the discussion of "non-appealable decisions" (see Ch.11, s.4: "Director Decisions: Appealable and Non-Appealable Decisions"). It may also be useful in limited cases where the statutory appeal route is not available for reasons of lateness or other unusual circumstances.

Two case examples of judicial review applications relating to non-appealable "discretionary benefits" issues are reviewed in Ch.4 "Benefits: Discretionary Benefits". Judicial review was also one of the routes chosen to argue that some social assistance Regulations were "ultra vires" (beyond the authority of) their parent legislation in Re Merrick and Ontario (Director, VRS) 49 OR (2d) 675 (HC, 1985) [see s.1(g) "Jurisdiction", above].

Where the issue on judicial review is whether the Tribunal had the jurisdiction to make the ruling that it did, the court will not show any "deference" to the decision under review. "Deference" (preference for the lower tribunal's decision) is typically reserved to situations of fact-findings where the lower tribunal had the oppourtunity to see the witnesses in person. However, as long as the Decision under review was made within the jurisdiction of the lower Tribunal, the standard for changing a legal conclusion on a judicial review is higher than in an appeal (where the standard is whether the decision was "correct"). The typical standard on judicial review is whether the decision challenged was "patently unreasonable". Judicial review reversals of fact-findings are subjected to an even higher practical standard and are very rare indeed.

The typical remedy sought in judicial review is to 'quash' the decision or the action challenged, and send it back to the original decision-maker to re-do it in accordance with the court's correcting directions. The procedure for applying to a court for judicial review is beyond the scope of this book. You should seek legal advice promptly if you think you may need this legal remedy.

Judicial reviews are generally discussed at this link:

Administrative Law (Ontario)(SPPA): Ch.9: Appeals and Judicial Reviews


6. Lawsuits
CAUTION: IF YOU ARE CONSIDERING SUING ANYONE BECAUSE OF ODSP TREATMENT, CONSULT A LAWYER RIGHT AWAY.
It is a common reaction of parties offended by treatment they have received to "want to sue". The standard lawsuit remedy is "damages", though it can also include "injunctions" (ie. orders to do or not do certain acts).

Commencing a lawsuit against any government or government-related entity (such as the ODSP Director, the Tribunal, Tribunal members, the Ministry, etc) is complicated, involves specialized procedures, specialized timelines, and a wide range of other very tricky issues.

Just figuring out WHO to sue is enough to give one pause. To start with, the ODSP Act specifically limits the liability of most persons and legal entities involved in the ODSP process:
s.58(1) Act
No action or other proceeding in damages shall be instituted against the Ministry, the Director or a delivery agent, an officer, employee of any of them or anyone acting under their authority for any act done in good faith in the execution or intended execution of a duty or authority under this Act or for any alleged neglect or default in the execution in good faith of any duty or authority under this Act.
Other laws that may be involved include conventional tort (negligence and related) law and the:

Proceedings Against the Crown Act

Public Authorities Protection Act

Situations of ODSP may also involve "Charter" law, in which case the complexity is magnified (see "Constitutional Issues", below).

Like I said, if you are considering suing the government about your ODSP situation, consult a lawyer right away.

That said, the recent 2008 Wareham v Ontario case is interesting reading. It involves a wide-ranging attempted class action grounded in systemic ODSP admininstrative delay.

Continue Chapter here ...
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