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2. Appeal Hearings

(a) Overview

Despite persistent efforts to introduce more abbreviated and 'efficient' methods such as telephone hearings [see 2(c) below] and the "early resolution program" [see s.1(k) above], most SBT hearings are still heard "orally", ie. in a sit-down, quasi-court like fashion very similar in structure to a conventional civil trial. All parties can: attend, call evidence, cross-examine and make legal submissions. The adjudicator presides, controlling proceedings - and asking questions as well. The one major exception to usual tribunal procedure is that the hearing is private, held in a closed room.

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 procedure is straightforward, and dates are set by the Tribunal by which documentation from the parties must be exchanged and filed.

In October 2005 provisions for "electronic" (ie. telephone) hearings have come into use pursuant to new Tribunal Rules made under jurisdiction granted to the Tribunal under the Statutory Powers Procedures Act [SPPA s.5.2]. These can be imposed despite the objections of the parties. In my view telephone hearings have great potential to impair natural justice - not to mention greatly demoralize appellants who will feel degraded by such casual treatment. Appellants will (quite accurately) see rich corporations monopolize courtrooms and judges for months and years in battles trying to make themselves richer, while the lowly welfare claimant doesn't even get the courtesy of a brief face-to-face hearing to resolve issues essential to their physical and social well-being. Procedures for avoiding telephone hearings should be explored fully [see s.2(d) below].

That said, practice in telephone hearings is almost identical to that in oral hearings - albeit cumbersome and awkward for all concerned. Readers anticipating a telephone hearing should thoroughly review the discussion of oral hearings below as well as that for telephone hearings.
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.
Some legal aspects of the Social Benefits Tribunal relevant to hearing procedure(ie. panels, sittings, member appointments, and basic adjudication principles such as independence and absence of bias) are dealt with in s.1(c): "The Social Benefits Tribunal", above.

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

As the Social Benefits Tribunal is governed by the Statutory Powers Procedures Act (SPPA), the Isthatlegal.ca Administrative Law (Ontario) Legal Guide is linked here for reference. That Guide in turn links to the Small Claims Court program for an overview of civil hearing fundamentals.

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

(b) Oral Hearings

. Overview

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

Starting in January of 2006 hearings have been all scheduled either in a morning (9am) or afternoon (1pm) timeslot, with Tribunals members hearing cases as they are prepared to proceed first. Parties with cases needing adjournments, missing witnesses or translators, or requiring that other preliminary issues be dealt with first, will be left until later.

The Tribunal formerly had a practice of not sitting on Mondays or Fridays, the idea being to leave time to write rulings. This practice is not fixed however and matters have more recently been scheduled for those days as well. All hearings are closed to the public [Act s.66(1)] - which is an express exception to SPPA provisions dealing with media access to legal proceedings. In practice, and if all parties consent, then individuals such as law students, new CSRs and (most commonly) new Tribunal members - are allowed in to observe and train.

Practical issues such as handicap accomodation, translation, security should all have been addressed by communication with the CSR well before the hearing date.

. Procedure

The Tribunal actively encourages 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 legal proceeding. Treat the Tribunal and other parties with respect. When a translator is involved, look and speak to the witness - not the translator - and wait for the translation before you continue (tell your witness to do this too as many know some English).

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. Use of evidence concealed from a party is grounds for appeal court reversal of the proceeding [Act 28(9)(10) and Re Cardinal and COMSOC (Director, FBA) 32 O.R. (2d) 65 (Div Ct, 1981 - discussed at s.1(n): "Evidence and Submissions Disclosure"].

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, or at least bring with them whatever holy book may be required for an oath of their choice.

In most cases preliminary comments are neither appropriate nor useful and advocates should not make them (everyone else there usually knows 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. Taking the oppourtunity to expound or argue your case as a preliminary issue (a common temptation of unrepresented parties and novice legal representatives) will be unappreciated and usually quickly shut down.

After preliminary matters, the Tribunal will normally turn the case over to the appellant and/or their advocate, who must present their evidence case first [Reg s.76(1)]. Where an advocate is present they are then expected to take the appellant through what is called 'examination in chief', a series of questions designed to extract from the appellant relevant and material evidence. Any documentation filed properly beforehand will be accepted into evidence without any further formality or foundation (though of course 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.28(11)] 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 - although many members will just start asking key questions themselves, often in a leading fashion. How your Tribunal member deals with this will vary with their personalities and inclinations. Tribunal members walk a fine line on this practice: in the Divisional Court case of Dowlut v Ontario [1985] OJ #1103 the court spoke against the tribunal acting as a cross-examining party ('usurping the role of counsel'), preferring the operation of the adversarial process - even where appellant was unrepresented. On the other hand, time constraints leave members with little practical solution to the problem of an unrepresented, untrained and disorganized appellant who cannot distinguish unimportant details from key material issues in their case. Such appellants will often welcome direction from the Tribunal as to key areas of evidence.

The Tribunal is required to make a written record of evidence taken at an oral hearing [Reg s.76(4)]. The practice is to record testimony by the member's hand-written notes, although the law allows for other methods of recording from which a transcript can be produced should the Tribunal be so inclined.
Note:
A new Practice Direction issued by the SBT sets out a "pilot project" to commence electronic recording of some hearings commencing March 2007, but at the date of writing (15 August 2012) was inactive:

Practice Directive 7: Recording Proceedings
After examination-in-chief the Tribunal will give the other side (the "case presenting officer") a chance to ask questions of the appellant. This is formally called the "cross-examination" stage (note: the term "cross-examination" can be confusing as it also refers to a style of examination where 'leading' questions are asked, as is typically the case at the cross-examination stage). Any new issues raised on cross-examination may be again explored and clarified by the appellant or their advocate in re-examination, although this stage is often skipped as unnecessary. 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 substantial 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 repeats itself: examination in chief, cross-examination, re-examination - for all witnesses. It is standard practice for witnesses (except parties) 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 truthful. This practice helps appellants as much as anyone because assisted testimony is usually granted very little weight. Similarly the testimony of the appellant's children, unless it is plainly articulate and self-generated, will typically be accorded little weight since they are viewed as too close to and likely influenced by the parent/appellant.

In the (unusual) case where the administrator brings a witness or witnesses (they usually rely on documents), these will be called after the appellant's witnesses have concluded their testimony. If these witnesses raise new and unanticipated issues the appellant can request permission to recall one of their own witnesses (or even a new witness altogether) to address the new issues raised (rebuttal), but such right is not automatic.

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 (amazing how hard some people find that to do).

The other parties will have a similar oppourtunity. Avoid the temptation to turn this part of the hearing into an argument with the other side. If the other side does this it will likely just annoy the member.

(c) Written Hearings

The Tribunal may hold a "written hearing" at its own discretion, and must hold a written hearing if all parties consent (and so request) [Act s.65(2); Reg s.83]. Written hearings are not usual, and are only suitable when no significant facts are at issue, leaving only legal argument.

As noted above regarding "Notices of Hearing" the timelines for exchange and filing of documents for a written hearing will be set out in the Notice of Hearing [Reg s.74(2)].
Note: In addition to the above-cited OWA provisions, the SPPA sets out sketchy terms under which a Tribunal may establish procedures for written hearings [SPPA s.5.1] and thus gain the jurisdiction to hold them. However this jurisdiction has not yet been used by the SBT, and legal authority for them is located in the few OW legislative provisions already cited.
Obviously, participation in a written hearing emphasizes written advocacy skills. It is beyond the scope of this program to explore these at present, except for a few thoughts:
  • stress simplicity, organization 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 avoid extended efforts to rehabilitate evidence that is just plain weak.
(d) Electronic (Telephone) Hearings

. Overview

The Ontario Works Act only peripherally anticipates the holding of electronic hearings [Act s.34(1)(c)]. The Tribunal's full jurisdiction to use telephone hearings 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.

The Tribunal Rules ("Practice Direction") established for this purpose are located at the Tribunal's website, and are linked here:

Practice Direction 3: Rules for Electronic Hearings

There are discrepancies between Tribunal's "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]:
  • that 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, Time and Manner of Hearing

    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;

  • Advisory of Right to Object

    Unless the electronic hearing deals with procedural matters only, an advisory 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";

  • Advisory re Non-Participation

    An advisory 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)]
As noted, this process is new in Tribunal procedure. 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 "Advisory re Right to Object" requirements as set out above, as it fails to state the basis upon which an objection may be granted (ie. "likely to cause the party significant prejudice"). The Notice reads only: "if you object to a telephone hearing you must contact your [CSR] ...".

That said, the experience in this one case of counsel was that the "Objection" was granted on counsel's simple request (without any reasons being advanced by counsel) - and an oral hearing Notice was sent out shortly afterwards. 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 unpresented participants who do not realize the implications of the "objection" right nor the problems with the telephone process.

The disturbing aspect of this (albeit very limited) example is that the Tribunal felt no hesitation in principle in scheduling an ODSP medical eligibility appeal (where witness credibility is such a key issue) by way of telephone hearing. In my opinion, similar use of telephone hearings in other cases where credibility is similarly key (ie. most of them) will necessarily result in significant degradation of natural justice against appellants. (See "COMMENT Re Telephone and Written Hearings", below.)

. The "Practice Direction"

Unlike the 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.

The Practice Direction "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." These reasons beg the question as to whether it is 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 similarly extend itself to non-urban areas as a basic aspect of administrative fairness.

The "Practice Direction" does provide some insight into factors that the Tribunal will address in deciding whether or not to hold 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 below under "COMMENT", 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 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 Tribunal members to ameliorate the potential for prejudice contained in wholesale 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 then re-scheduled en masse.

. Control of Proceedings (Electronic Hearings)

A Tribunal 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 and witnesses), 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 following procedures and rules are similar to "default procedures" found in civil litigation.

The SPPA sets out that when parties fail to attend or participate in a hearing after proper notice (regardless of it's 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 (telephone) hearing" [OW Act s.34(1)(c)]. In such a case the OW Act provides that the appeal must be denied.
Note:
Where a party has missed a hearing for good reason, and these rules have been applied against them, they should consider requesting a "reconsideration" [see s.3 "Reconsideration Hearings", below].
Of course, while not all "parties" are "appellants", all "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.34 OWA 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 that this is contrary to Tribunal practice, which is to automatically and summarily dismiss appeals where the appellant does not attend and no reasonable cause is shown for the absence. That said, Tribunals doing this rely on the onus provisions regarding appeals [Act s.28(11)], that the appellant bears the onus of proving their case and non-attendence necessarily fails in that duty.

However, as it is the administrator's standard practice to file it's submissions and evidence in written (often blatantly hearsay and double-hearsay form) form, it would appear to be only fair to the appellant for the Tribunal to undertake a full review of the parties' documentary evidence and to issue a Decision on that basis alone. 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 onus of proving their appeal.

(f) COMMENT Re Telephone and Written Hearings

As already alluded to, in my mind the use of written or telephone hearings in any administrative proceedings where testimonial evidence is material 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 by face-to-face interaction. As almost all welfare appeal cases involve credibility issues (ie. over 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 the rights of welfare applicants and recipients. What is at stake for this class of citizens is very often the stark difference between: housing and the street, mental health and intolerable stress, security and fear, custody and apprehension of their children. To short-change their rights to full natural justice in these circumstances is a choice that is both callous and arrogant.

Also telling on this issue is that there seems to be no particular efficiency benefit to the Tribunal in non-oral hearings, for it is the parties and witnesses who do the bulk of the travelling for oral hearings - members need only travel to the hearing site. To counter that this limited amount of member travel is an intolerable burden upon them would reflect an arrogance that could 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 health and safety circumstances demand it, such as with Criminal Injuries Compensation Board hearings (see that Isthatlegal.ca Legal Guide) - 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 competently arranging amongst themselves for years.

It is my fervent hope that individual Tribunal members, familiar with the realities of the appellant "clientele" that regularly appears before them - and the difficulty and awkwardness are trying to juggle 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

The general subject of Tribunal "Orders" is dealt with in the Statutory Powers Procedures Act and is discussed at the following link:

Administrative Law (Ontario)(SPPA): Ch.7: Orders

This present section deals with the contents and details required of written appeal Decisions of the Tribunal. The closely related topics of the remedial and subject-matter jurisdiction of the Tribunal are discussed in s.1(g) "Appeal Process: Jurisdiction", above.

As is discussed in the SPPA link, note 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.78]:
  • include reasons [Act s.31(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 computer-facilitated "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, legal reasoning and conclusions must be.

These issues - and cases - are discussed at length in Ch. 9, s.2(e): "Administrator Decisions: Notice of Decision", especially in the casenote regarding the Gray v Ontario case. While I have located that discussion in the "administrative" Notice chapter, 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 32(2), and Reg 67(2) "reasons for the decision"].

. Late Decisions

As noted above, the law requires that Decisions be "delivered" within 60 days after evidence or submissions are last taken in a case [Reg s.78(1)].

It sometimes happens that individual Tribunal members miss this "deadline", leaving the appellant in a very awkward position. To complaint about the lateness of the member - even to the point of threatening one's legal remedies (ie. judicial review, see below) is to risk offending the very person who is charged with adjudicating the complainant's matter - thus creating a "conflict of interest" or legal "bias" against the appellant. A "conflict of interest" occurs where a person in a position of adjudication has interests that conflict with those of a party - thus tempting them to introduct 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 the complaint. 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. Therefore by conventional legal principles the very act of complaining of the lateness to the presiding member should result in the administrative Tribunal resetting the matter for a fresh hearing before a new member. However, the Tribunal does not take that position and indeed few appellants want that result as it would entail extended delay in having their case resolved. In past appellants have simply waited for the Decision (I have seen several run for six months overtime).

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

Social Benefits Tribunal Member Conduct Complaint Procedure

Unfortunately, while under this "Procedure" (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 to this rule. 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 (better) giving them less other work to do to 'catch-up'.

Further, if any animosity from the "late" member shows itself in the final ruling, the complaining appellant may now be seen as having "waived" their right to a timely ruling by their participating in the complaint process (a form of "estoppel").

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 once the 60 days are up.

Any other solution 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

Not surprisingly, Tribunal Decisions are effective when issued [Act s.31(4)].

This unremarkable fact has meaning 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" are "stayed" (ie. suspended) once an appeal is filed with the court [see Rules of Civil Procedure, R63: Stay Pending Appeal]. However, Tribunal Decisions (despite their financial implications) are an exception to this rule, and "continue[] in effect until a decision of the Divisional Court is made on appeal." [Act s.31(4)].

The wording of s.31(4) [Act] leaves open the issue of whether the appellate court has jurisdiction to issue a discretionary stay, which they have 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).

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 if the reconsideration Decision later reverses the original Tribunal Decision.


3. Reconsiderations

(a) Overview

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

A "reconsideration" involves two steps: firstly, the paper "Request for Reconsideration" stage in which parties submit written submissions in support of the request, which - if granted - results in the second step: the reconsideration hearing - which is essentially a re-hearing of the case "de novo" (as new).

The law does not specify upon what basis a reconsideration request must be made, but substantial violations of natural justice and legal error should suffice. However the Tribunal has moved to establish rules governing reconsiderations in an 01 March 2004 "Practice Direction". These 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 Orders

Practice Direction: Reconsideration Requests

For the most part, the Tribunal has restricted the application of reconsiderations to "final" Tribunal Decisions, although the Practice Direction says that the Tribunal may reconsider interim procedural issues "in exceptional circumstances". In no case however may an "interim assistance" 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".

(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 reconsideration on all other parties to the appeal [Reg s.79(1)]. Note that the Tribunal often "re-serves" the original Request on the other parties itself when they set out a schedule for the exchange of documents and ruling on the matter - though this practice should not be relied upon.

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.79(2)]. Extensions - if required - should be specifically requested in writing, with reasons for the lateness being explained (for comparative law, 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.79(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.79(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.79(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 basis of the original decision is grounded in fact-findings or findings of credibility by the original Tribunal member made at an oral hearing. As well, even if a mistake has been made in the original Decision, it must be 'material' in the sense that it 'made a difference'. Minor mistakes that would not likely effect the outcome are a poor basis of 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) may ground a successful 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.

In any event, as per it's "Practice Direction" on the topic, 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(f) "Jurisdiction", above);

  • violation of rules of natural justice or 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 the most 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. 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, it will be held as a new hearing with no reference to the earlier hearing results, and subject to all the normal procedural rules for a regular 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, 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 "Appeal Process" above] [Reg s.79(6)]. For instance, if the reconsideration is requested by the administrator and a new hearing is to be held, then the administrator must provide their written submissions and evidence as though they were the appellant, and they present their evidence case first [contrary to Reg s.76(1)].
Note: The law does not expressly require that the new hearing will be held orally, but that seems conclusion seems to be a necessary implication from the wording of the 'order reversal' established under Reg s.79(6), which reverses the order of filing and presentation for oral hearings.
No reasons are given by the Tribunal for either granting or refusing a reconsideration request, a policy which has been upheld by the Divisional Court in Barnes and Social Benefits Tribunal (Div Ct, 2009), argued unsuccessfully by the author.

(e) 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 yet be filed [Reg s.81(2)]. 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.81(3)].


4. Appeal to Divisional Court
Important Note:
At the point of considering a court appeal, 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.


As well, as a step before a court appeal, parties unhappy with a tribunal's decision or order should also carefully review section 3: "Reconsiderations", above.
(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.

In Ontario (COMSOC) v Vallecillo [1998] OJ #828 (QL) (Div Ct, 1998) the court held that it had no jurisdiction to consider an appeal from an interim decision of the (then) Social Assistance Review Board.

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 administrator "with directions", the Court may refer it back to "the Tribunal or the administrator" with directions [Act s.36(5)].

In Sandiford v Ontario (ODSP) [2005] OJ #854 (Div Ct) the court granted an applicant's appeal in an ODSP eligibility case and declared her eligibility outright rather than referring the matter back to the Tribunal. The court found that it was largely in the same position as the Tribunal to make this decision as it turned primarily on the documentary evidence, and also that the circumstances of the appellant were dire due to poverty, depression and her having three young children. Further delay was to be avoided.

(b) Basis of Appeal

Court appeal is only available on a "question of law" [Act s.36(1)]. Appeals which challenge discretionary fact-findings and the Tribunal's conclusions on witness credibility are rarely successful. In Equity Waste Management of Canada v Halton Hills 35 O.R. (3d) 321 (Ont CA, 1997) the Court of Appeal (Laskin J) described the rare instances where a factual error may justify appellate review:
What is important for this appeal is the kind of error that justifies intervention by an appellate court. An error of law obviously justifies intervention. An appellate court may interfere with a finding of fact if the trial judge or motion judge disregarded, misapprehended, or failed to appreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the evidence.
Courts are willing to characterize fact treatments as legal issues in order to do justice, as the following cases reflect. In Sampson v Ontario (Director, ODSP) [2002] OJ #838 (QL) (Div Ct) when a Tribunal "disregarded or failed to appreciate relevant evidence" (a medical report), this was legal error justifying intervention. In Re McLeod [1977] OJ #508 (Div Ct) a complete absence of evidence to support the Board's conclusion of spousal status was a legal error which opened the way for appellate court review. In Thomas v Ontario (ODSP) [2004] OJ #2702 (QL) (Div Ct) the failure of a Tribunal to make findings of fact on three key medical reports was legal error justifying the granting of an appeal.

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 evidence or that it disregarded or failed to appreciate the relevant medical evidence.
Numerous cases have established that the "standard of review" in an SBT appeal case is that of "correctness", with little deference being given to the Tribunal's conclusion except on the issue of fact-findings - as discussed above.
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.
(c) 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.81(1)]. Note however that the time for filing an appeal is extended by the time it takes to resolve any reconsideration proceedings (see "Reconsiderations", above) [Reg s.81(2,3)].

Some other rules applicable to welfare court appeals are:
  • that the Notice of Appeal should be served on all parties to the Tribunal hearing, and to the Director of Ontario Works [Act s.36(3)] (Note: the Tribunal is not mentioned here but should be served as well, as it notifies them to prepare their "record" of proceedings);

  • the Director of Ontario Works is entitled to participate in the appeal hearing, and which case they typically act through counsel from the Ministry of Community and Social Services [Act s.36(4)].
(d) No Stay On Appeal

Unlike most civil appeals [see Administrative Law (Ontario)(SPPA): Ch.9: Appeals and Judicial Reviews], the filing of a Notice of Appeal to the court does not "stay" (suspend) the original Decision [Act s.31(4)]. Thus if the welfare administrator is filing a court appeal from a recipient's successful appeal to the SBT, the recipient can expect to have the successful Tribunal Decision implemented in their favour while waiting for the appeal to be resolved. If however the administrator's court appeal is ultimately successful, then the assistance paid in reliance on the previous SBT success will be re-assessed as an "overpayment" (see Ch.9: "Administrator Decisions: Overpayments").

It may however be possible for the administrator or another party to move (ie. make a "motion") to the appeal court for a discretionary "stay". The specific wording of s.31(4) of the OW Act should be examined carefully as it is somewhat ambiguous on this issue. I am unaware that this uncertainty has ever been ruled on by a court.

(e) 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.36(2)] within 60 days [Reg s.82(2)]. 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, as if there was ever much 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 itself [Director, ODSP v Tranchemontagne (Div Ct, 2007)].
The "Record" includes [Reg s.82]:
  • 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 or - if the proceeding has been electronically recorded, a transcript of the hearing. For electronic recordings, see the Practice Direction linked at s.2(b) above; though at the date of writing (31 August 2010) the Tribunal is not recording hearings.[Reg s.76(4)];

  • any reconsideration documentation.
In Branoff v Ontario (COMSOC) [1986] OJ #229 (QL) (Div Ct) the court allowed a motion striking portions of the member's notes from the Record which contained "comments or conclusions" as opposed to "evidence or factual observations". I suggest that this is a distinction which is not so easy to make in practice.

In Re Proc (1974) 17 RFL 174 (Div Ct) the court on an appeal accepted supplementary affidavits filed by the appellants as to what transpired at the appeal hearing where the Board elected not to have a transcript of the proceedings taken:
If the Board sees fit not to have a transcript taken of its proceedings, then it will have to take care that all relevant and material facts are contained in the record which it submits to the Court for the hearing of an appeal. In the present applications, it is alleged that the records are not complete and the affidavits have been filed so that complete records will be before the Court on the hearing of the appeals. We can see no way in which the records can be complete if we refuse to permit these affidavits to be filed. It may be that on the hearing of the appeals, the material may turn out not to be relevant to the matters in issue, but this is something which can only be determined when the appeals are heard by the Court.
(f) Fresh Evidence on Court Appeal

Appellants often feel the urge to provide an appeal court with "fresh evidence" to supplement their case at the appeal level. The admission of such evidence conflicts with the normal appellate court role, which is to examine the correctness of the Decision appealed from: Re Cardinal and COMSOC (Director, FBA) 32 O.R. (2d) 65 (1981, Div Ct).

A typical application of this principle is found in the case of Re Chen 5 CPC 78 (Div Ct, 1977) where the court refused to admit fresh evidence (a second translation of a Chinese letter already translated into evidence at the first instance):
I need hardly say that the test for the reception of new evidence in an appeal is based upon the principle that it was not previously available to the proponent and that the proponent used due diligence at all times in obtaining what was available at trial. It is perfectly clear that had due diligence been used, a translation acceptable to the appellant could have been before the Board. In any event the proper course for the appellant seeking to have a fresh translation of a letter in a matter of this kind is to apply to the Welfare Administrator to have the matter reconsidered in the light of the new evidence and not to the appellate court or appellate tribunal which is considering the appeal.

5. Judicial Reviews

Judicial review is a court proceeding used to challenge government decisions where no statutory appeal route exists. Typically it can be used against administrator or Tribunal Decisions such as those enumerated in the discussion of "non-appealable decisions" (see Ch.9 "Administrator Decisions: Non-Appealable Decsisions"). 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 examples of judicial review applications relating to non-appealable "discretionary benefit" 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, or committed a purely legal error, the court will not show any deference to the decision under review and will just rule as to whether the decision was 'correct'. However, as long as the Decision under review was made within the jurisdiction of the lower Tribunal and without obvious legal error, the standard for changing a finding of mixed fact and law (that is, the application of facts within a legal test) the standard applied on a judicial review is whether the decision was "reasonable". The "reasonableness" standard focusses on the manner in which the lower decision was made, and will tend to defer to it as long as there were no obvious or extreme errors made: Dunsmuir v New Brunswick (SCC, 2008). Judicial review reversals of fact-findings are subjected to an even higher practical standard and are very rare.

One characterization of the "deference" which a court affords a lower decision on judicial review is found in Fitzpatrick v Ontario [1981] OJ #1003 (Div Ct).
It is to be remembered that this is an application for judicial review and accordingly, the sole test is whether there was any evidence to justify the decision made by the Board.
The typical remedy sought in judicial review is to 'quash' the decision or act challenged, and send it back to the original decision-maker to re-do it in accordance with the court's correcting comments. The procedure for applying to a court for judicial review is beyond the scope of this book. You should seek legal advice if you think you may need this legal remedy.

There is no statutory time limit on when a judicial review must be commenced, but the Divisional Court applies a de facto six-month limit, after which good reason for delay must be shown.

Judicial reviews are generally discussed at this link:

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


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