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Barnes v. Ontario (Social Benefits Tribunal) Between Frederick Barnes, Applicant, and Social Benefits Tribunal and Director, Ontario Disability Support Program, Respondents Court File No 516/08 Ontario Superior Court of Justice Divisional Court - Toronto, Ontario S.N. Lederman, K.E. Swinton and K.M. van Rensburg JJ. Heard: June 15, 2009. Judgment: July 15, 2009. Counsel: Simon Shields, for the Applicant. Jill Dougherty & April D. Brousseau, for the Respondent, Social Benefits Tribunal. Rebecca J. Givens, for the Respondent, Director Ontario Disability Program. -------------------------------------------------------------------------------- ?????The judgment of the Court was delivered by ?????S.N. LEDERMAN J.:-- Nature of the Proceeding 1 ????This application for judicial review concerns the issue of whether the Social Benefits Tribunal (the "Tribunal"), in deciding to hold a reconsideration hearing, on the written request of a party, must provide reasons for the decision to hold a new hearing. 2 ????The subject matter of this application is the Tribunal's decision dated May 1, 2008 wherein it granted the Application for Reconsideration of the respondent Director, Ontario Disability Support Program ("Director") and ordered a re-hearing of the applicant's appeal of the Director's original January 29, 2007 decision to deny the applicant's eligibility for Ontario Disability Support Program ("ODSP") income support as a "person with a disability". Background Facts 3 ????By decision dated January 29, 2007, the Director denied the applicant's eligibility for income support under the Ontario Disability Support Program Act, S.O. 1997, c. 25, Sch. B, ("ODSPA") finding him not to be a "person with a disability" within the meaning of that Act. 4 ????The applicant filed a statutory Request for Internal Review on February 21, 2007. The decision was reviewed and the Director's original decision was confirmed. 5 ????By Notice of Appeal, the applicant appealed to the Tribunal to challenge the denial of disability support. The appeal was granted by Decision dated January 29, 2008. The Tribunal held that the applicant was a "person with a disability", and that if he was otherwise eligible, income support was to be paid, with a review of the applicant's eligibility two years from the date of the Tribunal's decision. 6 ????By Application for Reconsideration, the Director sought an order from the Tribunal that the appeal be re-heard. In support of this application, the Director raised five issues, including legal error in applying the wrong test to determine "person with a disability", more specifically in failing to apply a "two-step test" comprising separate consideration of ODSPA provisions s. 4(1)(a) ["substantial impairment"] and s. 4(1)(b) ["restriction in the activities of daily living"]. The Tribunal's Decision 7 ????On May 1, 2008, after considering the parties' written submissions, the Tribunal granted the Director's Application for Reconsideration, ordering "a fresh hearing at which both sides will have the opportunity to present full evidence and legal arguments about the case". 8 ????By letter dated June 5, 2008, the applicant's counsel requested that the Tribunal issue reasons for the Decision to grant the Application for Reconsideration. By subsequent letters exchanged between the applicant's counsel, the Tribunal and the Director, the request for reasons was further discussed, but no reasons were ever issued. Standard of Review 9 ????The applicant seeks judicial review based on issues of procedural fairness or natural justice. 10 ????All parties acknowledge, and we agree, that when considering such an allegation of breach of the duty of fairness, it is not necessary for the court to assess the appropriate standard of review. Instead, the court is required to evaluate whether the appropriate procedural fairness has been adhered to. 11 ????The duty of fairness has been recognized as a flexible duty that may vary based on all of the circumstances. The five factors to consider when determining the content of the duty of fairness as set out in Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 at paras. 23-28 are: 1)? the nature of the decision and the process followed in making it; 2)? the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; 3)? the importance of the decision to the individual affected; 4)? the legitimate expectations of the person challenging the decision; and 5)? deference for the choices of procedure made by the agency itself. Applicant's Position 12 ????The applicant submits that when one takes into account the Baker factors and, in particular, the nature of the decision and the importance of the decision to the individual affected, the failure to give reasons breached the duty of fairness to the applicant in the circumstances of this case. 13 ????The applicant argues that a request for a reconsideration hearing is functionally akin to an appeal in a civil case in that, if granted, a new hearing is ordered (just as an appellate court may order a new trial). In a civil appeal, a losing party who had been successful in the court below should receive reasons, as a matter of fairness, explaining why that party is now being deprived of the benefits obtained from the result of the decision below. 14 ????In the circumstances of a request for reconsideration, the applicant submits that the decision to hold a new hearing without the giving of reasons provides no guidance, no corrective function, and essentially deprives the applicant of the benefits and rights given after the conclusion of a full hearing by the initial Tribunal. He argues that the failure to give reasons at this stage of the process is antithetical to the notions of openness and transparency as it would be unfair for a person subject to such a decision not to be told why the result was achieved. He submits that there should be no entitlement to a new hearing without good reason. 15 ????Moreover, the applicant submits that the absence of reasons renders ineffectual any appeal or judicial review from that decision. 16 ????As to the importance of the decision, the applicant submits that the impact on him is considerable as he loses any benefits that he obtained from the initial Tribunal decision. Analysis 1)? Nature of the Decision 17 ????The ODSPA provides for an appeal to the Divisional Court of the decision of a Tribunal on a question of law (s. 31), but does not make reference to the reconsideration process. Authority for reconsideration by the Tribunal of its own decisions is found in s. 21.2(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. s. 22, which provides: 21.2(1) Power to review -- A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. 18 ????The Tribunal has issued rules with respect to reconsideration hearings in the form of Practice Direction 2 - - Reconsideration Requests (February 20, 2004). This Practice Direction indicates the grounds for which a reconsideration hearing can be granted, which include jurisdictional error, breach of the rules of natural justice or procedural fairness, serious errors of law and new evidence which is material and was unavailable. O.Reg. 222/98, the general regulation under the ODSPA, sets out the procedure for a reconsideration application, and if granted, the reconsideration hearing (s. 68). 19 ????A party who is dissatisfied with a decision of the Tribunal accordingly may proceed directly to an appeal to the Divisional Court or may request a reconsideration, which if granted would generally result in a new hearing on all issues on the appeal by a member of the Tribunal other than the person who heard the original appeal. (The Practice Direction also provides for a hearing limited to an issue for which the reconsideration was granted, which may be assigned to same Tribunal member.) 20 ????Although the applicant analogized the decision to grant a reconsideration hearing to a civil appeal decision overturning a lower court ruling, the more appropriate analogy is that of a decision of a screening body determining whether a hearing should be held by another tribunal at the same level as the original tribunal It is not a decision which determines the merits of either the applicant's appeal or the substance of the reconsideration. 21 ????The content of the duty of fairness is limited where, as here, the Tribunal has merely referred the matter to a new hearing for reconsideration. In so doing, the Tribunal determined that the first appeal hearing was flawed, but did not make any findings of fact or any decision on the merits of the reconsideration. 22 ????Moreover, the reconsideration process is unique to administrative decision-making and does not follow the judicial model. Accordingly, it is inappropriate to adopt all of the procedural requirements of the civil court system in order to achieve fairness. 2)? Nature of the Statutory Scheme 23 ????Section 17 of the SPPA, requires a Tribunal to give reasons (if requested) in respect of a final decision or order. A decision to hold a reconsideration hearing is not a "final decision" as it does not finally determine the applicant's rights and interests or his eligibility for disability benefits. It is simply a decision to hold a fresh hearing and does not trigger a duty to give reasons either under the SPPA or the Tribunal's enabling legislation. 24 ????Similarly, s. 68(5) of O.Reg. 222/98 and s. 79(5) of O. Reg. 134/98, the general regulation under the Ontario Works Act, 1997, S.O. 1997, c. 25 ("OWA") provide that a Tribunal shall issue "a decision as to whether to hold a reconsideration hearing ..." (emphasis added), but do not require the Tribunal to give reasons for that decision. In contrast, the ODSPA (s. 26(2)) and the OWA (s. 31(2)) provisions regarding appeals do require that reasons be given at that stage. 25 ????If a Tribunal decides to hold a reconsideration hearing, the hearing proceeds according to the same rules as the original appeal and the Tribunal must give reasons for its decision after completing the hearing and reaching its decision. There is no statutory or regulatory obligation to give reasons before the reconsideration hearing is completed. 26 ????Where a party has requested a reconsideration hearing, s. 70(2) of O.Reg. 222/98 expressly prohibits the commencement of any appeal to the Divisional Court until either the Tribunal has held the reconsideration hearing and delivered a decision, or has refused to hold a reconsideration hearing. In the latter case, an appeal lies to the Divisional Court from the Tribunal's original decision, but not from a refusal to hold a reconsideration hearing. 3)? Importance of the Decision of the Tribunal 27 ????The Tribunal's decision to hold a reconsideration hearing does not have a significant impact on the rights or entitlements of the applicant. It does not determine his eligibility for disability benefits or the merits of his appeal to the Tribunal. The decision simply requires the applicant to participate in a hearing at which time he will have the full range of procedural rights, including the right to receive reasons for the decision and a right of appeal on a question of law if he is dissatisfied with the result. 28 ????The initial Tribunal decision that was favourable to the applicant here does not amount to a positive right or proprietary right to retain the benefits achieved, as the administrative legislative framework (the SPPA, and the ODSPA and the OWA regulations) contemplates both a reconsideration and an appeal. 29 ????This recognizes that the procedural protections will be afforded during the reconsideration hearing and are not applicable at the point when the matter is merely referred for a new hearing. 4)? Legitimate Expectations of the Applicant 30 ????There is nothing in the statutes, the regulations or the Tribunal's Practice Direction 2 which requires reasons for a decision to hold a reconsideration hearing and there is no evidence that anything to the contrary was represented to the applicant. The applicant could not, therefore, have any legitimate expectation of reasons from the Tribunal in these circumstances. 5)? Choice of Procedure Made by the Tribunal 31 ????It has been the Tribunal's general practice not to provide reasons for granting a reconsideration hearing and to provide very brief reasons for denying an application for a reconsideration hearing. The rationale for this procedural choice is that it is consistent with the statutory scheme and avoids the inefficiency, duplication of effort and potential unfairness which would arise from providing reasons for deciding whether to hold a hearing. If reasons were given when a hearing is ordered, they would inevitably touch on the substance of the reconsideration request. Such a decision is made without the benefit of the evidence and submissions that would be available at the hearing itself and there is concern that reasons may influence the member who presides at the hearing, such as to give rise to a reasonable apprehension of bias. 32 ????In exercising its discretion as to whether to grant a reconsideration hearing, the Tribunal is engaged in balancing the importance of the finality of the initial Tribunal decision with the need to address substantive problems that may have arisen in the original decision without the need and cost of further court appeals and judicial review. 33 ????The request for reconsideration and the reconsideration hearing itself constitute a beneficial procedural step for all parties in that they allow a Tribunal to deal expeditiously and relatively inexpensively with legal errors and may obviate the need for resort to the courts which inevitably gives rise to further costs and delay. 34 ????Given the Tribunal's substantial case load, it would add a significant burden to the Tribunal if it were obliged to render reasons on the granting of every request for a reconsideration hearing. Reasons are required in every case in the appeal to the Tribunal and after a reconsideration hearing. That is sufficient in the interests of fairness to the parties and allows for a workable reconsideration process. Summary 35 ????The statutory scheme is designed to provide an inexpensive and expeditious means for the Tribunal to correct errors in its own decisions without requiring the parties to pursue an appeal or a judicial review application. The scheme requires the Tribunal to give reasons after the hearing of an appeal or a reconsideration hearing, but not in respect of the preliminary decision to hold a hearing. Moreover, upon review of the Baker factors, the content of the duty of fairness does not require the Tribunal to give reasons when a request for a reconsideration hearing has been granted. Conclusion 36 ????The respondent Tribunal also raised the issue that the application for judicial review is premature. In light of our conclusion on the merits of this matter, it is unnecessary to consider that issue. 37 ????The application is, therefore, dismissed. As agreed by counsel, there will be no costs of the application. S.N. LEDERMAN J. K.E. SWINTON J. K.M. van RENSBURG J. |
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