September 2017

13.2 - Appeals

The Social Benefits Tribunal (SBT) is part of the Social Justice Tribunals Ontario (SJTO) cluster.

The SBT hears appeals under the Ontario Works Act, 1997 (OWA) and the Ontario Disability Support Program Act, 1997 (ODSPA) regarding decisions affecting eligibility for or the amount of social assistance subject to a prescribed list of exceptions. The SBT also considers challenges to the OWA and ODSPA under the provisions of the Ontario Human Rights Code.

There are two parts to the rules that govern the procedures of the SBT. Part I includes the SJTO Common Rules of Procedure and Part II includes the SBT Rules of Procedure. Both parts should be read together.

All references to forms in this Directive are to SBT forms.

More information on the SJTO Common Rules of Procedure, SBT Rules of Procedure, SBT Practice Directions and SBT Forms may be accessed at:

http://www.sjto.gov.on.ca/sbt/

Summary of Policy

No appeal to the SBT may be commenced by an applicant or recipient unless an internal review has been requested. An appeal should be made within the prescribed period after an internal review.

Most decisions of the Director affecting eligibility for or the amount of income support are appealable to the SBT. However, some decisions, including prescribed decisions under the Act’s regulations, are not appealable.

The SBT can order payment of interim assistance if it is satisfied that the recipient will suffer financial hardship during the time it takes to complete the appeal and that conditions of eligibility, other than those under appeal have been met. Written submissions must be filed with the SBT within the prescribed time period. Where there is written or documentary evidence, it must be provided to all parties within the prescribed time period.

The SBT is required to provide a written decision within the prescribed time period. The Director is required to implement the SBT decision even if the Director plans to challenge it by way of a reconsideration application or Divisional Court appeal. The SBT’s decision remains in effect pending the outcome of a reconsideration hearing or court ruling.

A reconsideration of an SBT decision can be requested by a party to the appeal within the required time period. An appeal of an SBT decision can be made to Divisional Court in certain circumstances, with the required documentation, within the required time period.

Legislative Authority

Section 2, 60, 65 - 67 of theOntario Works Act, 1997
Sections 19 - 31 of the ODSP Act, 1997
Sections 56 - 71 of the ODSP General Regulation

Summary of Directive

This Directive outlines processes, roles and responsibilities when dealing with appeals to the SBT and subsequent appeals to the Superior Court of Justice, Divisional Court.

Intent of Policy

To outline the statutory steps involved in challenging and appealing a decision affecting eligibility for or the amount of income support (e.g. decisions to suspend, cancel, reduce or deny income support).

Application of Policy

Standards

  • Decisions must be made in accordance with legislation and policy and in a fair and consistent manner.
  • An applicant/recipient must be provided with written notice of any decision affecting eligibility for or the amount of income support. The notice must provide reasons for the decision and advise of the availability of an internal review and the subsequent right to appeal to the SBT where there is an appealable decision.
  • Wherever possible, ODSP staff should attempt to resolve any issue that the applicant/recipient may raise prior to providing the applicant/recipient with a copy of the decision.
  • The Appeal form (Form 1) must be available at the local ODSP office.

Appeals Must Be Preceded by a Request for an Internal Review

An appeal cannot proceed unless an internal review has been requested by the applicant/recipient. An appeal cannot proceed if an internal review request is withdrawn by the applicant/recipient because a request that is withdrawn is deemed not to have been made.

An applicant/recipient may request a review of any appealable decision affecting eligibility for or the amount of income support. This request must be made within 30 calendar days of receiving the notice of decision. Notice is deemed to be received 3 working days after mailing. If the Director is satisfied that the internal review was not requested in time because of circumstances beyond the person’s control, the Director may extend the period for requesting an internal review.

The Director has 30 calendar days from receipt of the internal review request to complete it and to provide written notice of the internal review decision.

Jurisdiction of the Social Benefits Tribunal

Most decisions affecting eligibility for or the amount of income support, (including Assistance for Children with Severe Disabilities) are appealable to the SBT.

The SBT cannot hear an appeal about:

  • A decision respecting discretionary income support.
    • A decision to deny the Discretionary Benefit for low-cost energy-conservation measures is not appealable to the SBT. However, if the recipient disagrees with the decision and requests an internal review, the internal review should be completed.
  • A decision of the Lieutenant Governor in Council respecting income support in exceptional circumstances.
    • This refers to income support provided based on an Order-in-Council, where a client may not otherwise be eligible.
  • A decision to provide a portion of income support directly to a third party.
    • Examples include direct payment of rent to a landlord and direct payment of heat or utility costs.
  • A variation, refusal or cancellation of income support caused by an amendment to the ODSP Act or the General Regulation.
    • This would apply where the person is really objecting to a change in the legislation or regulation, but not where there is an issue as to how the changed eligibility rules apply to him/her.
  • A prescribed decision.
    • The following cannot be appealed:
      • a decision of the Director not to extend the time for an internal review;
      • a decision to refuse, suspend, cancel or reduce income support based on the death of a member of the benefit unit;
      • a determination that an application has been withdrawn when requested information necessary to determine eligibility as a person with a disability has not been provided in ninety days and no extension of time is given to provide the information;
      • a decision to establish a date to review a person's disability status.
      • decisions relating to special payments (i.e. payments of retroactive income support made to those who were affected by the previous 4-month limit on arrears for new grants), as set out below:
        • a new determination of the date of grant;
        • the amount of the special payment; and
        • a decision to apply a special payment to an outstanding overpayment.
      • a decision that the date of grant is on or before the day on which the application is completed.
      • a decision that the date of grant is on or before the 1st day of the month following the completion of an application, for persons in receipt of Ontario Works.
    • No appeal to the SBT is available on a decision regarding employment supports.

The SBT cannot make a decision in an appeal that the Director does not have the authority to make.

The SBT cannot inquire into or make a decision concerning the constitutional validity of a provision of an Act or Regulation; or the legislative authority for a Regulation made under an Act. These issues may be raised in a court proceeding.

Human Rights Code Claims

An appellant who intends to raise a Human Rights Code challenge as part of their appeal to the SBT must follow the SBT Rules of Procedure.

The SBT is responsible to provide the Director with a copy ofthe Notice of Human Rights Code Claim (Form 4) to the Director prior to the appeal hearing.

The SBT could independently identify a Human Rights Code issue and direct the parties to the appeal to provide submissions or be prepared to respond to the issue.

Where a Human Rights Code is raised, Iit is important that Legal Services Branch (LSB) be consulted. A copy of theappeal documents should be forwarded to LSB along with any updateinformation as it is received. Case Presenting Officers will continue to make written and oral submissions on behalf of the Director as it relates to the substantive merits of the ODSP appeal.

The SBT can refuse to hear an appeal if it determines that the appeal is frivolous or vexatious. (e.g.where a person has repeatedly filed appeals that lack merit).

Filing an Appeal

A request for a hearing by the SBT must be made using the approved Appeal form (Form 1). The appellant must include reasons for the appeal on the form.

The applicant/recipient has 30 calendar days to appeal a Director’s decision to the SBT from the earliest of the:

  • day the prescribed time for completing the internal review expires;
  • day the results of the completed internal review are received; and
  • day the results of the completed internal review are deemed to have been received.

The SBT may extend the time for appealing a decision after an internal review if it is satisfied that there are apparent grounds for an appeal and that there are reasonable grounds for allowing the extension. The SBT will review requests for extensions on a case-by-case basis.

No appeal to the SBT can be commenced more than 1 year past the date of the Director’s decision on an internal review.

Interim Assistance

The SBT can order payment of interim assistance if it is satisfied that a recipient will suffer financial hardship during the time it takes to complete the appeal and that conditions of eligibility, other than those under appeal have been met. To request interim assistance, recipients must complete the "Application for Interim Assistance" section (Part 4) on the Appeal form (Form 1).

There is no authority in the Act to order interim assistance for an ODSP applicant. He/she can apply for Ontario Works, if not already receiving it. If he/she is refused Ontario Works, that decision can be appealed to the Tribunal. The SBT can make interim assistance orders for varying periods of time, up to the date the SBT’s decision is delivered. Under no circumstances can the SBT order the Director to pay more than is allowed under the General Regulations.

Interim assistance orders must be followed. Only the SBT can cancel or vary an interim assistance order. If the office disagrees with the SBT’s order, the reasons should be set out in writing, including information about the appellant's financial circumstances, for the SBT to consider.

In addition to the amount otherwise payable for income support in the case, interim assistance payments should include health benefits such as drug benefits for all beneficiaries, dental benefits for all eligible beneficiaries, mandatory special necessities for diabetic supplies, surgical supplies and dressings and transportation reasonably required to obtain medical treatment. Where applicable, an amount not exceeding the maximum prescribed in the regulation for the care and feeding of a guide dog should also be provided.The Director may object to an interim assistance order by filing an objection in writing with the SBT and also delivering the objection to the appellant within 7 calendar days of receiving the order. The interim assistance order remains in effect unless the SBT grants the objection and amends or reverses the order.

Responding to an Appeal

The SBT is responsible for delivering the Appeal form (Form 1) to the Director and any other parties to the proceedings.

The Director is responsible for completing the Response to Appeal (Form 3) within 30 calendar days of receipt of the Appeal form (Form 1) and delivering it to the appellant and any other parties to the appeal, in addition to filing it with the SBT within the 30 day timeframe.

The Response to Appeal (Form 3) must include the following information:

  • provide contact information for the Director’s representative (e.g. Case Presenting Officer) and whether he/she will attend the hearing;
  • identify any preliminary objections or jurisdictional issues;
  • where the Director intends to rely on a written submission, the Director must indicate whether the Director will provide submissions on the merits of the appeal and documents relied on; or
  • where the Director does not intend to rely on a written submission, confirm this in the Response to Appeal.

Written Submissions

Where the Director intends to rely on a written submission, it must be filed with the SBT no later than 30 calendar days after receiving the Appeal form (Form 1).

Where the Director has filed a written submission on the merits of an appeal and the Director’s position changes, and the Director intends to raise new issues or intends to rely on additional facts, the Director must deliver an amended written submission to the appellant and file it with the SBT no later than 30 calendar days before the hearing.

Where the Director's position changes with respect to a preliminary objection or jurisdictional issue as identified in the Response to Appeal (Form 3) or where new jurisdictional issues or preliminary objections are identified, the Director must deliver an amended Response to Appeal to the appellant and file it with the SBT at least 30 calendar days before the hearing.

Unless the parties agree otherwise, where the Director intends to rely on any further evidence or submissions in reply to the evidence and submissions of the appellant, it must be delivered to the appellant and filed with the SBT no later than 10 calendar days before the hearing.

Where the Director does not intend to rely on a written submission, this must be confirmed in the Response to Appeal (Form 3).

Unless the parties agree otherwise, where the appellant intends to rely on written submissions and/or non-medical documents, this must be provided to all parties to the appeal and filed with the SBT at least 20 calendar days before the hearing.

Recovery of Interim Assistance

If the SBT upholds a decision that the recipient is not a person with a disability as a result of a medical review, the interim assistance they received is considered an overpayment. However, in this circumstance, recovery of the interim assistance is limited to the difference between the interim assistance paid and the amount that the recipient would have been eligible to receive under Ontario Works for the same period. The balance is recommended for write-off (see ODSP Directive 13.3 - “Recovery of Interim Assistance”).

Disclosure of Witnesses

Where the Director intends to call witnesses at the hearing, a list of all witnesses must be provided to the SBT and all other parties to the appeal no later than 20 calendar days before the hearing date.

Attendance at the Hearing

Where an appellant is notified of a hearing and fails to attend, the SBT may proceed in the appellant’s absence and:

  • deny the appeal where the appellant has failed to appear without reasonable case. The SBT determines what constitutes “reasonable cause”;
  • decide the appeal based on the materials before it; or
  • take any other action it considers appropriate.

The Director may participate in the hearing by filing written submissions and/or attending the hearing. If the Director intends to appear at the hearing, the SBT and the appellant must be advised in writing as soon as possible after receiving the Notice of Hearing and no later than 7 calendar days before the hearing date.

Onus

It is the appellant’s responsibility to satisfy the SBT that the decision of the Director is wrong.

The appellant must present his/her case first except where the Director consents to present first.

Parties to the Appeal

The Director, the applicant/recipient who requested the hearing and other persons as SBT may specify, are parties to the proceedings before the SBT. The Director can be represented by local staff and/or legal counsel in addition to providing a written submission.

Language Interpreters

Hearings before the SBT are conducted in English and French. If a party or witness does not speak or understand either of these languages, the SBT will provide an interpreter to assist that person in the hearing upon request.

If a person wishes to bring his or her own interpreter to a hearing, they may do so. The role of the interpreter is to impartially convey the meaning of everything which is said without omission.

If it is suspected that an interpreter is not conveying what was said, or if there is some doubt about the objectivity of the interpreter, then ODSP staff should raise these issues with the presiding SBT member.

In such cases, ODSP staff may ask the Tribunal member for permission to question the interpreter to satisfy themselves that the interpreter is able to provide accurate translations in a professional and objective manner. The following questions could be asked of an interpreter, under oath, at an SBT hearing:

  1. Do you know the appellant?
  2. In what capacity do you know the appellant -- are you related, are you a member of the same community organization that the appellant is a member of?
  3. How long have you known him/her?
  4. Are you also going to be a witness for the appellant today?
  5. Do you know what this case is about?
  6. Have you formed an opinion about this case?
  7. What is the language/dialect that you will be translating into English/French today?
  8. How is it that you know that language/dialect?
  9. What level of education have you attained in that language/dialect?
  10. Can you read, write and speak in that language/dialect proficiently?
  11. What level of education have you attained in English/French?
  12. Can you read, write and speak English/French proficiently?
  13. Do you understand the role of an interpreter? The answer should be “to listen carefully to what is said, and say exactly the same thing, no more, no less, in the other language/dialect”.

If after asking these questions, ODSP staff are still in doubt as to the competency or objectivity of the interpreter, then a formal verbal objection should be made to the presiding Tribunal member. Staff should object to the hearing proceeding with the interpreter because of whatever problems the examination uncovered. It will be up to the presiding Tribunal member to decide whether or not to proceed with the hearing under these circumstances. If the decision is to proceed, then the staff member’s objection will be on the record. This can form the basis of a reconsideration application or appeal to court should the appeal be decided in the appellant’s favour and should the Director decide to challenge it.

ODSP staff involved in the case should look at the decision when it comes in, and consider whether it should be referred to Legal Services Branch to request a reconsideration hearing.

Scheduling a Hearing Date

The SBT is required to provide all parties with written notice of the date and time of a hearing within 60 calendar days of receiving the Appeal form (Form 1).

This does not mean that hearings have to take place within 60 calendar days of the appeal being initiated. The parties can contact the SBT with respect to the scheduling of hearings based on various considerations, including complexity of the issues under appeal.

Documentary Evidence

If the appellant intends to introduce written or documentary evidence at a hearing, the materials should be provided to all other parties and to the SBT at least20 calendar days before the hearing.

The Director must provide the SBT and any other parties any supplementary submissions or response to the appellant’s written submission/evidence at least 10 calendar days before the hearing.

Appeal of a Disability Decision

The internal review of a decision to deny ODSP income support because a person did not meet the definition of ‘a person with a disability’ under the Act is conducted by the Disability Adjudication Unit (DAU).

If the DAU confirms, at the internal review stage, that the applicant is not a person with a disability, the applicant can appeal the decision to the SBT within 30 calendar days of receipt of the internal review decision.

The DAU is responsible for responding to that appeal on behalf of the Director.

Filing New Medical Information in a Disability Appeal

An appellant can submit additional medical and supporting information during the appeal of a decision that a person is “not a person with a disability”. Medical and supporting evidence should relate to the appellant’s medical condition at the date of the Director’s decision.

New medical and supporting information must be submitted to the DAU and filed with the SBT at least 30 calendar days before the hearing together with a completed New Medical Information form (Form 5).

The DAU reviews and considers all documented evidence being submitted prior to the SBT hearing. Based on the review of this evidence, the DAU could find the appellant to be “a person with a disability” prior to the SBT hearing.

If the new medical evidence demonstrates that the appellant is eligible based on a new medical condition or an aggravation of the appellant’s earlier presenting condition, this information will be considered by the DAU adjudicator, and could result in a later date of grant based on the date that the new medical information was received by the DAU.

SBT Decisions

The SBT is required to deliver a written decision within 60 calendar days following receipt of the last evidence presented in the appeal. In an oral hearing, the last evidence would be provided at the hearing unless the SBT specifically makes an order allowing additional material to be filed after the hearing. In a paper hearing, the last evidence would be provided on the date the parties were required to provide their written submissions and documentary evidence to the SBT.

In its decision, the SBT may:

  • deny the appeal;
  • grant the appeal;
  • set a date for a medical review;
  • grant the appeal in part; or
  • refer the matter back to the Director for reconsideration in accordance with any directions the SBT considers proper.

The Director must implement the decision of the SBT, even if the Director plans to challenge it by way of a reconsideration application or court appeal. The SBT’s decision remains in effect pending the outcome of a reconsideration hearing or court ruling.

Request for Reconsideration and Variation of SBT Decision

A reconsideration of an SBT decision can be requested within 30 calendar days of receiving the decision by either the Ministry or the appellant where the party is of the opinion that the SBT has made an error in its decision. To request a reconsideration of an SBT decision, an Application for Reconsideration (Form 2) must be completed and filed within the prescribed time.

The SBT may extend the time for requesting a reconsideration hearing if it is satisfied that there are apparent grounds for reconsideration and that there are reasonable grounds for applying for the extension.

No request for reconsideration may be made more than 1 year after the decision.

The other party to the appeal may respond to the request for a reconsideration within 15 calendar days of receiving the copy of the request, indicating reasons why a reconsideration hearing should not be held. There is no opportunity to object to the holding of a reconsideration hearing at the outset of the hearing, so any objections should be made in writing within this 15 day period.

The SBT will decide whether to conduct a reconsideration hearing no later than 60 calendar days from the receipt of the request. The SBT’s decision will be provided in writing.

The Director may consider requesting a reconsideration where the Director believes that the SBT has made an error in law in its decision based on the facts of the case or the SBT’s interpretation of the Act or regulations. Such requests are to be made through the Legal Services Branch.

Reconsideration requests pertaining to a disability determination decision are to be made through the Ontario Disability Support Program Branch.

In a reconsideration hearing, the person requesting the reconsideration presents his or her case first. Any additional written submission or evidence must be provided to the SBT and other party twenty calendar days prior to the hearing date.

The other parties must provide any written submissions 10 calendar days before the hearing.

Where on reconsideration the SBT rules that the recipient was not eligible for income support, the entire amount of income support paid will be considered an overpayment.

Where the SBT determines that the recipient was eligible to receive income support, but at a lower amount than was paid, the difference between these two amounts will be considered an overpayment.

Notice must be given to the recipient of the amount of the overpayment, the reason, the period for which it was incurred and their right to appeal. If a recipient had a dependent spouse when an overpayment was incurred, the Director must also give notice in writing to the spouse respecting the overpayment.

Appeal to the Superior Court of Justice - Divisional Court

An appeal of an SBT decision may be made to Divisional Court within 30 days after receiving the decision only where it is believed that the SBT has made an error in law.

If a reconsideration hearing has been requested, an appeal to the Divisional Court cannot be made until the SBT has either denied a reconsideration hearing request or held the reconsideration hearing and provided its decision.

Related Directives:

13.1 Notice of Decision and Internal Review
13.3 Recovery of Interim Assistance

SJTO Common Rules of Procedure, SBT Rules of Procedure, Practice Directions and SBT Forms:

http://www.sjto.gov.on.ca/sbt/