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Ontario Disability Support Program (ODSP) Law
(01 January 2016)

Chapter 11 - Director Decisions

  1. Overview
  2. Cancellation, Suspension and Reduction Decisions
    (a) Clarification of Terminology
    CASENOTE RE Ontario v Eluck
    (b) Conditions of Eligibility
    (c) Consequences of Non-Compliance
    . Overview
    . General Rule
    .. Where Single-Member Benefit Unit
    .. Where Multiple-Member Benefit Unit
    .. Three-Month Delay in Implementation
    . Non-Compliance with Information Duties
    .. CASE NOTE re Rea v Simcoe County
    .. CAUTION Re ERO Requests
    .. NOTE Re "Cheque-Holds"
    . Workfare Non-Compliance
    . Improvident Disposition of Assets
    . Failure to Realize Available Resources
    (d) Notice of Decision
    . Overview
    . Contents of Notice
    . Reasons for Decision
    .. CASE NOTE re Gray v Ontario (ODSP)
    .. TACTICAL NOTE
    .. COMMENT
    (e) Service of Decision
    . Overview
    . TACTICAL NOTE
    . Service of Notice of Decision
    . Service of Other Documents
    . Counting Time
    (f) When Decisions are "Made", "Effective", "Received" and "Final"
    . Overview
    . When a Decision is "Made"
    . When a Decision is "Received"
    . When a Decision is "Effective"
    . When a Decision is "Final"
    . The Effect of Timeline Extensions on Date of "Finality"
    . Extending and Missed Timelines
    (g) Re-Application and Re-Instatement
    . Overview
    . Re-Instatements
    . Re-Applications
    .. Overview
    .. Re-Applications and Res Judicata
    .. Re-Application Within One Year
    .. COMMENT
  3. Overpayments
    (a) Overview
    (b) Notice of Overpayment
    (c) Appealability of Overpayment Decision
    (d) Amount of Overpayment For Excess Assets
    IMPORTANT NOTE
    (e) Overpayment Recovery by Deduction
    (f) Overpayment Recovery Through the Courts
    . Overview
    . Use of Court Collection Procedures
    . Right to Sue
    . Overpayment Recovery as "Debt Due to the Crown"
    (g) Joint Overpayment Liability Amongst Recipient and Spouse
    . Overview
    . Notice of Overpayment Procedures
    . Lawsuit and "Debt Due to the Crown"
    . Overpayment Created by Default in Agreement to Reimburse
  4. Appealable and Non-Appealable Decisions
    (a) Overview
    (b) Appealable Decisions
    (c) "Non"-Appealable Decisions
    (d) Date of Grant Appealability and Non-Appealability
    . Overview
    . Date of Grant Set ON OR BEFORE Date Application is Complete
    . Date of Grant Set AFTER Date Application is Complete
    . Transition Decisions
    (e) Disputing "Non-Appealability"
________________________________________


1. Overview

When an ODSP Director decides that an applicant, recipient or a member of their "benefit unit" has failed to meet a financial or informational "conditions of eligibility" they must refuse, cancel, suspend or reduce (depending on the circumstances) income support [Act s.9; Reg s.23]. If the eligibility decision relates to past periods of income support then the decision will typically be one of "overpayment".

The procedures surrounding such Director decisions are the subject of this chapter.

Consequences for non-compliance with "workfare" and employment-related duties are discussed in Ch.13 "Workfare and Employment Supports".

Where such a decision is "appealable" (s.4 below), then the Director is obliged by law to issue a "Notice of Decision", which triggers the availability of the "internal review" and appeal procedures through the statutory routes established in the legislation. In other cases where the "appealability" is questionable or when not all required legal issues can be considered in a statutory appeal, then other legal remedies may be available. These issues are discussed in Ch.12: "Appeals and Other Remedies".


2. Cancellation, Suspension and Reduction Decisions

(a) Clarification of Terminology

As per the discussion of the Eluck case (below), the terms "cancellation", "suspension" and "reduction" have distinct (though perhaps not settled) meanings in terms of ODSP eligibility. The Eluck case reveals an unfortunately vague use of language on these issues in the Act and General Regulation.

Hoping to aid clarity, I will use these terms in their everyday meanings, as follows:
CANCELLATION (or Refusal): A complete termination of eligibility and income support, requiring re-application to be re-established. When used with respect to an applicant (as opposed to a recipient), the term "refusal" has an equivalent meaning.

SUSPENSION: A temporary ceasing of the payment of income support. When used in relation to an applicant (as opposed to a recipient), the term "temporary ineligibility" has an equivalent meaning. The most common cause of suspension is alleged workfare and employment-related non-compliance.

REDUCTION: A partial decrease in the amount of income support paid. Reductions can be temporary or permanent. The most common situation of reduction is where one member (out of several) in the benefit unit is alleged to be non-compliant with one of several "conditions of eligibility", in which case income support for the whole benefit unit continues, but it is reduced "by an amount equal to the budgetary requirements and benefits for the [non-compliant] person".

OVERPAYMENTS: While "cancellations, suspensions and reductions" relate to ONGOING income support and eligibility, these topics closely relate to "overpayments" (see s.3 below). However, overpayments are re-assessments of PAST eligibility and income support provided. They are in the nature of a debt owing by the recipient.
. CASENOTE RE Ontario v Eluck

The case of Ontario (Director, ODSP) v Eluck [2001] OJ #3764 (QL) (Div Ct) dealt with an ODSP recipient whose disability eligibility was first established under the previous Family Benefits Act (FBA) as a "permanently unemployable" person. He was "grandparented" (made automatically eligible) into ODSP eligibility by being eligible for FBA when the new ODSP program came into force.

When he became incarcerated for five months, the Director "cancelled" his eligibility at the date of the commencement of the incarceration. In addition to wiping out his income support for the period of the incarceration, which was expected and not objected to, the decision had the effect of terminating his ODSP eligibility as any 'break' in ODSP eligibility has the effect of ending his 'grandparented' status (see Ch.2, s.8: "Claimants: Substitutes for PWD Status"). Persons who lose their grand-parented status have to re-apply for ODSP as a new applicant, with no guarantee of winning.

One provision considered in Eluck from the Regulation [s.9] reads "A person is not eligible for income support while the person [is incarcerated]" [also Act s.9], and another [s.35] sets out budgetary requirement deductions at the beginning and ending of periods of incarceration. The court interpreted these provisions to mean that there was no legislative intention to totally 'cancel' eligibility in the event of incarceration - only to 'suspend' it - thus preserving "eligibility" despite the fact that no income support might be payable for a time. Therefore Eluck's "grand-parented" eligibility was not lost.

While the court's decision turns very much on the specific provisions dealing with the effect of incarceration, it does stand for the proposition that there is an intermediate stage of 'termination' of income support, that of "suspension".

The ruling also focusses attention on the confusing variety of terms used in s.9 of the ODSP Act ("Failure to Comply"), which contains a range of related terms, including:
  • "refuse to grant",

  • "declare ...ineligible for the prescribed period",

  • "reduce or cancel the income support ... or part of it", and

  • "suspend the income support or ... part of it".
Note: These terms are repeated verbatim ("assistance" being substituted for "income support") in the Ontario Works Act s.14. As such the principles stated in Eluck are transferrable to the welfare situation.
It is a basic principle of statutory interpretation that whenever different terms are used, they are to be taken as having different meanings.

(b) Conditions of Eligibility

A partial list of "conditions of eligibility" violations (and the chapters which discuss them) includes:
  • "excess income": chargeable income greater than budgetary requirements (Ch.7 "Income Rules")

  • "excess assets": assets in excess of maximums (Ch.8 "Asset Rules")

  • "failure to provide information" (Ch.6 "Information Eligibility")

  • workfare failures and refusals of a non-disabled dependent adult or spouse (Ch.13 "Workfare and Employment Supports")

  • improvident disposition of assets (Ch.8 "Asset Rules")

  • failure of duty to realize resources (Ch.8 "Asset Rules").
(c) Consequences of Non-Compliance

. Overview

Of course, in situations of financial ineligibility (excess income and assets) the consequence is the cancellation (for recipients) or refusal (for applicants) of eligibility to the entire "benefit unit" (the whole concept of the "benefit unit" is to aggregate related co-resident groups of people for financial assessment and income support purposes).

Otherwise the consequences of non-compliance with a "condition of eligibility" can differ according to the particular type of non-compliance, though there is a general rule. The general and the specific rules are discussed below.

. General Rule

- Where Single-Member Benefit Unit

The general rule is that for a single member benefit unit, income support shall be cancelled on non-compliance with any condition of eligibility [Reg s.23(2)].

- Where Multiple-Member Benefit Unit

Where the benefit unit contains dependents (eg. a spouse, dependent minor or dependent adult) and only one member is non-compliant, then the budgetary requirements of the benefit unit "shall be reduced by an amount equal to the budgetary requirements and benefits for the [non-compliant] member [Reg s.23(2)]. Essentially, the non-complying member is "split-off" or deemed 'not to exist' for purposes of "budgetary requirement" (ie. income support) calculations.

It is important to note however that the non-compliant member is only 'split-off' for purposes of budgetary requirements - NOT for purposes of income and asset assessment. The income and assets of the non-compliant member can still "count" against the remaining members of the benefit unit.

Further, the calculation of the reduction is not legally obvious - though a practice has developed. Is the reduction what the non-compliant member would get as a single applicant? Or does it mean the difference between that of the entire benefit unit with - and then without - them? The more generous interpretation is the latter as it has a less drastic impact of the budgetary requirements of the remaining members, and is more consistent with a generous interpretation of benefits-conferring legislation: Rizzo v Rizzo Shoes [1998] 1 SCR 27. It is also the one adopted by Directors in practice.

- Three-Month Delay in Implementation

Despite a failure to meet a condition of eligibility - resulting in a pending cancellation, suspension or reduction - the Director MAY continue income support for a further three months "if the recipient has dependents included in the benefit unit at that time" [Reg s.53(3)].

. Non-Compliance with Information Duties

Persistent non-compliance with information duties by a single recipient results in cancellation. Surprisingly, information non-compliance by an individual member of a multiple-member benefit unit, which would have been thought to attract the general "splitting-off" rule discussed above, also results in complete benefit unit ineligibility (see Rea, below).

CASE NOTE re Rea v Simcoe County

In the recent case of Rea v Simcoe County [2005] OJ #5543 (Ont Court of Appeal) a single parent recipient argued that her failure to provide updated eligibility information (the decision is silent as to what information was not provided) should result in HER ineligibility only - preserving the eligibility of her child in accordance with OW Reg s.35 [ODSP Reg s.23] of the Regulation ("Non-Compliance with Other Conditions of Eligibility') - ie. a "split-off" as discussed above. The Court disagreed, finding that the information duties set out in OW Reg s.14 [ODSP Reg s.12] and OW Act s.7(3)(c) [ODSP Act s.5(1)(d)] contained their own consequences for non-compliance: complete benefit unit cancellation - and that:
This requirement is central to the entire scheme of the statute and its purpose would be undermined if the appellant's suggested interpretation of the Regulation were to be accepted.
The court reasoned - in a cursory manner - that without financial information compliance the welfare administrator would not even have a basis upon it could calculate the financial need of the remaining members of the benefit unit.

I find the brief reasoning of the Court in Rea less than compelling. There certainly are practical ways in which the income, assets and budgetary requirements of children can be determined - and it is done all the time with welfare (Ontario Works) independent minor applicants. Further, finding that OW Reg s.35 [ODSP Reg s.23] is inapplicable to the situation is specious reasoning - as OW Reg s.14 [ODSP Reg s.12] and OW Act s.7(3)(c) [ODSP Act s.5(1)(d)] both use the word "person" and not "benefit unit" to define the consequences of non-compliance. Such wording does not reflect even an ambiguity - much less firm grounds to disentitle an entire benefit unit and thereby jeopardize the integrity of the family (financial security is a prime factor in determining whether to apprehend on child protection grounds).

This issue considered in Rea relates very closely to that of compelled spousal dependency discussed in the welfare (Ontario Works) program at Appendix 4: "The Concept of Spousal Dependency" - and illustrates starkly the injustice complained of against that concept and practice - only with perhaps even greater potential impact on a vulnerable minor.

Generally, the case further increases the already formidable pressure on applicants and recipients to comply with the already excessive and illegal information and evidence demands embodied in the ODSP institutional culture (see Ch.6 "Information Eligibility: The Legal Problem").

CAUTION Re ERO Requests

Recipients should be careful with unusual information requests to determine where the request came from. Requests from "Eligibility Review Officers" (EROs) (see Ch.6 "Information Eligibility: Eligibility Review Officers") are often the commencement of a fraud investigation (despite what the worker might say). Further, non-compliance with an ERO request may constitute a prosecutable offence (see Ch.14 "Fraud and Prosecutions").

NOTE Re "Cheque-Holds"

Where non-compliance is caused by delay in providing information or documentation (eg. bank book update, birth certificate, etc) - and can likely be remedied by the recipient quickly - it is common practice for an ODSP worker to informally "hold" or suspend cheques until compliance is forthcoming. It is dubious whether this practice - really a form of suspension - is legal, as it is done without any proper Notice of Decision. However 'reinstatement' in such cases is typically fully retroactive, and the practice (IF the underlying information or evidence request is legitimate: see Ch.6 "Eligibility Information") can be viewed as a practical and efficient one for all concerned.

However, if a cheque-hold continues unremedied for any appreciable time it will likely be converted by the Director into a formal (and retroactive) Notice of Decision, in which case even later correction of the situation (again, IF it was a legitimate request in the first place) may leave a period of ineligibility.

If the problem persists and there is no formal Notice of Decision forthcoming, for appeal purposes recipients should treat a 'cheque-hold' as though it were "properly" done by Notice of Decision. The failure of the Director to issue proper notice should not act as a bar to a recipient exercising their appeal rights. Tactics in this situation are very similar to those adopted when there is dispute over whether a Decision is "appealable" (see "Notice of Decision" immediately below - and s.4(e) "Appealable and Non-Appealable Decisions: Disputing "Non-Appealability"", below).

. Workfare Non-Compliance

Workfare and employment-related non-compliance most often results in suspensions a varying length (three months for first violation, six months for subsequent). These are discussed in Ch.13: "Workfare: Non-Compliance".

. Improvident Disposition of Assets

This topic, discussed [further in Ch.8, s.7: "Asset Rules: Improvident Disposition of Assets"] relates to situations where recipients unnecessarily "reduce" their assets and thereby establish asset eligibility. On violation of this duty, the Director may either [Reg s.22(1)]:
  • cancel eligibility, or

  • "reduce the amount of the amount of income support to compensate for the inadequate consideration or the value of the assets assigned or transferred".
As can be seen from the wording, the latter provision gives the Director a lot of discretion in how they deal with these situations. In these situations it is common for Directors to cancel income support and expect the claimants to survive on their own for a period reflective of the value of the asset
improvidently disposed of (ie. for as long as it SHOULD have supported them). Re-applications made before that period has expired will be viewed critically.

. Failure to Realize Available Resources

Failure realize available resources (either income or assets) is discussed in Ch.8, s.6: "Asset Rules: Duty to Realize All Available Financial Resources". Non-compliance here may result in refusal or cancellation of ODSP benefits, or - more commonly - the reduction of income support by the amount of the available income or resource (ie. the unrealized resource will be "deemed" to be in-pay and deductions made accordingly) [Reg s.11].

(d) Notice of Decision

. Overview

The Director is obliged to provide any applicant or recipient against whom a "appealable" decision has been made with a written "Notice of Decision" [Act s.19; Reg s.56]. Subject to some exceptions these are any decisions "affecting eligibility for or the amount income support, assistance under section 49 [Assistance for Children with Severe Disabilities [see Ch.5] or extended health benefits under section 49.1 [see Ch.4: "Benefits"] [Act s.21]. The primary function of a Notice of Decision is to formally advise the recipient of the reasons for the decision and the remedial procedures available (ie. internal review and appeals).

The structure of this notice provision is odd in that it allows the Director to decide which of its decisions are appealable and which aren't - a clear conflict of interest and a plain potential for injustice. Further - and not that it is an excuse - the Director is hindered in this process by the limitations of its computer system, which seem to offer a limited "menu" of decision notices.

In any event, parties should not let lack of proper written notice deter them from commencing the internal review and appeal processes, and should simply adopt a 'common sense' approach to identifying when they have learned of a negative decision and act accordingly. In my experience, both Directors and the Tribunal tend to respond appropriately in processing internal review requests and appeal documentation in such cases. See the discussion at s.4(e) below: "Appealable and Non-Appealable Decisions: Disputing Non-Appealability" for a tactical discussion.

. Contents of Notice

"Notices of Decision" must include [Reg s.56]:
  • the Decision itself (ie. refusal, cancellation, suspension, reduction or overpayment);

  • the "effective" date of decision (see "When a Decision is Effective", below);

  • "Reasons" for decision (see next sub-section);

  • an advisory that the applicant or recipient must request an "internal review" (IR) of the decision in order to later appeal it [Act s.19; Reg s.56];

  • the timeline for requesting an internal review;

  • the timeline for filing an appeal to the Tribunal.
. Reasons for Decision

The Director is notorious for issuing computer-generated standard form "Notices of Decision" that do little or nothing to advise the applicant or recipient what the problem is, or how it might be fixed (if it can). Such notices may include references to broadly-applicable (and often irrelevant) sections of the legislation, use of internal ODSP jargon (ie. "fail to provide information") -without specific details, and other practical omissions.

It has been my practice for years when filing Notices of Appeal with the Tribunal to state the basis of the appeal as only "(t)he Director has erred in fact-finding and law", simply for the fact that - based on the unhelpful Notices of Decision provided - my client and I have no better basis other than speculation upon which to state our disagreement. Without independent inquiries made to the worker the Director's full reasons are not usually known until they serve their written submissions for use in the appeal hearing - by which point they are absurdly late.

CASE NOTE re Gray v Ontario (ODSP)

The issue of the adequacy of Notices was considered by the Ontario Court of Appeal in Gray v Ontario (ODSP) [2002] OJ #1531 (QL) (2002). While Gray considered the duty in the context of the Social Benefits Tribunal's similar duty to provide reasons for decision in its rulings, the principles are largely applicable to Director's "Notices of Decision" as well. In Gray the legal requirement under consideration was expressed as:
... the Tribunal's decision shall include the principal findings of fact and its conclusions based on those findings" [ODSP Reg s.67(3)].
While the equivalent duty on the Director is only to provide "reasons for the decision" [Reg s.67(2)(b)], and the burden of providing "reasons" might be argued to be higher for a quasi-judicial body such as the Tribunal rather than a Director exercising an administrative role - the purpose of any "reasons" requirement is the same in either context. This point was made clear by the Court of Appeal in Gray when it quoted the following passages with approval:
Recently, the Federal Court of Appeal considered the nature and extent of a statutory duty to give reasons in Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (C.A.). Sexton J.A. said at pp. 35-36:

The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:

Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision. [Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at p. 845.]

Reasons also provide the parties with the assurance that their representations have been considered.

In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.

...

The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons." [See J.M. Evans, Administrative Law: Cases, Text and Materials (4th ed.), (Toronto: Emond Montgomery, 1995), at p. 507.]

The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
It is plain from Gray that "reasons for decision" must be adequate to serve their purpose, which is to inform the party of WHAT the decision is and WHY it was made, both so that the party might remedy any legitimately-based shortcomings (if they can) and - on appeal - so that the parties and Tribunal know what the issue is before them.
Case Note:
In the case of Toronto (City) v. R & G Realty Management Inc. (Div Ct, 2009), the court [citing Gray v Ontario (Ont CA, 2002)] stated as follows on the impact of a failure of a Tribunal to provide adequate reasons for it's decision:
[38] In Dunsmuir, at para. 47, the Supreme Court of Canada held, “A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to the outcomes.” The Board in this case completely departed from the policy set out in ss. 8(b)(i) of the Official Plan, without articulating any reasons for doing so. Such a decision cannot be said to be “reasonable.” Likewise, the Board provided no reasons for adopting the opinion of R & G’s expert and rejecting the evidence of the City’s expert. In the absence of such reasons, it cannot be determined whether the outcome is reasonable. Further, the failure to state reasons for a decision, rather than bald conclusions, is sufficient grounds to set aside the decision in and of itself: Gray v. Ontario (Disability Support Program Director) (2002), 2002 CanLII 7805 (ON CA), 59 O.R. (3d) 364 (C.A.); Kalin v. Ontario College of Teachers (2005), 2005 CanLII 18286 (ON SCDC), 75 O.R. (3d) 523 (Div.Ct.).

[39] In my view, given the extent to which the Board ignored and seriously departed from crucial provisions of the official Plan without stating any reasons for doing so, its decision is unreasonable and cannot stand.
TACTICAL NOTE

In addition to appeal arguments respecting the substantive issues involved in any negative Decisions, many "Notices of Decision" (and therefore decisions) can be challenged as void for failure to satisfy the legal requirements of content and adequacy of "reasons for decision". As noted, the legal standard for the informational content of a Notice of Decision is whether it fully informs the claimant of the allegations against them so as to give them the oppourtunity to address them by correcting behaviour to re-establish eligibility, and to advance their appeal rights.

Some Tribunal members view poorly drafted notices as being "cured" when - later in the appeal process - the Director (usually) files detailed written reasons for their decision as part of their written submissions for the appeal hearing. But this is typically months - and even years -later. While this is functional for the adjudicative process in my view such members are giving inadequate weight to the failure of the Director to meet their legal burden to provide reasons, and the unnecessary stress that this places on the appellant.

The case law on "voiding" notices is mixed, but the trend of the more recent cases is to require "prejudice" (ie. harm or degradation of rights) before a decision is voided. Parties may argue that during the time delay in giving adequate reasons for decision claimants can suffer 'prejudice' through loss of evidence, financial loss, and stress caused by continued anxiety as to their financial security. Further, absence of clear reasons for Decision denies recipients procedural rights (not to mention wasting public dollars) as the "internal review" process (see Ch.12 "Appeals and Other Remedies") is reduced to a charade - for how can a party effectively participate in that process in the absence of clear knowedge as to the Director's concerns?

COMMENT

Some Tribunal members, annoyed by the persistent failure of Directors to rectify this chronic problem, may look to this stronger response of "voiding" such Notices to provide some incentive for the Director to get their house in order. In my view, the issue of financial security is far too important to tolerate such laxity in the fulfillment of key statutory duties by a government agent, and in any event tolerance of shoddy performance of statutory duties by public servants should be low, particularly when it results in the unnecessary expenditure of further Director and legal aid resources to rectify.

Providing fuller reasons is not an onerous burden on Directors and their workers. They are already making the decisions and recording their fact-findings and reasoning for them in their own internal written worker "narratives" (now recorded electronically) - so how much extra effort can it be for them to commit these same reasons to paper again in a Notice of Decision to an applicant or recipient in a coherent fashion?

If the Director has computer limitations in what they can put into a Notice of Decision - it is incumbent on them to fix them - or to create notices manually if necessary. As the Divisional Court said in response to similar concerns on the part of the Ministry in Eluck v Ontario (ODSP) [2001] OJ #3764 (QL):
As to the practical concern of the Appellant [Director of [ODSP] relating to its computer program, we are all of the view that it is irrelevant to this appeal.
In other words, it is not for the computer "tail" to wag the law "dog", it is for well-paid people in positions of public trust to ensure that they do important aspects of their job properly.

(e) Service of Decision

. Overview

"Service" refers to the physical action of delivering documents - particularly notices, and the related issue of when such delivery is considered legally "effective". The date on which a decision or order is "deemed" to have been received is important as it triggers the commencement of any appeal limitation period.

The law of service applying to ODSP both at the administrative and appeal level is a mess of uncoordinated and disparate provisions, varying largely by the type of the document delivered. This section deals with service of Notices of (Director) Decisions" and other general documents. For service rules governing "Notices of Decision" in the appeals process see Ch.12: "Appeals and Other Remedies".

TACTICAL NOTE: Keep the Envelopes

Administrators, Ministries, Tribunals and such have a bad habit of assuming that their records reflect the final word on the occurrence of administrative and logistical events (despite ample experience to the contrary). If the date of a Decision becomes key to an issue, do not assume that the date written on it is the date when the decision was placed in the mail. In Re Carson and Director (FBA) (1977), 13 OR (2d) 229 (Ont Div Ct) the court held - quite reasonably - that a Board Decision was not "made" until it was both mailed - and the mail delay period had run, despite the fact that the Decision was written and dated two months before. The issue in Carson was key to determining whether a filing timeline had been met (it had).

While the Carson case has probably been superceded by the more recent case of Walsh v Director (ODSP) (Ont CA, 2012) on the issue of when a decision is "made" (it holds that decisions are 'made' when prepared and signed by the Tribunal member), it is still instructive for the point that recipients should not assume that the dates on Director documents correspond to the date that they are mailed. So: always keep the postmarked and dated envelopes. If nothing else they may give you good grounds to request whatever deadline extension rights you may have.

. Service of Notice of Decision

Notices of Decision are required to be delivered either personally or by mail to the last known address of the party. As of 14 December 2012, electronic delivery may also be used [Reg s.56(1)].

Personal service can be viewed as being effective immediately upon delivery. If notice is given by ordinary mail, it shall be deemed to be received on the third day following the date of mailing [Act s.50].

Typically Notices of Decision are served by regular mail, making service effective the third non-holiday day after the letter is post-marked. (see "Time Limits" in the Small Claims Court program for a more detailed discussion of 'holidays' for service purposes). Small Claims Court: Time Limits.

. Service of Other Documents

As discussed in Ch.12 "Appeals and Other Remedies: Evidence and Submissions Disclosure", there are several rules governing the timelines for disclosure of documents between parties and pre-filing documents with the Tribunal. Further, there are several situations at the "application" and on-going eligibility stages where an applicant/recipient is practically required to "serve" documents on the Director.

Unfortunately neither the ODSP Act, ODSP General Regulation nor the Statutory Powers Procedures Act (SPPA) establish any clear rules regarding the service of such general documents.

Practically however, personal service of a document to an ODSP worker or the ODSP office will likely be viewed as being effective immediately.

As for mail service, it is tempting to have regard to the general "notice" mail delay provisions discussed above [Act s.50] ("third day following the date of mailing") as being applicable to any documents. Since there is no other legal guidance provided, this provision at least provides a reasonable objective standard which can be appealed to. That said, the absence of any specific legal provisions in this regard effectively leaves a reviewing Tribunal or Court with the ultimate discretion in the matter.

. Counting Time

Standard legal service counting rules provide that when "counting time" for service purposes:
  • the first day does not count, but the last day does;

  • weekend days and holidays do not count.
For example, a "Notice" mailed (and post-marked) on Wednesday the 29th of August does not count that first day, the Wednesday - but does count the Thursday and Friday (two so far). Saturday and Sunday do not count as they are holidays, and it turns out that the Monday (03 September) is Labour Day - also a holiday. The next day, Tuesday 04 September is the "third day following the day of mailing" and therefore service is "effective" that day.

(f) When Decisions are "Made", "Effective", "Received" and "Final"

. Overview

The concept of "finality of decision" (which determines when the 30 day time line for appealing the Director's Decision to the SBT starts to count), and the associated concepts of when decisions are "made", "received" and "effective" can be confusing. All of them though are essential to determining when exactly a Decision either comes into force, or when 'deadlines' for internal review and appeal proceedings start counting.

In cases where filing "deadlines" are missed and no extensions are available then a party's appeal rights may simply be lost [Act s.35]. These issues are discussed more directly in the context of internal reviews and appeals in Ch.12, s.1(b) ["Appeals and Other Remedies: Internal Review"].

. When a Decision is 'Made' (aka 'Issued')

The issue of when a Decision is "made" ("issued" is an equivalent term) is primarily relevant to determining the running of the 'ultimate' one-year deadline for filing an appeal set out in Reg 61(2) ["(n)o appeal to the Tribunal shall be commenced more than one year after the date of the Director's decision"].

A decision is made or issued by the physical act of printing it up at the Director's office. When that is done a current date of issuance will be placed on it. This is akin to the date that one would put at the top of a personal letter to indicate when it was written. Think of the concept of 'made' here as equivalent to when you 'wrote' your letter, even if you didn't mail it yet.

Arguments that no Decision is 'made' until it is received (or even until it is understood) by the recipient were conclusively defeated by the Court of Appeal in Walsh v Director (ODSP) (Ont CA, 2012). The court did however allude to the possibility that s.28(2) ["(t)he Tribunal may extend the time for appealing a decision if it is satisfied that there are apparent grounds for an appeal and that there are reasonable grounds for applying for the extension."] may be applied to extend that period, but only if a specific request is made to the Tribunal to do so.

. When a Decision is "Received"

The issue of when a Decision is "received" is primarily relevant to determine the running of the deadline for requesting an internal review set out in Reg 58(1) ["(t)he prescribed time for requesting an internal review is 30 days from the day the decision is received or deemed to have been received under section 50 of the Act."] The reference to Act s.50 is simply to the rule that when Decisions are sent by regular mail (as is almost always the case) then they are 'deemed' to have been received three days after they are put in the mail.

In light of the Director's past generous approach to extending the (previously 10-day) filing time for internal reviews, this issue has had little significance until the last few years. However, since the internal review filing time has now been extended to 30 days (on 01 May 2009), such generosity may not always be so forthcoming in future.

Situations of mail delay (which are not anticipated in Act s.68), previously robustly resolved by Tribunal members simply asking 'if' an internal review was requested (regardless of lateness), are now going to be problematic in light of the Court of Appeal's decision in Walsh v Director (ODSP) (Ont CA, 2012). Walsh holds that lateness in the making an internal review request, subject to the Director's discretion to extend the time for conducting one, is fatal to any further appeal rights. Under the strictness of Walsh, mail delay - despite it being no fault of the recipient (and absent a time extension by the Director) ends their appeal rights and forces them to re-apply from scratch.

. When a Decision is "Effective"

The issue of when a Decision is "effective" bears on when it has legal effect. Simply put, it is "effective" when the Director, in the Decision itself, says it is.

This date can be before, after or on the date that the Decision is made [Act s.25(1)]. If the Notice of Decision fails to specify an 'effective date' then it is usually a safe assumption is that it is effective the date that the Notice is issued (ie. the date of the Notice of Decision). Where a Tribunal ruling dismisses an appeal, the natural effect is to reinstate whatever effective date the Director has set out in their original Notice of Decision.

. When a Decision is "Final"

The sometimes complex issue of when the Director's Decision is "final" is primarily relevant to determine the running of the deadline for filing an appeal before the Social Benefits Tribunal (SBT) as is set out in Reg 61(1) (30 days from when it is 'final'). The Act itself addresses this 'finality' in very specific terms.

First, when the Director's Decision is not 'appealable' (for this determination, see the list at Ch.11, s.4), then it is final when it is "made" (see above) [Act s.20(2)].

However, when it is appealable [ie. when it effects "eligibility for or the amount of income support": Act s.21(2), and is not one of the listed non-appealable Decisions], then the Decision is final as follows [Act s.20(3)]:
  • if no request for internal review has been requested, then when the deadline for requesting it passes [see "When a Decision is Received", above] (ie. 30 days after it is received);

  • if a request for internal review has been requested, then on the day of the earliest occurence of any one of the following:

    • the day the results of the completed internal review are received;

    • the day that the results of the completed internal review are deemed to be received in accordance with the three-day mail delay rule (see "When a Decision is Received", above); or

    • the day the prescribed time for completing the internal review expires [this is 10 days after the adminstrator receives the request for internal review: Reg 59(1)].
Readers should note that the Tribunal generally takes a generous approach to extending past the 30-day time for filing appeals (see these topics in Ch.11 "Appeals and Other Remedies"), and that this extension issue is normally decided as a preliminary issue at the hearing itself.

. The Effect of Timeline Extensions on Date of "Finality"

The above 'finality' rules unfortunately do not adequately address the situation that occurs when the Director grants an extension of the time for conducting an internal review [Reg s.58(3); see Ch.11, s.1(b)]. Strictly speaking in such a situation the 30 day deadline (counting from after 'receipt' of the Director's decision) for requesting an internal review will always have passed, and that deadline date would be the first of the three 'finality' dates set out above. That leaves the recipient with another 30 days from that date to appeal, subject of course to a further extension of the appeal deadline by the Tribunal [under Act s.23(2)] - which would seem to be eminently reasonable in light of the administrator's waiver of the internal review deadline.

. Extending and Missed Timelines

The availability of timelines extensions is addressed separately in Ch.11 as it relates to the specific situations of "internal reviews", appeals to the Tribunal and appeals to the courts.

Note however that where a timeline is absolute (ie. a "deadline") and has been irretrievably missed, only the statutory appeal route is barred. This does not necessarily bar other legal remedies - particularly judicial review (see that topic and other "remedies" in Ch.10) - though long delay can certainly negatively impact on the availability of judicial review (the Divisional Court applies a flexible de facto six-month limitation period to judicial reviews).

(g) Re-Applications and Re-Instatements

. Overview

Where the case for the appeal of a disentitlement decision has merit, that route certainly should be pursued (Ch.12). However not all situations of disentitlement merit or call for the commencement of the full appeal process. In either of these situations disentitled persons should consider the availability of "re-instatement" and "re-application" procedures (which may be pursued parallel with an appeal).

. Re-Instatements

Re-applications are discussed at Ch.10, s.2(d) ["Applications and Procedures: Application Procedures: Rapid Reinstatements"]. They cover quick re-instatement of eligibility in situations where:
  • "grand-parented" FBA recipients are disentitled due to earnings income;

  • "persons with a disability" (PWD) recipients are disentitled for any non-medical reasons.
As well, it is important to note that where income support has been "reduced" it shall not be reinstated until the period of ineligibility has expired AND the recipient "makes a request" for reinstatement [Reg s.26(1)(2)].

. Re-Applications

- Overview

If a first application is denied or if there has been a disentitlement, a person can re-apply if they have "new or other evidence" or if their "material" (ie. significant) circumstances have changed [Act s.10(2)].

In other words, if they have better evidence or if circumstances have changed favourably (for eligibility purposes) then they can simply "try again". The potential for a "re-application" and "re-instatement" should always be explored - and they can be tried even while an appeal or internal review is afoot.

- Re-Applications and Res Judicata

In some limited circumstances a principle known as "res judicata" can bear on a decision as to whether to re-apply. "Res judicata" is a general common sense principle of law that a matter which has been adjudicated once should not be re-adjudicated - and the first result is binding on the parties.

This principle has been expressly (but only in part) imported into the ODSP legislative framework: see Ch.12: "Appeals and Other Remedies: Appeal Process: Summary Dismissals". These provisions provide that when an appeal to the Tribunal is summarily dismissed on certain limited procedural grounds of 'non-participation' by an appellant, that no subsequent appeal "on the same issue" [Act s.29] may be made within two years of the originally-challenged decision [Reg s.69].

These provisions act as an effective bar to the appeal of later identical decisions in these limited circumstances, and thus are a practical concern whenever re-application is being considered.

It is interesting to note that without these provisions the common law of res judicata would have applied to bar ANY subsequent legal proceedings on the same facts (once the original proceedings are exhausted). The provisions mentioned above actually lighten the impact of res judicata on applicants.

- Re-Application Within One Year

In the case of a new application made within one year from the last application, the Director may accept the prior application and documentation as the present application, but may require updating information and documentation [Reg s.18] (of course, any changed circumstances should be made plain to the Director).

- COMMENT

Unfortunately, other provisions governing the issues of "re-application" and "re-instatement" are amongst the most ambiguous and poorly-worded in the whole body of ODSP law. Refer to the discussion above under "Clarification of Terminology" and the Eluck casenote for necessary background (above).

For instance, s.26(1) of the Regulation reads:
26(1)
If income support is refused or cancelled, it shall not be provided or reinstated until the period of ineligibility has expired and a new application for income support has been made.
This is a good example of the problem. This passage uses the terms "refused or cancelled" but the context shows that they are clearly countenanced as being temporary ("period of ineligibility") - something which most people would characterize as a "suspension". The provision then furthers the inconsistency by requiring a "new application" before income support can re-commence. Well, which is it: temporary or permanent? - we don't know from this. Further, when two or more "reductions" are applied such that income support is reduced to zero, income support shall be "deemed to be cancelled" [Reg 26(3)].

I suggest the best tactic that can be adopted on the important issues of "re-application" and "re-instatement" is the simplest: WHEN IN DOUBT, ASK. Argue the fine nuances of "suspension" versus "cancellation" versus "reduction" if you must on appeal - but practically:
  • in the event of fixed-time suspension, formally request re-instatement of income support when the period expires (ALWAYS in writing);

  • in any other situation, formally request a re-application when circumstances have changed to better the case for eligibility, or new evidence has arisen.
Otherwise, when in doubt: ASK. I don't mean to say that the Director's position on these issues will be legally correct, but it will at least provide a standard by which the parties can predict likely outcomes and plan accordingly.

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