



COURT OF APPEAL FOR ONTARIO

CITATION: Surdivall v. Ontario (Disability Support Program),
    2014 ONCA 240 DATE: 20140331

DOCKET: C56206

Laskin, Goudge and Feldman JJ.A.

BETWEEN

Glynn Surdivall

Appellant

and

Director of the Ontario Disability Support
    Program

Respondent

Jackie Esmonde and Cynthia Wilkey, for the appellant
    Glynn Surdivall

Mimi Singh and Sara Weinrib, for the respondent Director
    of the Ontario Disability Support Program

Cynthia Pay, for the interveners Metropolitan Action
    Committee on Violence Against Women and Children and Arch Disability Law Centre

Heard: September 17, 2013

On appeal from the order of the Divisional Court (J.R.R. Jennings,
    K.E. Swinton and A. Harvison Young JJ.), dated March 30, 2012, with reasons
    reported at 2012 ONSC 1851, 292 O.A.C. 317.

Laskin
    J.A.:

A.

Overview

[1]

This appeal raises two important questions about the statutory authority
    of the Director of the Ontario Disability Support Program (ODSP) and of the
    Social Benefits Tribunal.

[2]

The first question is whether the Director has authority to forego
    recovery of part or all of an overpayment of income support to a disabled
    recipient.  Put differently, is the Directors discretion limited to how to
    collect an overpayment or does the Director also have discretion about when and,
    more importantly, whether to collect an overpayment?  The answer to this
    question turns on the extent of the discretion conferred by the words may be
    recovered and may in the
Ontario Disability Support Program Act, 1997,
S.O. 1997, c. 25, Sched. B
(
ODSPA
).

[3]

The second question is whether the Tribunal, on appeal from a Directors
    decision, has the authority to restrict the Directors recovery of an
    overpayment and order that either part or all of an overpayment not be
    recovered.  The answer to this question turns on the scope of the Tribunals
    appellate jurisdiction.

[4]

The appellant Glynn Surdivall is a disabled senior.  He received ODSP
    income support until he turned 65.  Because he made an innocent reporting
    error, he received more income support than he was entitled to.  He was
    assessed an overpayment of $3050.00, which the Director ordered him to repay.

[5]

Surdivall appealed the Directors decision to the Tribunal.  It held that
    the Directors decision assessing Surdivall with an overpayment was correct. 
    However, the Tribunal ordered the Director to collect only half of the
    overpayment  $1525.00  at the rate of $10.00 per month.

[6]

The Director appealed the Tribunals decision to the Divisional Court. 
    The Divisional Court allowed the Directors appeal.  It concluded that neither
    the Director nor the Tribunal had authority to forgive any part of an
    overpayment.

[7]

I do not agree with the Divisional Courts decision.  In my opinion, the
    Director has discretion to forego recovery of part or all of an overpayment. 
    As the Director has this discretion, so too did the Tribunal have discretion to
    order that the Director collect only half of the overpayment Surdivall
    received.  I would allow the appeal and reinstate the Tribunals decision.

B.

Factual Background and History of the Proceedings

(a)

The Ontario
    Disability Support Program

[8]

This program provides monthly support to eligible persons with
    disabilities.  The program serves some of the provinces most vulnerable
    individuals.  The support they receive is intended to help them live as
    independently as possible.

[9]

Under the regulations, disabled recipients must provide ongoing
    financial information as a condition of their eligibility for support.  This
    requirement includes an obligation to report changes in their financial
    status.  As I will outline, if their failure to report a change results in an
    overpayment of support, the Director may recover the overpayment by one of the
    methods specified in the statute.

(b)

The Overpayment to
    Surdivall

[10]

Surdivall
    is now 67 years old.  His only sources of income are a small CPP pension and
    social benefits for low income seniors.  Because of his long-term disabilities,
    before turning 65, he received income support from the ODSP.  This income
    support included a shelter allowance equivalent to the cost of his rent (up
    to a maximum) for his principal residence.

[11]

Beginning
    in November 2008, while receiving income support, Surdivall lived in an
    apartment with a friend.  He paid rent of $444.00 per month and received an
    equivalent amount from the ODSP as a shelter allowance.  In August 2009
    Surdivall was offered his own apartment in public housing at a rent of only
    $139.00 per month.  His friend, however, asked Surdivall not to leave until he
    found another roommate because he would not be able to pay the total rent on
    his own.  So Surdivall stayed with his friend for another ten months until the
    end of May 2010, and paid rent for both apartments.  In June 2010 Surdivall
    moved into his apartment in public housing and notified the ODSP of his reduced
    rent.

(c)

The Directors
    Decision

[12]

The
    Director took the position that beginning in August 2009, Surdivalls principal
    residence was his apartment in public housing.  She assessed an overpayment of
    $3050.00 ($444.00 x 10 - $139.00 x 10) and, to repay it, ordered monthly
    deductions of $35.85 from Surdivalls ODSP benefits.

[13]

Surdivall
    appealed the Directors overpayment decision to the Tribunal.  Before his
    appeal was heard, he turned 65 and thus was no longer entitled to ODSP
    benefits.
[1]
The Director notified him that he should repay his overpayment by sending a
    cheque or money order payable to the Minister of Finance.  If he could not
    repay the total amount at that time he could discuss a repayment plan with the
    Directors office.

(d)

The Tribunals
    Decision

[14]

Surdivall
    appealed the Directors overpayment decision to the Tribunal under s. 21(1) of
    the
ODSPA
.  This section provides that any decision of the Director
    affecting eligibility for or the amount of income support may be appealed to
    the Tribunal.

[15]

After
    a hearing at which Surdivall testified, the Tribunal found that the Director
    correctly assessed Surdivall with an overpayment of $3050.00 for the period
    August 1, 2009 to May 31, 2010  a period Surdivall could have lived in less
    expensive housing.  The Tribunal acknowledged that helping a friend out may be
    an admirable thing to do but held that it was not reasonable for Surdivall to
    do so when he was receiving public assistance at the expense of Ontario
    taxpayers.

[16]

The
    Tribunal found that Surdivall had a responsibility to report his new subsidized
    rent to the Director.  However, the Tribunal also found that Surdivall did not
    understand or intentionally try to deceive the Director because he testified in
    a credible, honest and forthright manner as to his understanding that he was
    not required to inform the Director until he actually moved into his TCHC
    apartment.

[17]

The
    Tribunal concluded that the discretion to recover an overpayment should be
    flexible, taking into account the circumstances of each case and the purposes
    of the Act.  Surdivall would experience financial hardship if he had to repay
    the full amount of the overpayment; however, he had some responsibility to the
    taxpayers of Ontario to repay a portion of it.  The Tribunal ordered that he
    repay half, $1525.00 at the rate of $10.00 per month.
[2]

(e)

The Divisional
    Courts Decision

[18]

The
    Director appealed the Tribunals decision to the Divisional Court under s.
    31(1) of the
ODSPA
.  That section provides for an appeal of a
    Tribunals decision on a question of law.  The Tribunals authority to order
    that part of an overpayment not be recovered is a question of law.  And the
    Divisional Court held that the standard of review on that question is
    correctness.

[19]

In
    its reasons the Divisional Court noted that an overpayment is a Crown debt.  In
    its view, neither the Director nor the Tribunal has any discretion to
    compromise a Crown debt.  The Tribunals order amounted to a write-off of half
    of the debt.  Neither it nor the Director has authority to make such an order. 
    The Directors discretion under the legislation is limited to choosing how she
    will recover an overpayment: [t]here is nothing in the statute which grants
    the Director the jurisdiction to forgive any part of the overpayment.  The
    Divisional Court allowed the Directors appeal and set aside the Tribunals
    order limiting recovery of the overpayment.

C.

analysis


I.     Does the Director have authority to forego recovery of part or
    all of an overpayment of income support to a disabled recipient?

[20]

Because
    s. 29(3) of the Act states that the Tribunal on appeal cannot make a decision
    that the Director does not have the authority to make, we must first decide
    whether the Director has the authority to forego recovery of part or all of an
    overpayment.

[21]

Surdivall
    submits that the Director has broad discretion over overpayments, a discretion
    that includes foregoing or not recovering an overpayment.  The interveners
    support Surdivalls position.  They submit that the
ODSPA
should be
    interpreted consistently with
Charter
values and human rights
    principles.  The respondent submits that the Directors discretion is limited
    to choosing a method for recovering an overpayment.  According to the
    respondent, the Director may defer collection of an overpayment, but may not
    forego recovery of it altogether.

(a)

Relevant Provisions
    of the
ODSPA

[22]

This
    first question is a question of statutory interpretation.  The statute to be
    interpreted is the
ODSPA
.  The following are its relevant provisions.

[23]

Purpose and objectives
.  Section 1 states that the
    purpose of the Act is to establish a program that has four objectives.

1. The purpose of this Act is to establish a program that,

(a)

provides
    income and employment supports to eligible persons with disabilities;

(b)

recognizes
    that government, communities, families and individuals share responsibility for
    providing such supports;

(c)

effectively
    serves persons with disabilities who need assistance; and

(d)

is accountable to the taxpayers of Ontario.

Of these four objectives, the Divisional Court relied
    only on the last one  to be accountable to the taxpayers of Ontario.

[24]

The Directors powers and duties
.  The Director, who is
    responsible for administering the program, has broad powers and duties, which
    are listed in s. 38.
[3]

The Director shall,

(a)

receive applications for income
    support;

(b)

determine the eligibility of each
    applicant for income support;

(c)

if an applicant is found eligible
    for income support, determine the amount of the income support and direct its
    provision;

(d)

administer the provisions of this
    Act and the regulations;

(e)

determine how the payment of the
    costs of administering this Act and providing income support is to be
    allocated;

(f)

ensure that the
    appropriate payments are made or withheld, as the case may be; and

(g)

exercise the prescribed powers and
    duties.

One of the Directors statutory duties is to recover
    overpayments.

[25]

Overpayments
.  Section 14(1) of the Act defines an
    overpayment:

14. (1) If an amount has been provided to a recipient
    under this Act in excess of the amount to which the recipient was entitled, the
    amount of the excess is an overpayment.

As Surdivall received an amount of income support in
    excess of the amount to which he was entitled, he was properly assessed an
    overpayment.

[26]

Section 14(2.1)
.  This section stipulates that an
    overpayment is a debt due to the Crown in right of Ontario.

[27]

Section 14(4)
.  This a key provision on the appeal.  It
    sets out three ways by which an overpayment
may be recovered
(emphasis
    added):

14. (4) An overpayment may be recovered by one or more of reduction of
    income support under section 15, notice under section 16 or a proceeding under
    section 17
.

·

Under s. 15(1) the Director may reduce monthly benefits.  By
    regulation, absent consent, the amount deducted cannot exceed ten per cent of a
    recipients budgetary needs.

·

Under s. 16(1) the Director may give a recipient written notice
    of an overpayment.  The notice is enforceable as if it were an order of the
    Superior Court of Justice.

·

Under s. 17 the Director may recover an overpayment as a debt due
    to the Crown in a court of competent jurisdiction.

[28]

Section 14(5)
.  In addition to the three methods of
    recovery of an overpayment listed in s. 14(4), under s. 14(5) an overpayment
    may be recovered by any remedy or procedure available to the Crown by law.

(b)

The Extent of the Directors
    Discretion

[29]

The
    words may be recovered and the word may structure each of the statutory
    provisions for the recovery of an overpayment.  The word may ordinarily
    confers discretion on a decision-maker and both sides agree that the Director
    has discretion over the recovery of overpayments.  The primary question on this
    appeal is the extent of this discretion.  Is the Directors discretion limited
    to choosing the method of recovering an overpayment, as the Divisional Court
    found and the respondent contends, or does the Directors discretion also
    include a choice about whether to recover an overpayment, as Surdivall contends?

[30]

I
    have concluded that the Director has broad discretion over the recovery of
    overpayments.  She may choose how to recover an overpayment, and if the
    circumstances of an individual case warrant it, may also choose not to recover
    part or all of an overpayment.

[31]

The
    basic rule of statutory interpretation in Canada remains the rule formulated
    over 30 years ago by Elmer Driedger in the second edition of his book,
Construction
    of Statutes

(Toronto: Butterworths, 1983):

The words of an Act are to be read in their entire context, in
    their grammatical and ordinary sense harmoniously with the scheme of the Act,
    the object of the Act, and the intention of Parliament.

See, for example,
Rizzo and Rizzo
    Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21.

[32]

This
    rule governs the extent of the Directors discretion under the
ODSPA
.

(i)

The word may and the phrase may be recovered

[33]

As
    I have said, when the legislature confers a statutory power on a decision maker
    using the word may, the power is meant to be discretionary.  And, typically,
    the decision maker can lawfully decide whether to exercise the power or not to
    exercise the power  in other words, typically, may impliedly means may or
    may not:  see R. Sullivan,
Sullivan on the Construction of Statutes
,
    5th ed. (Markham: LexisNexis, 2008), at pp. 68-74.  However, the word may
    alone does not determine the extent of a decision makers discretion.

[34]

So,
    in this case, the words may and may be recovered do not by themselves resolve
    whether the Directors discretion over the recovery of overpayments includes a
    decision not to recover part or all of an overpayment.  As is apparent from
    Driedgers rule, these words must be considered in context, having regard to
    the scheme and objects of the
ODSPA
and the legislatures intent.

(ii)

The Scheme and Objects of the
ODSPA

[35]

The
ODSPA
is social welfare legislation, serving some of the provinces
    most impoverished and vulnerable residents.  The statute contains a complex set
    of regulations, with detailed reporting requirements.  And, as counsel for
    Surdivall noted, overpayments occur quite frequently, often for innocent
    reasons.  The statutory scheme inevitably requires flexibility, as the Tribunal
    held in this case, so that the Director can deal with overpayments in a
    rational, reasonable and cost effective way:  see
Canada (Attorney
    General) v. Mavi
, 2011 SCC 30, 2 S.C.R. 504, at para. 54.

[36]

The
    objectives of the program under the
ODSPA
support giving the Director
    broad discretion over the recovery of overpayments.  For convenience, I again
    list the four objectives, which are found in section 1 of the Act: They are to
    establish a program that

·

Provides income and employment supports to        eligible
    persons with disabilities;

·

Recognizes that government, communities,  families and
    individuals share responsibility for       providing such supports;

·

Effectively serves persons with disabilities who      need
    assistance; and

·

Is accountable to the taxpayers of Ontario.

[37]

Nothing
    can be gleaned about the extent of the Directors discretion from the first
    objective.  It is merely descriptive.  The second objective, however, does
    require a broad discretion.  This objective recognizes that government together
    with communities, families and individuals shares responsibility for providing
    support.  To meet this objective flexibility in collection is needed. 
    Especially when overpayments result from innocent mistakes, demanding recovery
    may impose an enormous hardship on persons already living well below the
    poverty line.  In such cases, it is entirely appropriate, as the Tribunal
    recognized in Surdivalls appeal, that government share the responsibility for
    the overpayment.

[38]

The
    third objective  to effectively serve persons with disabilities who need
    assistance  is especially significant.  This objective cannot be met unless
    the Director has the flexibility not to recover overpayments in appropriate
    cases.  Counsel for Surdivall gave two examples of Tribunal decisions where
    recovery of overpayments would be most unfair to disabled recipients.

[39]

In
    the first example, an incompetent ODSP recipient living in a group home had
    his ODSP benefits paid to a trustee.  The trustee misappropriated all the
    payments for her own benefit.  An overpayment was assessed because the trustee
    failed to report a change in circumstances.  Yet the ODSP recipient was
    responsible for the overpayment though he received no benefit and was neither
    competent nor personally required to report changes in circumstances to the
    program:  see ON SBT 1105-03547 (2012); ON SBT 1012-11713 (2012).

[40]

In
    the second example, an ODSP recipient lived with her son and had arranged for
    the program to pay her rent directly to her landlord because she was
    incapable of managing her finances.  When her son moved out, she informed
    ODSP and her housing provider.  ODSP ought to have decreased her shelter
    allowance but failed to do so even after she brought the error to her
    caseworkers attention.  ODSP later sought to recover the $1350.00 overpayment
    it had erroneously paid to her landlord, though the recipient had seen no
    benefit from the overpayment and would suffer hardship if forced to repay it:
    see ON SBT 1102-01061 (2011).

[41]

The
    harshness and unfairness of debt recovery in these two examples are
    self-evident  and I expect there are many similar cases.  If the program is to
    serve disabled recipients effectively, then the Director must have discretion
    not only over how to collect an overpayment, but over whether to collect it at
    all.

[42]

The
    final objective of the program and the one objective of the ODSP relied on by
    the Divisional Court and by the respondent is that of being accountable to the
    taxpayers of Ontario.  According to the Divisional Court, it would be
    virtually inconceivable given the requirements of accountability and transparency
    that the Director would have discretion to forego recovery of overpayments. 
    According to the respondent, Surdivalls position would give the Director an
    open-ended discretion not to collect an overpayment regardless of the
    circumstances and would mean that there would be no accountability to the
    public for the loss of funds.

[43]

I
    think that both the Divisional Court and the respondent have taken too narrow a
    view of the programs objective of accountability to Ontarios taxpayers.  This
    objective does not require that overpayments always be recovered.  It requires
    that they be recovered if circumstances warrant their recovery.  Thus, for
    example, if the cost of recovering an overpayment would exceed the actual
    recovery of the overpayment, then insisting on recovery would not further the
    programs objective of accountability to Ontarios taxpayers.  For this reason,
    the Directors own policy is not to recover overpayments of less than $2.50.

[44]

In
    my view, the ODSP will be accountable to the taxpayers of Ontario if public
    funds are spent fairly, honestly and reasonably.  The Directors discretion
    over the recovery of overpayments is not open-ended.  It must be exercised
    reasonably taking account of a disabled recipients individual circumstances.  In
    some cases, it will not be reasonable for the Director to recover all or part
    of an overpayment.  Foregoing recovery in these cases is still consistent with
    the programs objective of accountability to the provinces taxpayers.

[45]

Thus,
    the scheme of the statute and the objectives of the statute support conferring
    a broad discretion on the Director over the recovery of overpayments.  I next
    turn to the context in which the words may and may be recovered are found
    in the Act.

(iii)

The Entire Context

[46]

The
    Divisional Court and the respondent relied heavily on the proximity of the
    Directors discretionary power over the recovery of overpayments to their
    methods of recovery.  In each case, the phrase may be recovered and the word
    may are followed by specific methods of recovery.  This suggests, the
    respondent argues, that the Directors discretion is limited to recovery
    options; it does not include the option of foregoing recovery.

[47]

There
    are three answers to this argument.  The first answer is the scheme and objects
    of the statute.  They support a broad interpretation of the Directors
    discretion, which includes discretion not to recover overpayments in
    appropriate cases.

[48]

The
    second answer is that if the legislature intended to limit the Directors
    discretion to methods of recovery of an overpayment, it could have used the
    phrase shall be recovered instead of may be recovered in s. 14(4) of the
ODSPA
. 
    If s. 14(4) read an overpayment shall be recovered by one of more of, it
    would be consistent with the respondents argument.  The contrasting use of the
    phrase may be recovered suggests that the legislature intended the Director
    to have a broader discretion.

[49]

The
    final answer is the Supreme Court of Canadas decision in
Mavi
.  That
    case dealt with the federal governments sponsorship program under the
Immigration
    and Refugee Protection Act,
S.C. 2001,
    c. 27
(
IRPA
).  Under that program, when a Canadian citizen
    or permanent resident sponsors a family member to immigrate to Canada, the
    sponsor must sign an undertaking to support the sponsored family member
    financially for a set number of years.  If, during that period, the family
    member receives social assistance, the sponsor is deemed to have defaulted on
    the undertaking.  The sponsors obligation becomes a Crown debt, which the
    sponsor must repay on demand.  Either the provincial or the federal government
    may recover the cost of the social assistance from the sponsor.

[50]

One
    of the issues in
Mavi
was the scope of the discretion given to the
    government to recover sponsorship debts: was it limited to a choice of which
    level of government could recover, or did it include discretion to limit
    recovery to agreed upon amounts and terms of recovery?

[51]

The
    relevant section of the
IRPA
, s. 145(2), includes the phrase may be
    recovered, followed by reference to the two levels of government:

Debts
    Due  sponsors

145. (2) Subject to any federal-provincial agreement,
    an amount that a sponsor is required to pay under the terms of an undertaking
    is payable on demand to Her Majesty in right of Canada and Her Majesty in right
    of the province concerned and may be recovered by Her Majesty in either or both
    of those rights.

[52]

The
    application judge in
Mavi
thought that the phrase may be recovered
    simply allowed either level of government to enforce the undertaking.  Binnie
    J., writing for the Supreme Court, rejected that interpretation.  At para. 54 of
    his reasons he wrote that nothing in the relevant sections explicitly
requires
Her Majesty to pursue collection of debts irrespective of the circumstances
    (emphasis in original).  And he held at para. 59 that the governments
    discretion in s. 145(2) was broader than just discretion over whether the
    province or federal government could enforce a sponsorship debt.  It also
    included discretion over the amount and terms of repayment, short of
    forgiveness of the debt altogether.  The government could not forgive the
    sponsors debt entirely because of s. 135(b)(i) of Regulation SOR/2002-277
    under the Act, which provides:

Default

135. For the purpose of subparagraph 133(1)(g)(i),
    the default of a sponsorship undertaking

. . .

(b) ends, as the case may be, when

(i) the sponsor
    reimburses the government concerned, in full or in accordance with an agreement
    with that government, for amounts paid by it

[53]

From
    the Supreme Courts decision in
Mavi
, I draw the conclusion that the
    location of the phrase may be recovered in the
ODSPA
does not limit
    the Directors discretion to a choice of the method of recovering an
    overpayment.  The discretion is broader than simply discretion over recovery
    options.  But I also conclude, for two reasons, that the Directors discretion
    under the
ODSPA
is broader than the governments discretion under the
IRPA
,
    and extends to the forgiveness of a debt entirely.

[54]

The
    first reason is that the governments discretion over the recovery of
    sponsorship debts under the
IRPA
is limited by s. 135(b)(i) of the
    regulation to agreed on amounts and terms short of forgiveness altogether. 
    Neither the
ODSPA
nor the regulations under it contain any similar
    language limiting the discretion conferred by the words may be recovered.

[55]

The
    second reason the Directors discretion is broader is the entirely different nature
    of the two programs, the sponsorship program and the ODSP.  In the sponsorship
    program, sponsors voluntarily sign undertakings after establishing that they
    have enough wealth to support their family members.  The ODSP, by contrast, is
    a program of last resort for disabled recipients who have no other way to meet
    their basic needs.  The entire context of the ODSP supports giving the Director
    a broad and flexible discretion over the recovery of overpayments.

(iv)

Legislative Intent

[56]

The
    respondent makes two further arguments in support of her position, both focused
    on legislative intent.

[57]

First
    she submits that as the statutory provisions for the recovery of overpayments
    do not include a provision giving the Director discretion not to recover, the
    legislature could not have intended the Director to have this authority.  The
    respondent buttresses this argument by her reliance on the implied exclusion
    rule of statutory interpretation: if the legislature had meant to give the
    Director the power to forgive overpayments, it would have said so expressly, so
    it can be inferred that the legislatures failure to do so was deliberate. 
    Thus, though the exclusion is not express, it is implied: see
Sullivan
,
    at p. 244.

[58]

I
    do not accept this argument.  The discretion to forego recovery of overpayments
    does not require express language in the light of the scheme and objects of the
    ODSP.  The authority to forego recovery is conferred by the words may and
    may be recovered.

[59]

The
    implied exclusion rule does not assist the respondent.  [L]egislative
    exclusion can be implied when an express reference is expected but absent: see
University Health Network v. Ontario (Minister of Finance)
(2001), 151
    O.A.C. 286, at para. 31.  Context matters.  The ODSP does not contain a listing
    of items or a pattern of drafting in which an express reference to the
    discretion to forgive overpayments would have been expected if it was
    intended.  Accordingly, no implication can be drawn from the absence of express
    authority not to recover overpayments.

[60]

The
    respondents second argument flows from s. 14(2.1) of the
ODSPA
, which
    provides that an overpayment is a Crown debt.  The respondent submits, and the
    Divisional Court held at para. 22 of its reasons, that the Director has no
    power to write-off a Crown debt.  That power resides with the Minister of
    Finance under s. 5(1) of the
Financial Administration Act
, R.S.O.
    1990, c. F.12:

Settlement
    of or determination of uncollectability of debts, etc.

5. (1)  Where a person has an obligation or debt due to
    the Crown or the Crown has a claim against a person, the Minister of Finance
    may, subject to any other Act affecting such obligation, debt or claim,

(a) negotiate and accept
    a settlement in payment and satisfaction of such obligation, debt or claim;

(b) determine that any
    such obligation, debt or claim is uncollectable; or

(c) determine that
    financial hardship, economic considerations or other circumstances do not warrant
    the collection or enforcement of any such obligation, debt or claim.

I do not accept this argument either.

[61]

The
    term write-off is not helpful.  The issue is not whether the Director has
    discretion to write-off a Crown debt (she does not) but whether she has
    discretion not to collect part or all of one.  The two are not the same.  A write-off
    is an accounting term.  It recognizes a reduced or zero value of an asset on
    the enterprises, in this case the governments, books.  A debt that is written
    off can still be collected.  A determination not to collect or recover a debt
    is just that, though in many cases uncollectable debts are recommended for write-off.

[62]

Although
    the Minister of Finance has the authority to decide not to collect or to
    compromise a Crown debt, his authority is not exclusive.  Section 5(1) of the
Financial
    Administration Act
contains the qualifying phrase subject to any other
    Act affecting such obligation.  The
ODSPA
is an other Act affecting
    the collection of Crown debt.

[63]

Moreover,
    in
Mavi
, the Supreme Court rejected the very argument the respondent
    makes in the present appeal.  After referring to the federal
Financial
    Administration Act
, Binnie J. wrote, at para. 60:

The
FAA
is a statute of very general
    application.  It does not preclude Parliament from enacting more
    specialized legislative schemes for the management and enforcement of debts
    owed to the Crown under particular statutory programs.  The
IRPA
is an example of such a specialized collection regime.

[64]

Similarly,
    the
ODSPA
establishes a specialized collection regime under a special
    statutory program, the ODSP.  The provincial
Financial Administration Act
does not override the debt collection provisions of the
ODSPA
or
    preclude their application.  The Director has discretion not to recover
    overpayments and the
Financial Administration Act
does not take this
    discretion away.

[65]

For
    all of these reasons I conclude that the Director has discretion over both how
    to recover overpayments and whether to recover them in part or not at all.  In
    reaching this conclusion, I have considered, but have not found it necessary to
    take account of the submissions of the interveners.


II.     Does the Social Benefits Tribunal have authority to restrict the
    Directors recovery of an overpayment and order that part or all of an
    overpayment not be recovered?

[66]

The
    Tribunal found that the Director correctly assessed Surdivall with an
    overpayment.  But it disagreed on whether there should be any relief from repayment. 
    The Director ordered Surdivall to pay back the entire overpayment; the Tribunal
    overturned the Directors decision and ordered Surdivall to pay back only half
    of the overpayment, and over an extended period of time.

[67]

Surdivall
    submits that if, as I have concluded, the Director has discretion to forgive a
    Crown debt or forego recovery of an overpayment, then so too does the
    Tribunal.  The respondent submits that even if the Director has this discretion,
    the Tribunal does not.  Both parties agree, and I accept, that the standard of
    review of the Tribunals authority is correctness.  The respondent also makes a
    subsidiary submission: the Tribunals order was premature because the Director
    had not taken any steps to collect Surdivalls overpayment.

(a)

The
    Tribunals Appellate Jurisdiction

[68]

The
    debate over the Tribunals powers must be resolved by examining its appellate
    jurisdiction under the statute.  The Social Benefits Tribunal is established
    under s. 60 of the
Ontario Works Act
, 1997,
S.O. 1997, c. 25,
    Sched. A to carry out duties assigned to it under that Act or other Acts.  One
    of the other Acts is the
ODSPA
.

[69]

The
    Tribunals appellate jurisdiction under the
ODSPA
is broadly framed. 
    Section 21(1) states:

21. (1) Any decision of the Director affecting
    eligibility for or the amount of income support, assistance under section 49 or
    extended health benefits under section 49.1, other than a decision referred to
    in subsection (2), may be appealed to the Tribunal.

As the Directors decision affected the amount of
    Surdivalls income support, his appeal was properly brought under s. 21(1).
[4]

[70]

Section
    26(1) of the Act also gives the Tribunal broad remedial powers:

26. (1) In an appeal to the Tribunal, the Tribunal
    may,

(a)

deny the appeal;

(b)

grant the appeal;

(c)

grant the appeal in part; or

(d)

refer the matter back to the
    Director for reconsideration in accordance with any direction the Tribunal
    considers proper.

[71]

However,
    s. 29(3) of the Act limits the Tribunals remedial jurisdiction in one
    important way:

29. (3) The Tribunal shall not make a decision in an
    appeal under this Act that the Director would not have authority to make.

[72]

Because
    of s. 29(3), if the Director does not have discretion to forego recovery of an
    overpayment, then neither does the Tribunal.  However, the respondent goes
    farther.  She contends that s. 29(3) does not enlarge the Tribunals remedial
    powers and therefore does not give the Tribunal any authority to restrict the
    Directors collection of an overpayment or to order the Director not to recover
    part or all of an overpayment.

[73]

I
    do not accept the respondents contention.  Although s. 29(3) does not
    expressly state that the Tribunal has authority to make any decision the
    Director could have made, it does so implicitly by stating the negative: it
    cannot make a decision the Director does not have authority to make.

[74]

More
    generally, when a statute provides an appeal from a discretionary decision, the
    appellate tribunal should be able to exercise that discretion unless the
    statute specifically precludes it from doing so.  Jones and de Villars make
    this point in their text,
Principles of Administrative Law,
5th Ed.
(Toronto: Carswell, 2009), at p.
    611:

Difficult issues arise when considering whether the appellate
    body has the right to exercise a statutory discretion differently from the way
    chosen by the original statutory delegate.  Occasionally, the legislation in
    question may specifically prevent the appellate body from doing so, but this
    would appear to be rare.  In principle, the general rule should be the reverse:
    where an appeal is provided from the exercise of a statutory power which is
    discretionary in nature, the appellate body itself should be able to exercise
    the discretion granted by statute on the delegate from whom the appeal lies. 
    This is particularly clear where the only matter capable of being appealed is
    discretionary in nature

[75]

As
    the
ODSPA
does not specifically preclude the Tribunal from exercising
    the discretion over overpayments given to the Director, the Tribunal may also
    exercise this discretion.  In doing so, it may restrict the Directors
    collection of an overpayment, as it did in this case.

[76]

Two
    additional points reinforce this conclusion.  First, under the general
    regulations to the Act, O. Reg. 222/98, the Tribunal has wide powers in the
    conduct of its hearings.  It may admit evidence at a hearing and make its own
    findings of fact.  Subsection 67(2) and (3) of the regulations provide:

67. (2) The Tribunals findings of fact shall be
    based exclusively on evidence admissible and facts of which notice may be taken
    under sections 15, 15.1, 15.2 and 16 of the
Statutory Powers Procedure Act
.

(3) The Tribunals decision shall include the
    principal findings of fact and its conclusions based on those findings.

These wide powers suggest that the legislature intended
    the Tribunal to have authority to do what the Director can do and to come to
    its own decision on the merits of a case.

[77]

Second,
    the respondents position would undermine disabled recipients access to
    justice.  Instead of being able to go to the Tribunal for the prompt,
    inexpensive and efficient resolution of their disputes with the Director, they
    would be obliged to mount an expensive court challenge if they wanted to
    contest a Directors decision.  This can hardly be a result the legislature
    intended.

[78]

In
Steel v. Canada (Attorney General)
, 2011 FCA 153, 1 F.C.R. 143,
    Stratas J.A. of the Federal Court of Appeal came to a similar conclusion in
    connection with unemployment insurance overpayments.  The
Employment
    Insurance Act,
S.C. 1996, c. 23
expressly permits the Employment Insurance Commission to write-off
    overpayments.  For years, however, there was a question whether Boards of
    Referees had that power as part of their appellate jurisdiction.  Stratas J.A.
    held that they did.  At para. 76 of his reasons, he observed:

A contrary interpretation would mean that the writing-off of
    liabilities to repay the overpayment of benefits, a matter related to the
    entitlement to employment insurance benefits, would be diverted from this
    informal, specialized, efficient regime into the slower, more formal, more
    resource-intensive court system.  That interpretation makes no sense.  Only the
    clearest of statutory wording, not present here, could drive us to such a
    result.

I would adopt and apply these observations to the scope
    of the Tribunals appellate jurisdiction.

[79]

I
    conclude that the Social Benefits Tribunal has authority to restrict the
    Directors recovery of an overpayment and order that part or all of an
    overpayment not be recovered.

(b)

The
    Prematurity Issue

[80]

The
    respondents alternative argument is that the Director had not taken steps to
    collect Surdivalls overpayment and thus the Tribunals order was premature. 
    This argument fails on the facts.  Before Surdivall turned 65 years of age, the
    Director had already begun to recover the overpayment: $35.85 was deducted from
    Surdivalls monthly income support benefit.  Moreover, once Surdivall turned
    65, the Director demanded recovery of the balance of the overpayment.  Thus I
    would not give effect to the respondents prematurity argument.

D.

conclusion

[81]

This
    appeal raises two questions. First, does the Director have authority to forego
    recovery of part or all of an overpayment of income support to a disabled
    recipient?  Second, does the Social Benefits Tribunal have authority to restrict
    the Directors recovery of an overpayment and order that part or all of an
    overpayment not be recovered?

[82]

I
    would answer yes to both questions.  Accordingly I would allow the appeal and
    reinstate the Tribunals order.  As Surdivall does not ask for costs, I would
    make no order for the costs of the appeal.

Released: March 31, 2014 (J.L.)

John Laskin J.A.

I agree. S.T. Goudge J.A.

I agree. K. Feldman J.A.





[1]
Instead he became eligible for Canada Pension Plan and Old Age Security and
    Guaranteed Income Supplement Benefits.  His total income still remained below
    the poverty line.



[2]
One deduction was made while Surdivall was receiving income support from the
    ODSP.



[3]
The Director also has duties prescribed in the regulations.



[4]
At para. 20 of its reasons, the Divisional Court seems to suggest that
    Surdivalls appeal was brought under s. 16(3) of the Act.  However, s. 16(3) is
    an enforcement provision.  It provides:

16. (3) If the decision is
    appealed and an overpayment is determined, the decision of the Tribunal shall
    be final and enforceable against the recipient as if it were an order of the
    Superior Court of Justice.

Thus Surdivalls appeal was under s. 21(1), not s.
    16(3) of the Act.


