



COURT OF APPEAL FOR ONTARIO

CITATION:

Walsh v. Ontario
    (Disability Support Program), 2012 ONCA 463

DATE:  20120629

DOCKET: C54712

Juriansz, LaForme and Ducharme JJ.A.

BETWEEN

Diane Walsh

Appellant

and

Director of the Ontario Disability Support
    Program

Respondent

Lesli Bisgould and Martha Macfie, for the appellant

Mimi Singh, for the respondent

Heard: April 20, 2012

On appeal from the order of the Divisional Court (Jennings,
    Gray and Ramsay JJ.), dated March 11, 2011, with reasons by the court reported
    at 2011 ONSC 1526, allowing the appeal from the decision of the Social Benefits
    Tribunal dated December 17, 2008.

H.S. LaForme J.A.:

OVERVIEW

[1]

Diane Walsh is a 63 year old woman with numerous mental and
    physical disabilities. Since about 1993, she has been receiving disability
    benefits under the
Ontario
Disability Support Program Act, 1997
, S.O. 1997, c. 25, Sched. B
(ODSPA and the Act). 
    I
n September 2005,
the Director of the Ontario Disability Support Program
    (the "Director") suspended
Ms.
    Walshs benefits as a result of her failure to comply with an eligibility
    review.

[2]

In July 2007, Ms. Walsh obtained legal assistance, sought a review of
    the Directors decision and commenced an appeal to the Social Benefits Tribunal
    (the Tribunal).  The Tribunal rescinded the Directors decision and
    reinstated Ms. Walshs benefits. It held that her non-compliance was the
    product of her disabilities, which interfered with her ability to understand what
    was required of her.  The Tribunal granted her appeal and its Acting Chair
    later confirmed the decision.

[3]

The Director appealed the Tribunals
    decision to the Divisional Court, which overturned the decision on March 11,
    2011.  It held that the Tribunal lacked jurisdiction to hear the appeal from
    the Directors decision. The appeal was statute-barred after one year from the
    date of the decision.

[4]

Ms. Walsh appeals
from
the Divisional Courts decision.

BACKGROUND

[5]

As mentioned, Ms. Walsh is 63 years old and her mental
    and physical disabilities have made it necessary for her to rely on support
    under the Ontario Disability Support Program (ODSP) and its predecessor since
    about 1993.  Her disabilities are longstanding.

A.

The History of the Suspension

[6]

In 2005, the Director of the ODSP began a routine
    financial update of Ms. Walsh's file called the Consolidated Verification
    Process.  The process is directed at verifying ongoing financial eligibility as
    prescribed by the legislation.
Between July 6, 2005, and September 13,
    2005, the Director sent five letters to Ms. Walsh seeking information to
    establish her ongoing eligibility.

[7]

In the first letter, dated July 6, 2005, the Director
    notified Ms. Walsh that she was to attend an in-person interview on July 21,
    2005, and provide certain information.  A list of the required information was
    said to be attached to the letter.  Ms. Walsh asserts that no such list was
    attached.

[8]

The second letter, dated July 21, 2005,  the same
    date that the first letter had set for an interview  notified Ms. Walsh that
    her benefits were being suspended as of August 1, 2005, because of
    "Information missing.

[9]

The third letter, dated August 4, 2005, referred
    to the income support "you receive" from the ODSP.  It made no
    reference to any suspension of her income support; rather, it indicated that an
    update of the information on file was needed.  The letter went on to advise Ms.
    Walsh that another in-person appointment had been scheduled for August 15,
    2005.  Attached to the letter was a checklist of the information required.

[10]

In August 2005, Ms. Walsh responded to the Directors letters.  Apparently,
    she sent all of the information that the Director required.  In a letter to the
    Director dated August 24, 2005, she explained why she had been slow to respond
    to the requests.  She explained her health situation and her consequent
    inability to attend a meeting.  She expressed frustration, noting that she had
    had a stroke a while back and could not handle stress.
She concluded
    the letter by saying that she could no longer fight for her disability,
    stating, I dont need it. Thanks anyway.

[11]

In response to Ms. Walshs August 2005 correspondence, the Director
    sent her two more letters, both

dated September 13, 2005.  One stated
    that her income support was suspended as of September 1, 2005, because of
    "Information missing".  However, the other letter acknowledged that
    Ms. Walsh had provided the necessary information, but indicated that she must
    come in to the office on October 5, 2005, to complete and sign a form.

[12]

Nevertheless, Ms. Walshs benefits were suspended effective
    September 1, 2005,  before the October 5 date
to complete the
    review
referred to in the Directors second letter of September 13, 2005
.

[13]

In
June 2006,
Ms. Walsh
successfully applied for income assistance under the
Ontario Works
    Act
,
1997, S.O. 1997, c. 25,
    Sched. A ("OWA").  For reference purposes, benefits through Ontario
    Works are less than those provided through the ODSP: see
Asgedom v. Ontario (Ministry of Community and Social Services),
2010 ONSC 939, 259
    O.A.C. 144, at para. 16.

[14]

On
    July 23, 2007, after receiving legal advice, Ms. Walsh asked the Director to
    extend the time for conducting an internal review of the September 2005
    decision.  By letter dated July 24, 2007, Ms. Walshs request for an internal
    review was denied because the request for internal review was due by September
    27, 2005.  The Director was not prepared to extend the time for this review. 
    These facts are central to this appeal, which I will discuss in more detail
    below.

[15]

On August 7, 2007, Ms. Walsh appealed the Directors September
    2005 decision suspending her benefits to the Tribunal.  Independent of the
    appeal,
Ms. Walsh re-applied for ODSP benefits; she qualified and benefits
    were re-instated.  She was receiving benefits in 2008 when the Tribunal heard
    her appeal.  I would note, however, that the appeal is not moot given that
    disability benefits for the period when she was not receiving them are still at
    issue.

B.

The Relevant Legislative
    Provisions in Brief

[16]

Together
    with O. Reg. 222/98 (the Regulation or Reg.), the ODSPA sets out the appeal
    routes and procedure for decisions made under the Act.  An appeal of a
    Directors decision to suspend benefits lies to the Tribunal: s. 21(1).
    However, before such an appeal can be commenced, an internal review must be
    requested within 10 days of receipt of the Directors decision: ODSPA, s. 22
    & Reg., s. 58(1).
[1]
Although the Director has the power to extend the time to seek an internal
    review, its decision on the matter is not appealable: Reg., s. 58(3); ODSPA, s.
    21(2) & Reg., s. 57.

[17]

Once
    the Directors decision to suspend benefits becomes final, the appeal to the
    tribunal must be brought within 30 days: ODSPA, ss. 20(3) & 23(1) &
    Reg. S. 61(1). Finally, s. 61(2) of the Regulation provides that: No appeal to
    the Tribunal shall be commenced more than one year after the date of the
    Directors decision.

C.

The Appeal to the Tribunal

[18]

On
    appeal to the Tribunal, Ms. Walshs position was that her disabilities made her
    incapable of complying with the Directors demands to complete the review forms
    and prolonged the date of effective notice of the Directors decision to
    suspend her benefits.  She argued that she did not
receive
effective
    notice of the Directors decision until the legal clinic informed her that she
    should seek an internal review. Prior to that time, she did not understand what
    she was required to do to pursue her rights.

[19]

The
    Director took the position that the Tribunal lacked jurisdiction to hear the
    appeal because it was brought outside of the one year limitation period set out
    in s. 61(2) of the Regulation. Further, the Director had declined to extend the
    time to seek an internal review, a necessary precursor to an appeal, and there
    was no right of appeal from that decision.

[20]

On
    December 17, 2008 the presiding member of the Tribunal decided that it did have
    jurisdiction to hear the appeal.  He concluded that the deadline for internal
    review was ambiguous and should be resolved in Ms. Walshs favour.

[21]

According
    to the member, the central issue was the date on which the Directors decision
    became effective.  Relying on s. 58(1) of the Regulation, which sets outs the
    prescribed time for requesting an internal review, the member reasoned that the
    Directors decision became effective when it was received. And, received was
    interpreted as meaning the time at which the appellant understood the decision:

To be received the Appellant must receive the decision; that
    is understand it.  The Tribunal is satisfied that the Appellant did not
    understand her rights under the legislation until she attended the local legal
    clinic and explained her situation to them.  This meeting occurred less than
    ten days before the July 23, 2007 request for an Internal Review.  Therefore,
    the options before the Tribunal are to find that the date from which the time
    for an Internal Review starts is July 31, 2005 or 10 days before the appeal was
    made.

[22]

The
    member found that the health issues that disabled Ms. Walsh were also responsible
    for her failure to satisfy the Directors demands for information and attending
    meetings.  In light of this, the Director was held to have a positive duty to
    ensure that Ms. Walsh completed the forms, which included attending at her
    residence if necessary.

[23]

The
    member referred to this courts decision in
Gray v. Ontario (Disability
    Support Program Director)
2002, 59 O.R. (3d) 364, at para. 9, where it was
    held that the ODSPA is remedial legislation and should therefore be interpreted
    broadly and liberally and in accordance with its purpose of providing support
    to persons with disabilities. Furthermore, any ambiguity in its interpretation
    should be resolved in the claimants favour.

[24]

Finally,
    the member concluded that:

there is ambiguity as to the effective date of the
    Respondents decision and therefore as to the deadline for an Internal Review. 
    In accordance with the
Gray
decision the Tribunal accepts jurisdiction
    of the appeal.

[25]

On
    the merits, the Tribunal concluded that the Directors decision to suspend Ms.
    Walshs benefits should be rescinded.  It ordered that Ms. Walsh was eligible
    for retroactive support from September 1, 2005, to the present.

[26]

The
    member acknowledged the Directors position that the Tribunal was without
    jurisdiction to hear Ms. Walshs appeal because she failed to appeal within the
    one year time limit, and that there was no appeal from its decision that Ms.
    Walshs review request for an internal review was out of time. However, he did
    not address these arguments in the Tribunals reasons.

D.

Tribunal (Acting Chair)

[27]

The
    Director applied to the Acting Chair of the Tribunal for a reconsideration of
    the Tribunals decision.  On March 30, 2009, the request was refused because,
    in the Acting Chairs opinion, the Tribunals reasons focused on Ms. Walshs
    problems and difficulties and found that: (i) she was incapable of complying;
    (ii) she did not understand the notice; and (iii) the ODSP is required to
    accommodate persons like Ms. Walsh.  The Acting Chair found that the Tribunals
    decision was eminently reasonable and correctly found that [it] had
    jurisdiction  the Director was incorrect in the decision to suspend Ms.
    Walshs income support.

E.

The Appeal to the Divisional Court

[28]

The
    Director appealed under s. 31 of the Act to the Divisional Court on the basis
    that the Tribunal acted without jurisdiction, and, specifically, that the presiding
    member of the Tribunal did not address: (i) the Directors refusal to extend the
    time for an internal review; or (ii) the one year limitation in s. 61(2) of the
    Regulation.

[29]

The
    Divisional Court allowed the appeal and agreed that the Tribunal acted
    without authority in hearing the appeal.  It held that regardless of the
    correct interpretation of the word received, the Tribunal lacked jurisdiction
    to hear the appeal because it was brought outside the one year limitation
    period found in s. 61(2) of the Regulation, stating at para. 5:

Even if the Board made no error in its interpretation of the
    statutory and regulatory provisions relating to the period in which an internal
    review may be requested, we are of the view that subs. 61(2) of the Regulation
    provides an overriding prescription that ends one year after the Director's
    decision is made, whenever the decision is considered final and whenever it
    becomes effective. This one-year limit applies whether or not the requirements
    for requesting an internal review are complied with.

[30]

The
    court further held that the Regulation was within the scope of the authority
    delegated to the Lieutenant-Governor-in-Council under the Act and fit within
    the purpose and scheme thereof. The court explained the purpose and scheme of
    the Act at paras. 9-11:

The scheme of the Act is to provide an expeditious review and
    appeal to a person who has been denied benefits and to provide a further
    opportunity to apply for benefits for needs that arise at a later time, or if
    new or other evidence of need becomes available. Under s. 10 of the Act, a
    person who has been denied benefits may apply again "upon new or other
    evidence or if material circumstances have changed." In fact, the
    respondent has done this and is currently receiving benefits.

The Regulation confines the review and appeal to a time period
    reasonably close to the situation that existed at the time of the denial,
    leaving later needs to be dealt with under s. 10 of the Act.  This is
    consistent with the purpose and scheme of the legislation.

The Director's decision was made on July 21, 2005.  The appeal
    was filed on August 7, 2007.  We do not need to decide whether the Tribunal had
    jurisdiction under subs. 23 (2) of the Act to extend the time for filing an appeal
    beyond the one year prescription.  The Tribunal was not asked to extend the
    time, and it did not do so.  Rather it erroneously decided that the appeal had
    been commenced within the prescribed time.  In hearing the appeal the Tribunal
    acted without jurisdiction.  The appeal is allowed and the order of the
    Tribunal is set aside.

ISSUE ON APPEAL

[31]

The focus of the appeal is whether the Divisional Court correctly concluded that the Tribunal lacked jurisdiction to hear Ms.
    Walshs appeal. Specifically at issue is whether the Tribunal erred in law in
    failing to consider the prescription against appeals commenced more than one
    year after the Director's decision is made and the Directors refusal to extend
    the time to seek an internal review.  In essence,
it is about how timelines for appealing decisions
    regarding a person's entitlement to income support pursuant to the ODSPA should
    be interpreted.

Positions of Counsel

A.      M
s. Walsh

[32]

Ms.
    Walsh, of course, favours the approach to timelines taken by the Tribunal. 
    That is, she submits that timelines for appeals under the Act are contingent on
    when the Director's decision is "received".  And, just as the
    Tribunal found, she says that because of her disabilities she did not 
receive
the Director's decision to suspend her
    benefits until she
understood
it.  Thus, she
    contends, her appeal was commenced within statutory time limits.

[33]

In the alternative,
Ms. Walsh
submits
that even if the appeal was commenced
    beyond the established time limits, s. 23(2) of the Act actually authorizes the
    Tribunal to extend the time for appealing a decision if it is satisfied that
    there are apparent grounds for an appeal and reasonable grounds for applying
    for the extension.

B.      T
he Director

[34]

In
    a contrary argument, the Director submits that by virtue of the combined effect
    of s. 61(2) of the Regulation and s. 21(2) para. 5 of the Act, no appeal to the
    Tribunal from a decision of the Director of the ODSP affecting eligibility for,
    or the amount of, income support, may be commenced more than one year after the
    date of the Directors decision.  Therefore, the Tribunal lacked jurisdiction
    to hear Ms. Walshs appeal since it was brought more than one year after the
    Directors September 13, 2005 decision.

ANALYSIS

[35]

I
    will discuss each of Ms. Walshs arguments in order.  Ultimately, however, I
    conclude that her appeal cannot succeed.  I arrive at the same conclusion as
    the Director; if Ms. Walshs arguments were to prevail, the purpose and scheme
    of the legislation would be thwarted.  Certainly, timelines for internal
    reviews and appeals would be virtually eliminated, unnecessary delays would
    result, and unfairness would be inserted into the scheme.  Consequently, as I
    will explain, the appeal should be dismissed.

[36]

I begin with an observation agreed on by both
    parties to this appeal: the Act and Regulation must be interpreted in
    accordance with what is termed the modern approach.  This involves a contextual
    and purposive analysis of the impugned provisions and the statute itself, the
    history of the specific provisions, the overall scheme of the Act and
    regulations, and, finally, the intention of the legislature in enacting both the
    specific provisions and the scheme as a whole:
Rizzo & Rizzo
    Shoes Ltd. (Re)
,

[1998] 1 S.C.R. 27, at para. 21. 
    This is the approach I have taken.

A.      Did the Tribunal have
    jurisdiction to hear Ms. Walshs appeal?

[37]

Ms.
    Walsh contends that the Divisional Court failed to apply the correct approach
    to its interpretation of the Act.  Specifically, she argues that the court
    erred by interpreting s. 61(2) of the Regulation as providing "an
    overriding and absolute prescription on all appeals that ends one
year after the Director's decision is made, regardless
    of disability, human rights or any other issues."  I disagree.

[38]

Some
    further detail to the background of what transpired in this case and the
    working of the ODSP demonstrates the correctness of the Divisional Courts
    decision.

(i)

Additional background

[39]

On
    July 23, 2007, Ms. Walsh made a formal request for an extension of time to seek
    an internal review of the September 2005 suspension of her benefits.  Her
    reasons for the request were, because I was too sick at the time to do
    anything about this decision.  By letter dated July 24, 2007, the Director
    responded to Ms. Walshs request and reminded her that her request for an
    internal review was due by September 27, 2005.  The letter goes on to
    reproduce s. 58(1) and (3) of the Regulation:

(1) The prescribed time for requesting an internal review is 10
    days from the day the decision is received or deemed to have been received
    under section 50 of the Act.  [Since amended to be 30 days]

...

(3) The Director may hold an internal review even if it was not
    requested within the prescribed time if the Director is satisfied that the
    applicant or recipient was unable to request an internal review within that
    time because of circumstances beyond his or her control.

[40]

The
    letter reaffirmed the decision to suspend Ms. Walshs benefits and denied her
    request to extend the time for an internal review.  It concluded with this
    statement: your request for internal review [is deemed] to be out of time you
    do not have further recourse to appeal this decision.

[41]

On
    August 7, 2007, Ms. Walsh applied to the Tribunal to appeal the decision to
    suspend her benefits.  Notably, her appeal did not provide notice to the
    Tribunal of any human rights issue or a challenge under the
Human Rights
    Code
as provided for by the Tribunal's rules of practice.  Furthermore, no
    evidence supporting such claims was put before the Tribunal.

[42]

Responding
    to Ms. Walshs application to the Tribunal  in accordance with ss. 23(7) and
    (8) of the Act  the Director provided written submissions dated September 27,
    2007.  In the submissions the Director contended that it:

has the authority to determine the decision out of time with
    no further recourse to appeal.  This is a
prescribed decision
made,
    which is not appealable to the Tribunal Further the Tribunal is limited as
    well as the decision was made more than one year in the past. [Emphasis added.]

[43]

The
    submissions go on to enumerate s. 58(1) and (3) of the Regulation and s. 21(2)
    para. 5 of the Regulation, which provides:

(2) No appeal lies to the Tribunal with respect to the
    following matters:

5.  A prescribed decision.

[44]

Additionally
    the submissions briefly describe the background leading up to the Directors
    decision.  They conclude with this: the decision to suspend her allowance in
    2005 is clearly out of time to appeal and as a prescribed decision, outside the
    jurisdiction of the Tribunal.

[45]

Nevertheless,
    as I noted earlier, the Tribunal decided that the Director was wrong.  The
    member found that the Tribunal did indeed have jurisdiction to hear the appeal;
    that the deadline for internal review was ambiguous, and that the ambiguity
    should be resolved in Ms. Walsh's favour.  In spite of the Directors clear
    submissions, the Tribunal did not address the fact that the Director had
    refused to extend the time for internal review or the one year time limit to
    bring an appeal.  In other words, neither s. 21(2) para. 5 of the Act, nor s.
    61(2) of the Regulation was addressed.

[46]

The
    Divisional Court agreed with the Director and set aside the order of the
    Tribunal finding that, even if the Tribunal made no error in its interpretation
    for when internal review may be requested, s. 61(2) of the Regulation
    "provides an overriding prescription that ends one year after the
    Director's decision is made, whenever the decision is considered final and
    whenever it becomes effective."

(ii)

Interpreting the ODSPA

(a)

Purpose
    and scheme

[47]

The purpose of the Act, as the Divisional Court observed at para.
    8 of its reasons, is to provide for the basic needs and shelter of a person
    under disability on a monthly basis.
Among the
    purposes of the Act listed in s.
1 are the effective delivery of
    assistance to persons in need, and accountability to the taxpayers of the
    province.
B
ecause
    the Act is meant to ensure support for disabled persons, it must be interpreted
    in a broad and generous manner
with any ambiguity resolved in favour of
    the claimant, recipient or dependent
.  No one takes
    issue with this observation.

[48]

Section 5 of the Act sets out the eligibility requirements for
    income support. It requires a recipient, like Ms. Walsh, to provide ongoing
    financial information as a condition of eligibility.  Where an applicant,
    recipient or dependent fails to comply with this requirement, s. 9(1) of the
    Act and s. 23 of the Regulation, make it mandatory for the Director to suspend
    or cancel that persons income support. That is clear from the mandatory
    language of the provisions, as well as the decision in
Rea v. Simcoe (County Administrator, Social Services Department)
(2005),
79 O.R. (3d) 583, at para. 3
,
where
    this court held that the equivalent provisions of the OWA made termination
    mandatory as a result of non-compliance with eligibility requirements.

[49]

No
    doubt s. 5 is meant to attend to the legislative purpose of accountability to
    the taxpayers.  In any case, even if benefits are suspended for non-compliance,
    once compliance is re-established and the required information provided, s.
    9(2) of the Act permits the Director to expeditiously re-instate income support
    to its former level based on a new application.  Incidentally, this is what
    occurred in Ms. Walshs case.

(b)

Prescribed decision: no internal review, no extension of time, no right
    of appeal

[50]

Section
    21 of the Act allows that any decision of the Director affecting eligibility
    for income support can be appealed to the Tribunal, except for, among others, a
    prescribed decision.  A prescribed decision
includes
    a decision of the Director not to extend the time [to request an internal
    review] as set out in subsection 58 (3). The Directors letter of July 24,
    2007, advising that the time to request an internal review had passed and would
    not be extended, is precisely the type of decision referred to in the Act.  Further,
    the prescribed, and therefore unappealable, nature of the decision was expressly
    argued by the Director in its written submissions to the Tribunal, and
    unfortunately ignored.

[51]

Subsections
    22(1) and (2) of the Act allow a person that has received a Directors decision
    about eligibility, to commence an appeal of that decision to the Tribunal,
    provided that an internal review has been requested first.  Importantly, the request
    for internal review must have been made within the prescribed time, in this
    case 10 days: ODSPA, s. 58(1).  An extension of time for an internal review can
    be granted by the Director, if it is satisfied that the applicant did not
    request such a review because of circumstances beyond his or her control:
    ODSPA, s. 58(3).

[52]

In
    this case, the Director refused to extend the time for internal review. That
    decision was, by law, not appealable.  As I described above, and as the
    Director specifically wrote in its submissions to the Tribunal, s. 21(2) para.
    5 of the Act and s. 57(1) of the Regulation specifically prohibit an appeal of
    such a refusal.

[53]

Section
    23 of the Act also speaks to appeals to the Tribunal, but again requires that an
    internal review has been requested:

(1) An applicant or recipient may appeal a decision of the
    Director within the prescribed period after an internal review by filing a
    notice of appeal that shall include reasons for requesting the appeal.

(2) The 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.

While subsection (2) allows the Tribunal to extend
    time to appeal, subsection (1) makes it clear that an internal review must have
    been requested within the prescribed time.

[54]

Here,
    an internal review was requested by Ms. Walsh, but it was some two years after
    the Directors decision to cancel her benefits.  The Director refused her
    request because it was out of time and declined to extend the time to make the
    request. The decision to do so was not appealable because it was a prescribed
    decision.

[55]

The
    ability of the Tribunal to extend the time to appeal a decision in s. 23(2) can
    only be speaking to the extension of the 30 day time limit to appeal from a decision
    of the Director for which there exists a right of appeal. The decision to deny
    the request to extend the time to seek an internal review is not appealable.  In
    other words, the Tribunal does not have the jurisdiction to extend the time to
    appeal from a prescribed decision of the Director.

[56]

In
    any case, the Divisional Court recognized that the issue was neither in play,
    nor dispositive, and I concur with the holding at para. 11 of its reasons:

We do not need to decide whether the Tribunal had jurisdiction
    under subs. 23 (2) of the Act to extend the time for filing an appeal beyond
    the one year prescription.  The Tribunal was not asked to extend the time, and
    it did not do so.  Rather it erroneously decided that the appeal had been
    commenced within the prescribed time.  In hearing the appeal the Tribunal acted
    without jurisdiction.

[57]

Ms.
    Walsh appears to have accepted the decision of the Director to cancel her
    benefits in 2005 and did not, at that time, make a request for an internal
    review.  It was not until 2007 that Ms. Walsh attempted to exercise her right
    to an internal review, and appreciating that she was seriously out of time,
    requested an extension of time to do so.  The Director denied her request. 
    While the Director could have extended the time for requesting an internal
    review, it refused to do so.  The Director's refusal to extend the time, as I
    have noted several times, is a prescribed decision that cannot be appealed to
    the Tribunal.

[58]

The
    unavoidable result is that the Divisional Court was correct in deciding this
    case as it did.  Ms. Walsh could not appeal the Directors decision to suspend
    her benefits without requesting an internal review within the prescribed time.
    She did not request an internal review within the prescribed time and the
    Director declined to extend the time period to do so. That decision was not
    appealable. The failure to make a timely request for an internal review left
    Ms. Walsh without a right of appeal of the Directors decision to suspend her
    benefits. The Tribunal therefore lacked jurisdiction to hear Ms. Walshs appeal
    from the decision to suspend her benefits. As an aside, it also lacked
    jurisdiction to entertain an appeal of the Directors decision not to extend
    the time for the internal review.

(c)

Ultimate
    limitation period of one year  s. 61(2)

[59]

In
    addition to the lack of a timely request for an internal review, the Tribunals
    jurisdiction to hear the appeal of the decision to suspend Ms. Walshs benefits
    was, as the Divisional Court held, circumscribed by operation of s. 61(2) of
    the Regulation. For ease of reference that section provides: No appeal to the
    Tribunal shall be commenced more than one year after the date of the Directors
    decision.

[60]

There
    is no ambiguity in this provision. To interpret it, as the Divisional Court
    did, as providing an overriding prescription [against appeal] that ends one
    year after the Directors decision is made, whenever the decision is considered
    final and whenever it becomes effective, was in keeping with the overall
    purpose and scheme of the legislation.

[61]

To
    interpret this provision any other way would render it moot.  But, moreover, it
    would open the door to uncertainty, virtually eliminating timelines for
    internal reviews and appeals, causing unnecessary delays, and inserting unfairness
    into the legislative scheme. This, of course, runs counter to the purpose of
    the ODSPA of providing for the basic needs and shelter of eligible persons with
    disabilities in a timely and cost-effective fashion, and in a manner that
    promotes accountability to Ontarios taxpayers. I would adopt the holding of
    the Divisional Court that s. 61(2) of the Regulation imports what is
    effectively an ultimate limitation period of one year to bring an appeal from
    an eligible decision of the Director.

[62]

While
    this is sufficient to dispose of the appeal, I believe that given the issues
    underlying the alternative grounds of appeal advanced by Ms. Walsh on this
    appeal, it will be helpful, and provide a measure of completeness, to offer
    some comment on them.

B.       Alternative grounds of appeal

[63]

Ms.
    Walsh argues that the Divisional Court failed to address all the issues she advanced
    and refers to some specific errors she alleges it made.  These include: (i) that
    the Director conducted an unreasonable eligibility review; (ii) that the
    Tribunal had jurisdiction to hear the appeal based on internal review; and
    (iii) that the Tribunal has the same power as the Director on internal review
    once an appeal is brought before it.  I will discuss each of these submissions
    in order with (ii) and (iii) being discussed together.

(i)     Unreasonable eligibility review

[64]

Ms. Walsh submits that the Director has considerable discretion as to
    the manner in which an eligibility review is conducted, and in determining what
    information is required.  S
uspending income
    support, she says, is a decision of last resort and requires recipients to be
    given a meaningful opportunity to comply.
Where the Director ultimately
    suspends income support, the Act requires that it must give the affected person
    written notice, which must include, among other things, reasons for the
    decision: see ODSPA, s. 19 & Reg., s. 56.  Ms. Walsh contends that the
    Director failed to properly exercise its discretion in deciding her eligibility
    in accordance with these principles.

[65]

I
    disagree.  First, this argument only becomes relevant if the Tribunal had
    jurisdiction to hear the appeal, which it did not.  The Divisional Court,
    therefore, did not err by not dealing with it.  Second, the Director's conduct
    is not relevant.  As this court made clear in
Rea
, s. 9 of the Act
    makes it mandatory for the Director to suspend or cancel income support where
    there is non-compliance with the financial reporting condition of eligibility. 
    The Director was obliged, in all the circumstances of this case, to cancel Ms.
    Walshs benefits and would have been in breach of the legislation had it not
    done so.

[66]

Ms.
    Walsh also submits that the Directors decision was unreasonable because it
    violated the
Human Rights Code
in that it failed to consider and
    accommodate her disabilities. The Divisional Court's interpretation of s. 61(2),
    she says, perpetuated this violation by ignoring human rights concerns in
    interpreting the Act and Regulation.

[67]

The
    alleged violation of human rights is being raised for the first time on this
    appeal.  Ms. Walsh did not raise this argument with the Tribunal. And, because
    the Divisional Court was not alerted to this issue, it would not be appropriate
    on this record to suggest that the court erred by failing to do so.  Inherent
    in the appellate function is the requirement that in most cases, issues should
    be raised and adjudicated upon before they will be considered on appeal:
R.
    v. Rollocks
(1994),
19 OR (3d) 448
(Ont.
    C.A.), at p. 453.

(ii)
    & (iii) The Tribunals jurisdiction on internal review and powers on appeal

[68]

Section
    58(1) of the Regulat
ion prescribes the time for
    requ
esting an internal review as 10 days from the day the decision is
    received
or deemed to have been received
under s. 50 of the Act
    (emphasis added).  Ms. Walsh does not deny that the Director's letters arrived
    at her home around the time they are dated; it is their substance, and her
    capacity to understand and comply that is in issue.

[69]

As
    I understand Ms. Walshs submissions, it is the Tribunals findings of fact
    that form the substance of this ground of appeal.  That is, the Tribunal found
    that Ms. Walsh's disabilities were responsible for her failure to fully satisfy
    the Director's demands for information and meeting times, and that the Director
    had a duty, pursuant to its own policy, to assist her in completing the forms
    as required - including by way of a home visit if necessary.  The Director's
    failure to do so, she says, was a violation of its own policy.  The Tribunal, on
    the other hand, correctly adopted a liberal interpretation of the Act and the
    Regulation.  It considered the impact of the claimants disabilities in
    determining when a Directors decision to suspend benefits was received for
    purposes of bringing an internal review and then appealing that decision: see
    Reg., s. 58(1).

[70]

Essentially,
    Ms. Walsh argues that an appeal can proceed within 10 days following a request
    for an internal review, the timeline being triggered when a person receives and
    understands the Director's decision.  In effect, she says that once a person
    requests an internal review, an appeal to the Tribunal can be made regardless
    of the Directors decision.  That includes, whether the Director refuses,
    delays or fails to hold an internal review, or whether it conducts the review
    and upholds the original decision.

[71]

The
    result of Ms. Walshs claims is that once the matter is before the Tribunal,
    it can make any decision that the Director could have made, on internal review
    or otherwise.  She adds that while s. 61(1) of the Regulation prescribes that
    an appeal is to be commenced within 30 days after the Director's decision is
    final, s. 23(2) of the Act gives the Tribunal the power to extend the time for
    appealing, and
the Act puts no limit on the
    length of the extension which the Tribunal may grant
.

[72]

I have already indicated that the Divisional Courts treatment of
    s. 23(2) was both appropriate and correct.  However, Ms. Walsh urges this court
    to consider some additional arguments that she says illustrate why the Divisional Court erred
.

[73]

Ms.
    Walsh submits that the Divisional Court found that the appeal was commenced
    outside of the one year limitation period that provides an overriding
    prescription for appeals, and for that reason it did not consider the meaning
    of s. 58 of the Regulation.  That is, the Tribunal  exercising its powers for
    those of the Director prescribed in s. 58  could hold an internal review after
    the 10 day time limit if satisfied that the Ms. Walsh was unable to request an
    internal review because of circumstances beyond her control.

[74]

I
    do not accept that the court was in error in not considering this argument. 
    First, this once again presumes that the Tribunal had jurisdiction to hear Ms.
    Walshs appeal in the first place; it did not.

[75]

Second,
    Ms. Walshs submissions dramatically distort the purpose and scheme of the
    legislation.  Taken together the Act and Regulation provide a complete code
    regarding appeals from a Directors decision.  They include a series of
    provisions that regulate the timelines for appeal forming a coherent and
    workable scheme.  Ms. Walsh is urging that the word "receive" in s.
    58(1) have a different meaning for the purpose of the timeline for requesting
    internal review than its meaning elsewhere under the scheme.

[76]

As
    I have explained, the scheme requires a person to satisfy eligibility requirements
    to receive benefits, failing which the Director is required to suspend or
    cancel their payment.  Where the Director makes such a decision the person has
    a right of appeal to the Tribunal, but must do so within the legislated timeframes
    and having regard for the legislated procedure.  A request for an internal
    review  which at the time had to be commenced within 10 days of the Directors
    decision  is a prerequisite to an appeal to the Tribunal.  And, no appeal to
    the Tribunal can be commenced beyond one year after the date of the Director's
    decision.

[77]

To
    repeat, the purpose of the legislative scheme is to provide for the basic needs
    and shelter of a person under disability on a monthly basis.  It is to do so
    through the effective delivery of assistance to persons in need and with
    accountability to the taxpayers.  This in turn requires fair and expeditious
    review and decision-making, which includes review and opportunity for appeal. 
    Ms. Walshs interpretation, if accepted, would run entirely contrary to this
    scheme.  That is, it would virtually eliminate certainty as to timelines for
    internal reviews and appeals; cause unnecessary delays, and create unfairness.

[78]

The
    Act seeks to compensate for any perceived unfairness arising from the timelines
    in two ways: the right to re-apply; and the Directors ability to extend the
    time under s. 58(3) of the Regulation for requesting internal review.  Ms.
    Walsh availed herself of both of these.

DISPOSITION

[79]

For
    the foregoing reasons I would dismiss the appeal.  Given the position of the
    Director in oral argument, I would make no order as to costs.

Released:

JUN 29 2012                                    H.S.
    LaForme J.A.

RJ                                                   I
    agree Russell Juriansz J.A.

I
    agree E. Ducharme J.A.





[1]
Unless otherwise stated, all references to timelines under the ODSPA refer to
    the timelines in place at the time of the Directors decision to suspend
    benefits. The Act has since been modified and the timeline for requesting an
    internal review is now 30 days.


