October 2024

The Social Benefits Tribunal (SBT) is part of Tribunals Ontario.

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

The SBT also considers challenges to the OWA and ODSPA and related regulations under the provisions of the Ontario Human Rights Code.

There are two parts to the rules that govern the procedures of the SBT. Part I comprises the Social Justice Tribunals Ontario (SJTO) “Common Rules of Procedure” and Part II comprises the "Social Benefits Tribunal Specific Rules” . Both parts should be read together.

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

More information on the SJTO Common Rules of Procedure, SBT Rules of Procedure, SBT Practice Directions and SBT Forms may be accessed at: https://tribunalsontario.ca/sbt/

Summary of policy

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

Most decisions of the Director affecting eligibility for or the amount of income support are appealable to the SBT. However, some decisions, including prescribed decisions under section 57 of Ontario Regulation 222/98 , are not appealable.

The SBT can order payment of interim assistance if it is satisfied that the recipient will suffer financial hardship pending the determination of the appeal and that conditions of eligibility, other than those under appeal, have been met. Interim assistance is not available to an applicant because they can ask for financial assistance under the Ontario Works Act pending the determination of an ODSP appeal. Written submissions must be served on the other parties in the proceedings and filed with the SBT in accordance with the timelines set out in the SBT Rules.

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

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

Legislative authority

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

Summary of directive

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

Intent of policy

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

Application of policy

Standards

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

Appeals must be preceded by a request for an internal review

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

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

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

Jurisdiction of the Social Benefits Tribunal

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

The SBT cannot hear an appeal about:

  • A decision respecting discretionary income support
    • A decision to deny the Discretionary Benefit for low-cost energy-conservation measures is not appealable to the SBT. However, if the recipient disagrees with the decision and requests an internal review, the internal review should be completed but the decision letter will say that the matter cannot proceed on appeal to the SBT
  • A decision of the Lieutenant Governor in Council respecting income support in exceptional circumstances
    • This refers to income support provided based on an Order-in-Council, where a client may not otherwise be eligible
  • A decision to provide a portion of income support directly to a third party
    • Examples include direct payment of rent to a landlord and direct payment of heat or utility costs
  • A variation, refusal or cancellation of income support caused by an amendment to the ODSP Act or the General Regulation
    • This would apply where the person is really objecting to a change in the legislation or regulation, but not where there is an issue as to how the changed eligibility rules apply to them because that would be appealable
  • A prescribed decision under section 57 of Ontario Regulation 222/98
    • The following cannot be appealed:
      • a decision of the Director not to extend the time for an internal review
      • a decision to refuse, suspend, cancel or reduce income support based on the death of a member of the benefit unit;
      • a determination that an application is deemed to have been withdrawn when requested information necessary to determine eligibility as a person with a disability has not been provided in ninety days and no extension of time is given to provide the information;
      • a decision to set a date to review a person's disability status;
      • a decision that the date of grant is on or before the day on which the application is completed
      • a decision that the date of grant is on or before the 1st day of the month following the completion of an application, for applicants who were in receipt of Ontario Works when they applied for ODSP
    • No appeal to the SBT is available on a decision regarding employment supports

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

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

The SBT shall refuse to hear an appeal if it determines the appeal to be frivolous or vexatious.

Human Rights Code claims

An appellant who intends to make Human Rights Code arguments as part of their appeal to the SBT must follow the SBT Rules of Procedure and consider the “Practice Direction on Human Rights Issue or Challenge”.

That means they will need to complete the Notice of Human Rights Code Claim (Form 4).

The SBT will acknowledge receipt of the Form 4 and provide a copy to the Director, Legal Services Branch (LSB) and Constitutional Law Branch (CLB) prior to the appeal hearing.

The Tribunal will schedule a pre-hearing teleconference with all of the parties (including LSB counsel) to determine whether the appeal should be bifurcated into a stage one hearing on the merits followed by a stage two hearing on the human rights issues if the appeal is dismissed at stage one.

If the appeal is of two stages, the Case Presenting Officers for the Director would handle the stage one hearing on the merits and if the matter proceeds to stage two then LSB/CLB counsel will defend the impugned legislation/regulation.

Filing an appeal

To file an appeal with the SBT, an applicant/recipient must use the SBT Appeal form (Form 1). The appellant must include reasons for the appeal on the form.

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

  • the day the prescribed time for completing the internal review expires, which is 30 days after receiving the request;
  • the day the results of the completed internal review are received by the applicant/recipient; and
  • the day the results of the completed internal review are deemed to have been received (which is 3 days after mailing)

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

No appeal to the SBT can be commenced more than 1 year past the date that the Director’s decision became final as above.

Interim assistance

The SBT can order the Director to pay interim assistance to a recipient if it is satisfied that the recipient will suffer financial hardship pending the determination of the appeal and that all conditions of eligibility, other than those under appeal, have been met. To request interim assistance, recipients must complete the "Application for Interim Assistance" (Section 4 of the Appeal (Form 1)).

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

An interim assistance order (IAO) must be implemented unless it is opposed within 7 calendar days of receiving it. Only the SBT can cancel or vary an interim assistance order. If the Director disagrees with the IAO, the reasons should be set out in writing, including information about the recipient’s financial circumstances and whether they have breached another condition of eligibility that is not under appeal. The interim assistance order remains in effect unless the SBT grants the request to have it cancelled or amended.

Recovery of interim assistance

When a recipient applies for and is granted interim assistance, they are told within the interim assistance order itself, that if their appeal is dismissed then the amount of interim assistance they received which they are now not entitled to, given the dismissal of their appeal, shall be deemed to be an overpayment.

In the particular case of a medical review appeal that is dismissed, ODSP policy dictates that recovery of the interim assistance is limited to the difference between the interim assistance paid and the amount that the recipient would have been eligible to receive under Ontario Works for the same period. The balance is recommended for write-off (see ODSP Directive 13.3 - Recovery of interim assistance).

Responding to an appeal

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

The Director is responsible for completing the Response to Appeal (Form 3) within 30 calendar days of receiving the Appeal form (Form 1), serving it on the appellant and any other parties to the appeal, and then filing it with the SBT within the 30-day timeframe.

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

  • the contact information for the Director’s representative ( Case Presenting Officer or “CPO”)
  • whether the CPO will be filing written submissions and if so, whether they are being filed at the same time as the Form 3 or later on
  • whether the CPO will be attending the hearing or instead will be relying on the written submissions alone
  • whether there are any preliminary and/or jurisdictional issues that arise from the appeal form which will be discussed in full detail in the submissions

Written submissions

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

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

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

Where the appellant intends to rely on written submissions and evidence, this must be served on all the parties to the appeal and filed with the SBT at least 20 calendar days before the hearing.

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

Disclosure of witnesses

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

Attendance at the hearing

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

  • deny the appeal where the appellant has failed to appear without reasonable cause.
  • determine the appeal on its merits based on the materials before it; or
  • take any other action it considers appropriate, such as ordering an adjournment

The Director may participate in the hearing by filing written submissions and/or attending the hearing. If the Director intends to appear at the hearing, the SBT and the appellant must be advised in writing as soon as possible after receiving the Notice of Hearing and no later than 7 calendar days before the hearing. In most cases notice would have already been given in the Form 3 but if the Form 3 had indicated that the Director will be relying on the written submissions alone, then notice of the change in position needs to be provided.

Onus of proof

The onus of proof at the hearing is on the appellant to satisfy the SBT that the decision of the Director under appeal is wrong. If the Appellant does not discharge that onus then the appeal must be dismissed.

Parties to the appeal

The Director, the applicant/recipient who requested the hearing and other persons as the SBT may specify (for example the recipient’s spouse in overpayment appeals if the spouse was given notice of the overpayment that was incurred while they were receiving income support as a couple), are parties to the proceedings before the SBT.

The Director can be represented by a CPO and/or legal counsel from LSB and applicants/recipients who commence appeals can represent themselves, retain a legal representative (lawyer or paralegal), or have a non-paid friend or relative act as their legal representative .

Language interpreters

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

If a person wishes to bring his or her own interpreter to a hearing, for example, if they speak a particular dialect and the interpreters hired by the Tribunal do not speak that dialect, they may do so.

The role of the interpreter is to impartially convey the meaning of everything which is said without omission.

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

Scheduling a hearing date

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

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

Documentary evidence

If the appellant intends to introduce written or documentary evidence at a hearing, the materials should be provided to all other parties and to the SBT at least 20 calendar days before the hearing.

If the Director wishes to file supplementary submissions in reply to the appellant’s written submissions/evidence then they must be served and filed at least 10 calendar days before the hearing.

Appeal of a disability decision

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

If the DAU confirms on internal review that the applicant/recipient is not a person with a disability, then the applicant/recipient can appeal the denial decision to the SBT within 30 calendar days of receiving the internal review decision.

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

Filing new medical information in a disability appeal

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

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

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

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

SBT decisions

The SBT is required to deliver a written decision to the parties within 60 days after it last receives evidence or submissions on the appeal.

In its decision, the SBT may:

  • deny the appeal
  • grant the appeal
  • grant the appeal in part; or
  • refer the matter back to the Director for reconsideration in accordance with any directions the SBT considers proper

The Director must implement the decision of the SBT immediately, even if the Director plans to challenge it by way of a reconsideration application or court appeal.

The SBT’s decision remains in effect pending the outcome of a reconsideration hearing or a court proceeding.

Request for reconsideration and variation of SBT decision

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

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

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

The other party to the appeal may oppose the request for a reconsideration within 15 calendar days of receiving the copy of the request, indicating reasons why a reconsideration hearing should not be held.

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

The Director may consider requesting a reconsideration hearing on many grounds such as whether the Tribunal acted outside its jurisdiction, violated the rules of procedural fairness, made an error in law and did not have access to new evidence that would have had a material effect on the outcome of the hearing.

Such requests are to be made through the Legal Services Branch.

Reconsideration requests pertaining to a disability determination decision are to be made through the Social Assistance Program and Policy Branch.

Appeal to the Superior Court of Justice - Divisional Court

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

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

Related directives

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

https://tribunalsontario.ca/sbt/