This case was about whether or not the law allows the Director of ODSP and the Social Benefits Tribunal to waive collection of overpayments in particular circumstances.
For many years, people were able to appeal OW or ODSP overpayments to the Social Benefits Tribunal in situations where repaying the debt would not have been fair. These appeals were standard practice. Many people made appeals like this and were successful in having collection of either all or part of their overpayment waived.
In 2011, ODSP suddenly took a different position. After the Social Benefits Tribunal reduced the amount of an overpayment that Mr. Surdivall had to repay because of an innocent mistake he had made, ODSP appealed the decision. ODSP said that the law said that the Social Benefits Tribunal could not waive overpayments.
Working with us at ISAC, Mr. Surdivall challenged that position in court. We argued that since the law actually says that overpayments “may be recovered,” both ODSP and the Social Benefits Tribunal can decide not to collect an overpayment. We said that they should not collect all of Mr. Surdivall’s overpayment because it would be unfair; in his situation, he had made an innocent mistake, had not benefitted from the overpayment, and would suffer financial hardship if he had to pay it all back.
Mr. Surdivall’s situation is not unusual. Social assistance in Ontario is very complicated. It’s very common for overpayments to happen because of innocent errors like his. They can even happen when all the rules are being followed – the social assistance system is set up in a way that can make overpayments inevitable.
In 2011, the Divisional Court decided that ODSP and the Social Benefits Tribunal did not, in fact, have discretion to waive overpayments. We appealed that disappointing decision to the Ontario Court of Appeal.
In 2014 we won. The Court of Appeal agreed with us that the law actually gives the government leeway in how it recovers overpayments, including allowing them to waive collection of an overpayment if doing so makes sense in a person’s individual circumstances. The Court also confirmed the right of people on ODSP to appeal decisions about overpayment collection to the Social Benefits Tribunal.
ODSP appealed the decision to the Supreme Court of Canada, but in September 2014 the Supreme Court refused to hear their appeal.
The Court of Appeal’s decision also applies to overpayments received by people on OW.