Social assistance recipients have a statutory right to appeal certain decisions about their benefits to the Social Benefits Tribunal. However, there are some decisions that they cannot appeal. For example, decisions about access to “discretionary benefits” to cover dental, medical, and other expenses cannot be appealed, nor can decisions that refuse an extension of time for reconsideration of an OW or ODSP decision. These are important decisions that can affect access to social assistance, medical care, and quality of life. However, social assistance recipients’ only option in these situations is to bring an application for judicial review at the Ontario Divisional Court. Therefore, judicial review applications should remain reasonably accessible.
On June 7, 2022, the Ontario Court of Appeal released its decision in Yatar v. TD Insurance Meloche Monnex, 2022 ONCA 446. This decision concerned an appeal of a Divisional Court decision that stated that where a person has some statutory appeal rights, courts will hear their judicial review application only in exceptional circumstances, if at all. This statement created a new and higher bar to challenge decisions that cannot be appealed. It potentially made applications for judicial review more difficult for social assistance recipients to pursue. ISAC intervened before the Ontario Court of Appeal to highlight this risk and the negative impact on social assistance recipients if they cannot access judicial reviews.
ISAC welcomes the Ontario Court of Appeal’s decision. The Court removed the new restriction on judicial reviews of exceptional circumstances, if at all. The Court also clarified that the Divisional Court’s new restriction was “unfortunate and unnecessary” and gave “rise to confusion regarding access to judicial review as a remedy in cases where there is a statutory appeal.” The Court confirmed that “judicial review is a discretionary remedy.”
The Court of Appeal also set out a new test for when courts should hear judicial review applications from parties who have statutory appeal rights. In our view, under the new test, social assistance recipients who have been refused discretionary benefits or extensions of time for reconsideration will likely have their judicial review application heard. However, how courts will apply the new test remains to be seen.
Finally, ISAC agrees with the Court’s recommendation that the Divisional Court should issue a Practice Direction on the process for filing a statutory appeal and a judicial review at the same time. If implemented, this may be helpful for social assistance recipients and low-income tenants in Ontario or those who represent them.
Read our legal arguments here.
Read the Court of Appeal’s decision here.