August 27, 2014
Case Management of Overpayment Appeals Pending the Supreme Court of Canada’s decision in Surdivall

An application for leave to appeal the Court of Appeal decision in Surdivall v. Director (Ontario Disability Support Program), 2014 ONCA 240 to the Supreme Court of Canada is currently pending.  The SBT requested and received submissions from its key stakeholders regarding case management of overpayment appeals pending the SCC’s decision on the leave application.

After considering these submissions the Tribunal has determined that it will proceed with a nuanced case management approach that balances the interests of all parties and the SBT. In this way the Tribunal can avoid creating a process that may inadvertently result in lengthy and unnecessary delays, continue to offer parties the opportunity to narrow and potentially resolve issues and, where resolution is not possible, ensure that disputes are resolved with the minimum delay.

The Tribunal will continue to schedule and hear appeals of:

  • decisions regarding benefit entitlement (for example decisions to suspend or cancel income support or income assistance), and
  • overpayment decisions to determine whether the overpayment was correctly assessed

Except in exceptional circumstances the Tribunal will not hear submissions or make decisions on the recovery of a validly assessed overpayment and the parties need not provide submissions on that issue until requested to do so.

Following the hearing the SBT will issue a decision and, if it finds the overpayment was correctly assessed, will order the hearing bifurcated to address the issue of recovery once Surdivall is decided.

Except in exceptional circumstances, where recovery of an overpayment is the only issue for the hearing, no hearing will be scheduled until a decision in Surdivall is reached.

The procedure to not schedule and hear issues related to recovery of an overpayment until the law is settled is made recognizing the Directors of the Ontario Disability Support Program and Ontario Works Branch offer to not recover an overpayment while the appeal is being held pending a decision in Surdivall and in circumstances where they have received a written request from the Appellant to defer recovery.

Please see the Associate Chair’s full Case Management Ruling for further details.