2017 ONSC 5462, 2017 ONSC 5462

CITATION : Filipska et al v. Ministry of Community and Social Services, et al, 2017 ONSC 5462 DIVISIONAL COURT FILE NO.: 266/16 DATE: 20170919 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: Iryna filipska and Stepan Sobolev , Appellants AND: Ministry of community and social services, Ontario Works Program and Ontario disability support program, Respondents BEFORE: LEDERMAN, KITELEY and AKBARALI JJ.

COUNSEL: self-represented, Appellant Cheryl Ellison , for the Ministry of Community and Social Services and Ontario Disability Support Program, Respondents Jared Wehrle , for Ontario Works (City of Toronto), Respondent HEARD at Toronto: September 13, 2017 ENDORSEMENT Kiteley J. [ 1 ] This is an appeal pursuant to s. 31(1) of the Ontario Disability Support Program Act (“ODSPA”) from the decision of the Social Benefits Tribunal (“Tribunal”) dated February 4, 2016. For the reasons that follow, the appeal is dismissed. [ 2 ] On January 1, 2014 the appellant applied for ODSP income support.

By letter dated May 8, 2014, she was advised that she was found to be a “person with a disability”. That determination has not changed. [ 3 ] By letter dated July 8, 2014, the appellant was advised that she did not qualify financially for ODSP income support because her income was too high. The Director determined that she had been in receipt of long term disability insurance benefits in the amount of $2,372 per month effective December 7, 2013.

Since the appellant’s income exceeded her budgetary requirements as determined under the ODSPA , the Director found that she was not eligible for ODSP income support. [ 4 ] On July 22, 2014, the appellant requested an internal review of the Director’s decision and by letter dated July 29, 2014 the appellant was informed that the Director’s decision was upheld. [ 5 ] On December 11, 2014 the appellant appealed the Director’s decision to the Tribunal.

Pursuant to s. 23(10) the onus was on the recipient/appellant to satisfy the Tribunal that the decision was wrong. [ 6 ] In its decision dated February 4, 2016, the Tribunal held that the Director’s decision was correct. The Tribunal denied the appeal and affirmed the Director’s decision. [ 7 ] The appellant appeals from that decision to this court. Pursuant to s. 31(1) the burden is on the appellant to establish that the Tribunal made an error of law such as incorrect

interpretation of a statutory provision; application of the wrong legal test or principle; failure to apply a legal principle or incorrect application of a legal principle; ignoring relevant factors or relying on irrelevant factors; disregarding, misapprehending or failing to appreciate relevant evidence; or making a finding of fact on no evidence. [1] The standard of review is reasonableness. [2] [ 8 ] The issue in this appeal is whether the appellant has established that the Tribunal erred in law in finding that the appellant was not eligible for ODSP income support because her income from her long term disability insurance benefits precluded her eligibility.

The Tribunal made a decision of mixed fact and law: after finding that she was in receipt of long term disability insurance benefits, the Tribunal applied the eligibility criteria in s. 5(1) of the ODSPA and decided that the appellant was not financially eligible for income support. [ 9 ] A decision of mixed fact and law is not a question of law and accordingly the appeal must be dismissed.

Furthermore, the Tribunal considered all of the evidence, including the Appellant’s testimony, and came to a reasonable conclusion, in accordance with the legislation, that the Appellant was ineligible for ODSP income support because her income from long term disability insurance benefits made her ineligible. [ 10 ] In her exhibit book, factum and her oral submissions, the appellant raises various other issues such as the grievance she filed through her workplace union, the difficulties in workplace relationships, the challenges she experienced in performing the job

requirements in the night shift position, the different

definitions of “disability” under EI and ODSP, the benefits that she says ought to be available to her through Ontario Works and ODSP and whether she is eligible for benefits in addition to income support, [3] the challenges she has experienced in navigating Ontario Works and ODSP, the need to rationalize private long term disability and ODSP, how notices are served under the Ontario Works Act and regulations, her claim for compensation for pain and suffering, and her continued dispute of the dismissal in this court of her motion to extend time to bring an appeal from a decision that she had been overpaid.

None of those issues is within the jurisdiction of this court. ORDER TO GO AS FOLLOWS: [ 11 ] The appeal is dismissed as it relates to the decision of the Tribunal dated February 4, 2016 and as it relates to all other issues raised by the appellant. [ 12 ] There is no order as to costs of the appeal. _______________________________ KITELEY J. I agree _______________________________ LEDERMAN J. I agree _______________________________ AKBARALI J. Date: September 19, 2017