Intervening in Surdivall v Director of the Ontario Disability Support Program

METRAC and ARCH Disability Law Centre are “Intervenors” in Surdivall v Director of the Ontario Disability Support Program (ODSP), a case that went to the Court of Appeal for Ontario on September 17, 2013. The Intervenors are being represented in court by a lawyer at Parkdale Community Legal Services in Toronto.

What are Intervenors?
They are people or groups that a court allows to add to the arguments of the parties in a case and explain the possible impact of its decision. In this case, the Intervenors are presenting how the judgment might affect the groups they have knowledge about.

What led to the case?
The Appellant, Mr. Surdivall, received an overpayment of benefits under ODSP for several months when he was moving residences and paying rent for two apartments during that time. The Director determined that he had to repay the overpayment. The Appellant appealed to the Social Benefits Tribunal, which said the Director of the ODSP should recognize that there was a legitimate argument that he should not have an overpayment because he was using his shelter allowance to pay for the residence where he was actually residing. The Tribunal also noted the financial hardship that repayment would cause. It ordered that the repayment be reduced by half and collected over time. The Director appealed that decision to the Divisional Court of Ontario. The Court said that neither the Director nor the Social Benefits Tribunal has discretion to forgive overpayments and overturned the Tribunal’s decision. The Appellant then appealed to the Court of Appeal for Ontario.

What’s the question in this case?
Does the ODSP Director and/or the Social Benefits Tribunal have discretion under the Ontario Disability Support Program Act (ODSPA) to forgive or not collect all or part of an overpayment of benefits?

What’s the position of the Intervenors?
We believe the ODSPA must be interpreted in such a way that allows the ODSP Director and Social Benefits Tribunal discretion to not collect all or part of an overpayment. We believe the Court must adopt an interpretation of the ODSPA that is consistent with values under the Ontario Human Rights Code and Canadian Charter of Rights and Freedoms. We believe that exercising no discretion in these cases can lead to discrimination against women survivors of domestic violence and people with cognitive or mental health disabilities.

How might women who are survivors of domestic violence be affected?
Social assistance overpayments under the ODSPA are fairly common for many reasons. Sometimes overpayments happen in the context of domestic violence, including financial control, abuse and fraud. In these conditions, we are concerned that disabled women who receive these benefits may not know an overpayment is being made, may not have control over their finances, or may risk further abuse from a partner if she reports. Sometimes the overpayment may result from fraud committed by an abusive spouse. As well, the financial hardship a woman may face from making a repayment could force her to stay in an abusive relationship. Examples of these types of hardships have already been brought to the Social Benefits Tribunal.