Not all Ontario Disability Support Program (ODSP) appeals before the Social Benefits Tribunals are successful. (If they were, there wouldn’t have been a tribunal to hear them in the first place.)
What can you do if your ODSP appeal is denied?
There are two routes – you can either make an application for reconsideration before the Social Benefits Tribunal or appeal the decision to the Divisional Court.
Application for Reconsideration
Application for reconsideration may be filed by the Director of the ODSP or the appellant. The application must be filed within 30 days of the receipt of the decision. If the Social Benefits Tribunal grants the application for reconsideration, a new hearing will be conducted.
In considering whether to grant an application for reconsideration, the Tribunal takes into account such factors as whether the Tribunal:#
- acted outside its jurisdiction
- violated the rules of natural justice or procedural fairness
- made a serious error in law
- did not have access to new evidence that would have had material effect on the decision.
or whether there is any other substantial ground for reconsideration relevant to the decision.
Appeal to the Divisional Court
Appealing the decision to the Divisional Court is rarer than making an application for reconsideration before the Social Benefits Tribunal for two reasons:
- By statute, appeals to the Divisional Court are limited to a question of law.* Therefore, cases involving the finding of credibility of witnesses cannot be appealed this way.
- Further, most ODSP cases are funded by Legal Aid Ontario. If the chance of success is minimal before the court, the LAO will be reluctant to grant authorization (unless there is a good reason to do so) given the expense involved in the Divisional Court.
Finally, no appeal to the Divisional Court may be filed if a reconsideration has been requested until the application has been refused or withdrawn, or until the reconsideration hearing has taken place and the Tribunal has delivered its decisions.
PSWLaw is your relentless advocate for ODSP appeals.
# Practice Guideline 2, Social Benefits Tribunal
*Ontario Disability Support Program Act, S.O. 1997, c. 25, sch. B.
Please Note: This article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The legislation and/or regulation may have been amended or repealed since the publication of the article.
