Talk:Social Benefits Overpayment

Surdivall v ODSP, 2014 ONCA (Discussion)

This case law has been followed over 1,600 times. The two issues before the court are:

1. Whether the Director ahs the authority to forgo recovery of all or part of an overpayment; and 2. Whether the SBT, on appeal from a Director’s decision, has the authority to restrict the Director’s recovery of an overpayment and order that either part of all of an overpayment not be recovered.

Decision: Section 14(4) of the Ontario Disability Support Program Act, 1997, S.O. 1997, c. 25, Sch. B (“ODSPA”) provides that an overpayment may be recovered by one or more of three specified means.

The Director’s discretion is not limited to choosing the method of recovering overpayment but also includes the discretion to forgo recovery of all or part of the overpayment.

The Social Benefits Tribunal has authority to restrict the Director’s recovery of an overpayment and order that part or all of an overpayment be recovered. More generally, where a statute provides an appeal from a discretionary decision, the appellate tribunal should be able to exercises that discretion unless the statute specifically precludes it form doing so.

Relevant Facts: In Surdivall, the benefits recipient received an amount of income support in excess of the amount to which he was entitled, and he was properly assessed with an overpayment.

The Director ordered recovery of the full amount of the overpayment (about $3,500). s. 15(1) allows Director to reduce monthly benefits. The regulation states this cannot exceed 10% of a recipient’s budgetary needs without their consent. s. 16(1) allows Director to give the recipient written notice of overpayment which is enforceable as an order of the Superior Court of Justice. s. 17 allows Director to recover an overpayment as a debt due to the Crown in a court of competent jurisdiction.

This is consistent with the 4 main objectives of the ODSPA: a) Provide income support and employment supports to eligible persons with disabilities; b) Recognize that government, communities, families and individuals share responsibility for providing such supports; c) Serves persons with disabilities who need assistance; and d) Is accountable to the taxpayers of Ontario.

As stated in 2401-00011 (Re), 2024 ONSBT 3390 (CanLII), the elements that might warrant forgiveness of the overpayment include: a) Administrative error b) Infrequent communication c) Delay in processing information

2312-08370 (Re), 2024 ONSBT 3380 (CanLII):

Administrative error and lack of follow up lead to 50% reduction in overpayment recovery.

2310-06590 (Re), 2024 ONSBT 3230 (CanLII):

Factors the tribunal considers factors such as: a) Reasons for the overpayment including the extent to which the actions of the Appellent contributed to that state of affairs b) Whether the Appellent’s actions were intentional or innocent c) Whether an administrative error on behalf of the Director caused or contributed d) Whether the recovery of the overpayment would cause extreme hardship to the Appellent

• • In this case, the tribunal found it would be unfair to allow recovery of any of the overpayment February 2020 to July 2023 because the overpayment was caused by the Director’s negligence and the Appellents spent the money reasonably believing it was theirs to spend.