PART C – Decision under Appeal
The decision under appeal is the decision of the Ministry of Social Development and Social
Innovation (“the ministry”) dated 08 April 2016 that determined that, as the 20 business day time limit
to file a Request for Reconsideration had expired, under section 71 of the Employment and
Assistance for Persons with Disabilities Regulation, there is no legislative authority for the ministry to
reconsider the original decision.
PART D – Relevant Legislation
Employment and Assistance for Persons with Disabilities Act (EAPWDA), section 16.
Employment and Assistance for Persons with Disabilities Regulation (EAR), section 71.
PART E – Summary of Facts
With the consent of the appellant, a ministry supervisor attended the hearing as an observer.
The evidence relevant to this appeal before the ministry when it made its decision consisted of the
following:
1.
From the ministry section of the appellant’s Request for Reconsideration form regarding the
original decision:
29 May 2015: the appellant attended the local office and requested a crisis supplement.
05 June 2015: a ministry worker reviewed the request and determined that more
information was needed.
10 June 2015: the appellant attended the local office and provided further information.
10 June 2015: the appellant contacted the ministry call centre and explained his request
with a worker.
10 June 2015: another worker reviewed his request and determined that he did not
meet all the eligibility criteria. His request was denied.
The Request for Reconsideration form shows that the date the appellant (‘the requestor”) was
advised of the decision was 15 June 2015. The form shows that he must submit the completed
form by 14 July 2015.
2.
The appellant’s signed Request for Reconsideration is dated 31 March 2016. Attached to the
Request for Reconsideration is a letter dated 31 March 2016 giving reasons for his request. In
addressing the issue of timeliness in submitting his Request for Reconsideration, the appellant
writes:
“I moved into my unit on the 1st day of June 2015. An individual tampered with my mailbox
while breaking into it to steal the remnants contained within my mailbox… As such, all of
my mail has been taken and stored by the [housing support worker] at my supported living
residence…. Every couple of days, I was provided with my mail
From what has been explained to me by the [housing support worker] a temporary worker
within the employ of the [housing association] placed some of my mail in the office without
notifying other [housing support workers] about the mail in general or its whereabouts
specifically. The discovery of this mail occurred on the 14th day of March 2016. On this
day I was provided with this “Employment and Assistance Request for Reconsideration”…
Previously I had spoken with the [housing association’s] [housing support worker]
regarding rectifying my mailbox. When this did not occur I put in a work order with
maintenance for my mailbox to be fixed.”
He attaches an invoice from a locksmith and correspondence between the [housing
association] and himself to corroborate this explanation.
3.
From the ministry’s files, as set out in the Reconsideration Decision:
The appellant requested a Request for Reconsideration of the original decision on 15
June 2015.
The Request for Reconsideration package was mailed to the appellant on 17 June
2015.
A file review indicates that the appellant had frequent interactions with the ministry
during this time, both via phone and visits to the local office.
4.
In the reconsideration decision, the ministry accepted that the appellant “did not receive [his]
mail in a timely manner.”
The appellant’s Notice of Appeal is dated 02 May 2016. Attached to the Notice of appeal is a letter
from the appellant setting out his arguments regarding the decision under appeal and requesting
adjudication of the original decision (see Part F, Reasons for Panel Decision, below).
The hearing
At the hearing, the appellant referred to an email a copy of which he had sent to the tribunal too late
to be circulated to the panel and the ministry. The email was from him to the housing authority dated
in early March 2016 inquiring as to whether any of his mail had not been delivered to him.
The balance of the appellant's presentation went to argument respecting the issue under appeal (see
Part F, Reasons for Panel Decision, below).
The ministry stood by its position at reconsideration. The ministry representative provided data on the
number of times the appellant had been through the reconsideration and appeal process in recent
years.
The admissibility of new information
As the ministry has accepted that the appellant did not receive his mail in a timely manner, the panel
accepts his information regarding the March 2016 email to the housing authority as background to his
account of how some of his mail was missing until March 2016.
The appellant objected to the admissibility of the data provided by the ministry regarding the number
of times the appellant had been through the reconsideration and the appeal process. The panel finds
that these data are not in support of the information and records before the ministry at
reconsideration as none of these data are included in the Record of the Ministry Decision. Pursuant
to section 22(b) of the Employment and Assistance Act, the panel therefore does not admit this
information as evidence.
PART F – Reasons for Panel Decision
The issue under appeal is whether the ministry decision, which held that as the 20 business day time
limit to submit a Request for Reconsideration under section 79 of the EAR had expired and that
therefore there is no legislative authority for the ministry to reconsider the original decision, is
reasonably supported by the evidence or is a reasonable application of the legislation under the
circumstances of the appellant.
The applicable legislation is from the EAPWDA:
Reconsideration and appeal rights
16 (1) Subject to section 17, a person may request the minister to reconsider any of the following decisions made under
this Act:
(a) a decision that results in a refusal to provide disability assistance, hardship assistance or a supplement to or for
someone in the person's family unit;
(b) a decision that results in a discontinuance of disability assistance or a supplement provided to or for someone in the
person's family unit;
(c) a decision that results in a reduction of disability assistance or a supplement provided to or for someone in the
person's family unit;
(d) a decision in respect of the amount of a supplement provided to or for someone in the person's family unit if that
amount is less than the lesser of
(i) the maximum amount of the supplement under the regulations, and
(ii) the cost of the least expensive and appropriate manner of providing the supplement;
(e) a decision respecting the conditions of an employment plan under section 9 [employment plan].
(2) A request under subsection (1) must be made, and the decision reconsidered, within the time limits and in accordance
with any rules specified by regulation.
(3) Subject to a regulation under subsection (5) and to sections 9 (7) [employment plan], 17 and 18 (2) [overpayments], a
person who is dissatisfied with the outcome of a request for a reconsideration under subsection (1) (a) to (d) may appeal
the decision that is the outcome of the request to the tribunal.
(4) A right of appeal given under subsection (3) is subject to the time limits and other requirements set out in the
Employment and Assistance Act and the regulations under that Act.
(5) The Lieutenant Governor in Council may designate by regulation
(a) categories of supplements that are not appealable to the tribunal, and
(b) circumstances in which a decision to refuse to provide disability assistance, hardship assistance or a supplement is
not appealable to the tribunal.
And from the EAPWDR:
.How a request to reconsider a decision is made
71 (1) A person who wishes the minister to reconsider a decision referred to in section 16 (1) [reconsideration and appeal
rights] of the Act must deliver a request for reconsideration in the form specified by the minister to the ministry office
where the person is applying for or receiving assistance.
(2) A request under subsection (1) must be delivered within 20 business days after the date the person is notified of the
decision referred to in section 16 (1) of the Act and may be delivered by
(a) leaving it with an employee in the ministry office, or
(b) being received through the mail at that office.
Time limit for reconsidering decision
72 The minister must reconsider a decision referred to in section 16 (1) of the Act, and mail a written determination on the
reconsideration to the person who delivered the request under section 71 (1) [how a request to reconsider a decision is
made],
(a) within 10 business days after receiving the request, or
(b) if the minister considers it necessary in the circumstances and the person consents, within 20 business days after
receiving the request.
The positions of the parties
The position of the ministry, as set out in the reconsideration decision, is that the appellant was
originally notified of the decision that he was ineligible for the requested crisis supplement during a
visit to his local office on 15 June 2015. The request for reconsideration form was mailed to him on 17
June 2015. Although the appellant did not receive his mail in a timely manner, he did not follow up
with the ministry to inquire about this request for reconsideration until after nine months had passed.
A file review indicates that he is had frequent interactions with the ministry during this time, both via
phone and visits to his local office. As such, it is reasonable that he had opportunities to ask about
the delay and to participate in the reconsideration process when the original decision was made.
As the 20 business day time limit has long since lapsed and there is no evidence to establish that he
was unable to follow through with the reconsideration and appeal process at the time, the minister is
not able to reconsider his request.
At the hearing, the appellant provided copies of the Hudson decision (2009 BCSC 1461), drawing
attention to the court’s dictum that “any ambiguity in the interpretation of the Employment and
Assistance for Persons with Disabilities legislation must be resolved in favour of the applicant” as
argument that any uncertainty as to the when he received his mail should be decided in his favour.
The position of the appellant, as explained in his notice of appeal and at the hearing, focuses on the
meaning of “notified of the decision” as set out in section 71 (2) of the EAPWDR. He argues that the
only reasonable interpretation of this term is when the person seeking reconsideration is actually in
possession of the Request for Reconsideration form – he submits that this is the only reasonable
interpretation for the following reasons:
a)
Only when in possession of the Request for Reconsideration form, with the Ministry section
completed giving the reasons for the original decision and attaching the relevant legislation would
the requester be in an informed position to provide reasons for why the original decision should
be overturned; and
b)
There might be variations in the time it takes for the ministry to prepare the reconsideration
package (i.e. 48 hours according to ministry standards but perhaps longer for a complex case)
and in the time between when the ministry puts the package is in the mail and when it is
delivered; this means that there would be variations in the amount of time different requestors
have to complete the Request for Reconsideration package, and in any event the time for the
requestor to complete the form would be less than the 20 business days specified in the
legislation.
The appellant also argues that ministry’s position that he should have been expecting the
reconsideration package in the mail a few days after making his request for the package and
following up with the ministry when it did not arrive amounts to placing an unfair onus on him, not
reflected in the legislation.
The appellant submits that due to complications with his mailbox, he did not receive the request for
reconsideration package until 14 March 2016 and that he completed the form and submit it within 20
business days. On this basis he submits that the ministry decision not to conduct a reconsideration
of the original decision is unreasonable.
Panel decision
The panel views the Hudson citation as relating to the interpretation of the legislation and not, as the
appellant argues, to the weighing of evidence or the finding of fact. Setting aside statutory
interpretation issues, the panel notes that in the reconsideration decision the ministry accepted that
the appellant did not receive his mail in a timely fashion.
Under the EAPWDA and the Regulation, disability or hardship assistance and several different kinds
of one-time-only or monthly supplements are available to eligible persons. The legislation sets out the
relevant eligibility criteria for these benefits. These benefits are provided to applicants, through an
application based process, once the ministry decides that the eligibility criteria have been met. There
is an implied onus, not specified in the legislation, that it is the responsibility of potential applicants to
determine for themselves what benefits are available and what are the eligibility criteria for these
benefits. This information is readily available from the ministry’s website, from numerous brochures
published by the Ministry, by visiting the local office and speaking with a ministry worker or calling the
toll-free ministry call-centre. Further, a general principle of administrative law also applies: it is the
responsibility of an applicant for a public benefit to provide the information necessary to establish
eligibility.
While the legislation does not provide any timeframe for the ministry to make a decision in response
to an application for a benefit, it is expected that such decisions would be made in an expeditious
manner, taking into account the need to verify information, the complexity of the application and
general workload considerations.
It is only when a decision is made respecting a benefit that is refused, discontinued or reduced that
the legislation provides a timeframe: if a person is dissatisfied with such a decision, section 16 (1) of
the EAPWDA directs that a request for reconsideration “must be made, and the decision
reconsidered, within the time limits and in accordance with any rules specified by regulation.”
Section 71(2) of the EAPWDR requires that the completed request for reconsideration form must be
delivered within 20 business days after the date the person is notified of the decision.
From the Request for Reconsideration and the reconsideration decision, it is unclear as to whether
the appellant was notified of the original decision on 10 June or 15 June 2015, when he also
requested a reconsideration package. The latter date is the one shown on the request for
reconsideration as the date the appellant was informed of the decision and the panel will take that as
the “date of record.”
According to the appellant’s account, he did not receive the request for reconsideration package
mailed to him until 14 March 2016 and he completed and signed the form within the 20 business
days. This means that by the time he submitted the completed form to the ministry, the 14 July 2015
deadline had long since passed.
The panel considers the right of reconsideration conferred by the legislation to be akin to any other
benefit covered by the legislation – that is, there is an implied onus, not specified in the legislation,
that it is the responsibility of the requestor to be aware of the applicable rules. When the
reconsideration package did not appear in his mail within a few days of making the request for the
package, it was his responsibility, if he still wanted to pursue the reconsideration, to contact the
ministry and enquire as to its whereabouts and if necessary attend the local office to obtain another
copy. There is no evidence to show that he did so.
The appellant argues that the phrase “the date the person is notified of the decision” in section 71(2)
is ambiguous, or at least means that when he was in possession on the Request for Reconsideration
form mailed by the ministry rather than when he was merely informed orally by a ministry worker. The
panel is guided by the Supreme Court of Canada in Bell Express Vu (2002 SCC 42):
"What, then, in law is an ambiguity? To answer, an ambiguity must be real. The words of the
provision must be reasonably capable of more than one meaning. By necessity, however, one
must consider the entire context of a provision before one can determine if it is reasonably
capable of multiple interpretations…”
Considering the context of the phrase, it is clear from section 16 of the EAPWDA that the purpose of
the reconsideration provisions is to establish an expeditious process that requires that a request for
reconsideration must be made, and the decision reconsidered, within the time limits and in
accordance with any rules specified by regulation. The appellant’s interpretation would be
inconsistent with that expeditious purpose, with the prospect of delays in addressing reconsideration
requests long past when the original decision was made and the circumstances surrounding the
original request no longer current.
For the reasons given above, the panel finds that the ministry’s decision that the ministry is unable to
reconsider the original decision is a reasonable application of the legislation in the circumstances of
the appellant. The panel therefore confirms the ministry’s decision.
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