PART C – Decision under Appeal
The decision under appeal is the decision of the Ministry of Social Development and Social
Innovation (“the ministry”) dated 12 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 that found that the appellant must re-apply for the monthly nutritional
supplement (MNS) to determined his eligibility – there is no legislative authority to reinstate a
supplement.
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
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:
01 August 2015: after a period of ineligibility, the appellant became eligible for disability
assistance and eligible to apply for a MNS.
04 September 2015: the appellant had not submitted an MNS application. He requested a
reconsideration stating that he had previously had a MNS and should not have to reapply.
17 September 2015: the appellant contacted the Ministry stating that he would submit an
email from a lawyer confirming that he did not need to re-apply for the MNS; a Request for
Reconsideration was put “on hold” pending his submission.
05 November 2015: the ministry received the above-mentioned emails.
The Request for Reconsideration form shows that the date the appellant (‘the requestor”) was
advised of the decision was 10 November 2015. The form shows that he must submit the
completed form by 08 December 2015.
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.
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 panel accepts the appellant’s 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.
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 it has concluded that
the appellant failed to deliver a completed Employment and Assistance Request for Reconsideration
to the ministry within the time limit mandated by the EAPWDR. The ministry cannot make available to
the appellant a reconsideration of this matter, and no reconsideration has been conducted.
At the hearing, the appellant referred to 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 “the date the person is 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 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 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.
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.
When a decision is made respecting a benefit that is refused, discontinued or reduced, the legislation
provides a timeframe: section 16 (1) of the EAPWDA directs that a request for reconsideration of the
decision “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.
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 ExpressVu (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 application no longer current. The panel finds no ambiguity in the phrase and accordingly
does not accept the appellant’s interpretation.
From the Record, it is clear that the appellant was informed of the original decision as early as 04
September 2015, but the ministry, for reasons not explained in the Record, did not immediately
prepare a request for reconsideration package. On 17 September, the appellant requested that the
matter be deferred, pending legal advice. Accordingly, the ministry put the preparation of the
appellant's request for the reconsideration package “on hold.” When the appellant had accumulated a
set of emails from a lawyer, he attached them to a letter dated 05 November 2015 to the ministry
formally requesting the reconsideration package. On 10 November the ministry mailed the package
to the appellant. This date is the one shown on the Request for Reconsideration as the date the
appellant was informed of the decision. In consideration of the these circumstances, the panel will
take this later date as the “date of record” for the beginning of the 20 business day time limit for
requesting a reconsideration.
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 08 December
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 the appellant’s 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 and some 4 months passed before
he attended to the matter.
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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