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Thursday, December 08, 2016 @ 7:00 PM  


Appeal by the Ontario Disability Support Program (ODSP) recipient from the decision of the Social Benefits Tribunal (Tribunal) dismissing the appellant’s appeal from the Director’s decision to provide him with a mileage rate of only 18 cents per kilometre for medically necessary travel. The Director’s statutory obligation to compensate recipients for travel to medically necessary treatments arose from s. 44(1)1(iii.1) of O. Reg. 222/98 (the “Regulation”), which did not define “cost of transportation” or provide a rate. The ODSP directive provided the benefit should be paid for the most economical mode of transportation the person was able to use, and the 18-cent mileage rate for transportation by private vehicle was established by policy in 2000. The appellant had complex health issues and was required to travel frequently from his home in Oshawa to Toronto for specialized treatment. There was no dispute the appellant’s medical treatments were necessary and travel by private vehicle was the most economical form of transportation his condition permitted. The appellant asserted his actual costs were 45 cents per kilometre, which included operating and ownership costs, and fell within the range identified by the Canadian Automobile Association (CAA). The Tribunal noted there had been conflicting decisions on whether the benefit should cover operating costs, but concluded that had the legislature intended it, the wording of the legislation would have been different and more specific. The Tribunal was of the view that to include in the benefit an amount covering ownership costs would assist the appellant in the ownership of his vehicle, as opposed to just transportation to and from his appointments, which would in effect entitle the appellant to a benefit above what recipients without vehicles received. It also found that the appellant had not shown that 18 cents per kilometre was insufficient to cover his operating costs of transportation and held that this was a reasonable amount to cover the costs of transportation.

HELD: Appeal allowed. The interpretation of legislation was a question of law, therefore the Court had jurisdiction to hear the appeal. The Ontario Disability Support Program Act was remedial, social benefits legislation which had to be interpreted in the context of its intent. The Tribunal appropriately started by considering the plain meaning of s. 44(1)1(iii.1) of the Regulation. There was nothing in the wording of the Regulation, however, which suggested the costs of transportation should be limited so as to exclude ownership costs. Further, the dictionary definition of “transportation” did not provide a rational basis for limiting transportation costs to operating costs. The Tribunal gave no rational basis for deciding direct costs should be limited to gas and maintenance. The appellant could not drive his vehicle without incurring ownership costs, such as license fees, insurance and registration. The limitation to operating costs had not been imposed in other contexts, such as the CAA and WSIB. The meaning attributed by the Tribunal to the Regulation was also inconsistent with the Director’s own policy and practice. The Directive committed to covering actual costs of the vehicle and, when the 18-cent rate was established in 2000, this included an amount for ownership costs. It was reasonable for a benefit to have limitations, but it was not reasonable to read in limitations not supported by legislation. The Tribunal was correct that the delivery of income support benefits had to be balanced with the responsibility to taxpayers, but did not explain how this reasonably resulted in concluding ownership costs should be excluded. Even when ownership costs were factored in, travel by vehicle was still the most economical form of transportation for the appellant, and if he did not use his vehicle and took a taxi or agency, the taxpayer would be required to pay much more. The matter was remitted back to the Tribunal for redetermination of reasonable costs of transportation, having regard to the fact the Regulation did not exclude consideration of both operating and ownership costs.