KARL ANTHONY WILSON , Applicant, v. DEPARTMENT OF SOCIAL DEVELOPMENT, 2023 NBKB 134

Karl Anthony Wilson v. Department of Social Development , 2023 NBKB 134 IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON MM-240-2022 BETWEEN: KARL ANTHONY WILSON , Applicant, -and- DEPARTMENT OF SOCIAL DEVELOPMENT , Respondent. DECISION Before: Justice Jean-Paul Ouellette Date of Hearing: July 4, 2023 Date of Decision: July 4, 2023 At: Moncton, New Brunswick Appearances: Karl Anthony Wilson , for himself; and Sarah Fitzpatrick , Esqs., for the Respondent OUELLETTE, J.

INTRODUCTION [1] This is a judicial review of a decision rendered on October 12, 2022, by the Family Income Security Appeal Board (the“Appeal Board”). [2] At issue is what can be considered as income or available resources for an applicant or client who receives assistance fromthe Minister of Social Development under the Family Income Security Act. [3] Karl Anthony Wilson (“Mr.

Wilson”) submits that as he deposits the monthly benefits received for his child under theCanada Pension Plan - Orphans Benefit (“CPP“) into an Educational Trust fund, those funds should be excluded from the amountconsidered as income or available resources under the Transitional Assistance Program (the “Program”). [4] The Department of Social Development (the “Department”) argued otherwise, and the Area Reviewer’s Office of theDepartment rendered its decision on September 7, 2022, to the effect that this income was subject to consideration and was thereforeconsidered income under the Program and the Appeal Board later confirmed that decision. [5] For the reasons that follow, this Application is dismissed.

FACTUAL BACKGROUND [6] Mr. Wilson is a recipient of financial assistance under the Family Income Security Act from a program referred to as theTransitional Assistance Program. [7] The Program provides assistance to a unit and is based on the income received by the unit and reported to the Department bythe head of the unit, in this case, Mr. Wilson. [8] In August 2022 the Department was provided with financial information indicating that Mr.

Wilson had failed to report theincome generated by the CPP – Orphans Benefit in the amount of $264.53 monthly which began in July 2019 as a result of his child’smother having passed away. [9] The Department therefore updated the financial assistance file for Mr. Wilson to reflect the additional CPP income. [10] As a result of this updated information, and in compliance with the Department’s policy on income other than wages, theincrease of available income for Mr.

Wilson resulted in a reduced entitlement to the monthly amount received under the Program forfinancial assistance. [11] In August 2022, the Department informed Mr. Wilson that his monthly financial assistance would be reduced by the amountof the CPP income. [12] Mr. Wilson filed a “Request for Review” with the Department to have the reduction decision reviewed. [13] The person responsible for this area, known as the Reviewing Officer, reviewed the Department’s decision and concluded thatthe CPP income for the child had to be included as part of Mr.

Wilson’s income/available resources and his monthly assistance amountreceived from the Program had to be reduced. [14] Mr. Wilson then appealed that decision to the Family Income Security Appeal Board who rendered a decision on October 12,2022, confirming the Reviewing Officer’s decision. [15] Mr. Wilson has argued all along that, as he was setting aside the CPP income in an educational trust fund for the child, itshould be excluded as eligible income under the Program. [16] For the purposes of this judicial review, Mr.

Wilson submits that the Reviewing Officer’s decision and the Appeal Board’sdecision are both unreasonable and should be set aside. ANALYSIS AND CONCLUSION [17] The standard of review for a judicial review, as set by the Supreme Court of Canada in Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65 , [2019] 4 SCR 653, is reasonableness. [18] The sole question for this Court, therefore, is whether the Appeal Board’s decision was reasonable. [19] At bar, the Appeal Board simply confirmed the Reviewing Officer’s decision as there was no appeal hearing held. I didquestion Mr.

Wilson on what evidence he would have submitted had he been able to attend the appeal board hearing. As the decision ofthe Appeal Board is a confirmation of the Reviewing Officer’s decision who had provided all the evidence to the Appeal Board and noadditional information would have been provided by Mr. Wilson, my consideration in this review would have been the same had theAppeal Board repeated her findings. [20] There was no need to return this matter to the Appeal Board and this Court proceeded with this judicial review after takinginto consideration Mr.

Wilson’s comments. [21] The Department’s decision, later confirmed by both the Reviewing Officer and the Appeal Board, was made purely off thelegislation. [22] Section 3(2)(

a) of the Family Income Security Act says that the Department “shall give assistance to a person in need inaccordance with this Act and the regulations”. A ‘person of need’ is defined as someone who, for the time being, is unable to provide for

themselves and their dependents. [ 23 ] “Case Reviews” on active cases are done every twelve (12) months to confirm a unit’s continued eligibility for assistance under the Program. [ 24 ] As such, the Department had the legislated authority and responsibility to review the Applicant’s continued eligibility under the assistance Program as it did in August of 2022 when the Department learned of the CPP income Mr. Wilson was receiving on behalf of his child. [ 25 ] When Mr. Wilson requested a review of the Department’s reduction decision, it was undertaken by the area’s Reviewing Officer.

The Reviewing Officer explained to Mr. Wilson that, in accordance with the legislation and regulations, the CPP income had to be deducted from the amount of monthly assistance he received as specified in the Department’s policies. [ 26 ] It appears that Mr. Wilson had argued, and continues to argue, that because he deposits the CPP income into a RESP for his child, that income should be exempt. However, this does not make the income exempt under the Program. [ 27 ] The Department had no choice but to determine that the CPP income was deductible from the Applicant’s monthly financial assistance. [ 28 ] While Mr.

Wilson is entitled to monthly assistance under the legislation, all parts of the legislation must be applied properly. His entitlement must be reduced by the ‘available resources’ that do not qualify for an exemption under the Program. [ 29 ] Persons who have resources above the maximum assistance amount the Department provides are not eligible for assistance. [ 30 ] It is not difficult to see why this has to be the case; the Department cannot provide assistance to all New Brunswickers.

There must be rules and limits in place. [ 31 ] Based on the cited legislation, regulations, and policies, the Department had no choice but to conclude that the CPP income had to be deducted from the Applicant’s monthly financial assistance. [ 32 ] For the Department to have determined otherwise would have been contrary to the legislation and would violate its responsibility to administer that legislation properly and consistently.

The Department’s decision was confirmed by both the Reviewing Officer and the Appeal Board. [ 33 ] The Court is of the opinion that this decision does not require intervention by the Court to protect the process; the Appeal Board and the Reviewing Officer reasonably applied the legislation in determining that the CPP income qualified as income and had to be deducted from the Applicant’s monthly financial assistance. [ 34 ] In fact, Mr.

Wilson agreed that if the CPP income should be exempt, that is the situation that would warrant this Court to intervene, as the legislation would clearly not have been applied fairly or in a way that upholds its legality. [ 35 ] At paragraph 126 of Vavilov , the Court said: [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , at para. 47.

The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam , at para. 56. [ 36 ] If we turn to the evidentiary record that was before the Appeal Board, and the Reviewing Officer, the facts show that the Department learned that the Applicant was receiving CPP income. Based on that fact, the Department turned to the relevant legislation to determine its response.

The legislation directed that the Department must deduct the CPP income from the Applicant’s monthly assistance. [ 37 ] The Department’s decision, and that of the Appeal Board to uphold same was reasonable.

The relevant facts/evidence were taken into account and a decision based on those facts was rendered. [ 38 ] The decision was transparent and explained the evidence that was relied upon to come to the conclusion (i.e., mainly the legislation) and there is no basis for this Court to quash the Appeal Board’s decision in the within case. [ 39 ] While the Appeal Board’s decision in this case is short and was largely based on the fact that the Applicant failed to appear at the hearing, it states that the Department ‘acted within the guidelines’ of the Act and the Regulations. [ 40 ] Mr.

Wilson this morning agreed that the income received from the CPP - Orphans Benefit was not coming from a trust account and while he could put the money into an education trust account for the child, it did not change its applicability to the relevant

section of the Family Income Security Act . [ 41 ] As such, the Appeal Board’s decision was reasonable and there is no basis for this Court to intervene and the request to quash the decision is dismissed. COSTS [ 42 ] The Department in their brief is requesting costs. Mr. Wilson, when a party files an application that is dismissed, the other party is entitled to costs. Costs in the amount of $500 is therefore granted against Mr. Wilson to be paid forthwith. DATED this 4 th day of July 2023 and signed on the 19 th day of July 2023.

______________________________________ Jean-Paul Ouellette Justice of the Court of King’s Bench of New Brunswick, Trial Division