2014 MBCA 72, 2014 MBCA 72

Citation: Relke v. Director, Eastman Region, 2014 MBCA 72 Date: 20140722 Dockets: AI 14-30-08176; AI 14-30-08177 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) K. Relke KEVIN RELKE ) on his own behalf ) (Appellant) Applicant ) A. J. Ladyka ) for the Respondent - and - ) ) ) Chambers motions heard: DIRECTOR, EASTMAN REGION ) June 26, 2014 ) (Respondent) Respondent ) Decision pronounced: ) July 22, 2014 MARC M. MONNIN J.A. [ 1 ] The applicant, Mr. Relke, seeks leave to appeal under s. 23 of The Social Services Appeal Board Act , C.C.S.M., c.

S167 (the Act ), from two orders of the Social Services Appeal Board (the Board) whereby the Board confirmed decisions of the respondent Director. The first denied the applicant funds to start a business and the second cancelled his benefits for failure to provide income information. [ 2 ] A brief description of the factual background before the Board would be helpful to understand the issues on these applications for leave to appeal.

Factual Background [ 3 ] The applicant had been receiving monthly payments from Employment and Income Assistance (the Program) for a number of years when, on July 16, 2013, he wrote an email to advise that he had restarted his courier business in an effort to get back to work. He requested funds to cover various start-up costs such as car repairs, an insurance upgrade and gas.

As well, he requested the proper forms to claim his self-employment income. [ 4 ] He was advised shortly thereafter that his request for assistance for self-employment was not being approved as he had not followed the steps necessary to have the Program assess the feasibility of the self-employment proposal, including the submission of a business plan.

He was told that if he chose to operate his business notwithstanding, his file would be closed. [ 5 ] On August 16, 2013, the applicant filed a notice of appeal with the Board challenging the decision not to provide him with the requested funds and with respect to “a threat to close my file.” The applicant also requested that the Board instruct the respondent, or his officials, that they could not refuse to pay his September payment until a decision had been made on whether or not their refusal was defensible. [ 6 ] On August 20, 2013, the respondent sent the applicant a letter setting out the process that would be required in order to be considered for approval to be self-employed.

In it, the Assistant Regional Director states: In order to allow you time to connect with your Case Counselor and to develop your business plan, your September benefits will be released as per normal. ….

[ 7 ] It also included a form whereby the applicant was to provide his income records showing the date, amount and source of income as well as expense records. [ 8 ] By letter dated September 4, 2013, the Board advised the applicant that it had “no jurisdiction to instruct, order or otherwise make a decision regarding entitlement of income assistance benefit outside the hearing process” and, therefore, would not be advising the Director with respect to anything other than the decision it would make. [ 9 ] On September 3, 2013, the applicant provided an August 2013 income declaration statement to the respondent in which he declared income of $205, but provided no further information or supporting documentation with respect to that income.

By email later on the same day, the respondent requested this supporting documentation. On September 4, 2013, the applicant indicated he would not be providing any of the information. [ 10 ] The Program wrote to the applicant on October 9, 2013, to advise that his file had been closed effective September 1, 2013.

He did not receive his September payments. [ 11 ] On October 18, 2013, the applicant filed a second appeal to the Board appealing the cancellation of his employment income assistance benefits. [ 12 ] On March 26, 2014, the Board heard the two appeals. [ 13 ] With respect to the appeal relating to the denial of funds to start a business, the applicant raised before the Board that the letters of July 16th and August 20th were simply information notices and should not have been accepted as official notification of denial of benefits.

The applicant also raised before the Board that he had requested and received assistance from the Program in years prior for amounts to start his business, more particularly in 2002, 2003 and 2004, and, therefore, did not believe that he would have to complete all the business planning documents the Program had sent him. [ 14 ] The respondent, in response, set out the steps that were taken to advise the applicant of the requirements that were now associated with the self-employment option and that while the applicant may have received assistance in the past, the submission of the business plan was now mandatory.

The applicant had not complied with the respondent’s request. [ 15 ] The Board stated as follows with respect to the first notice of appeal: After carefully reviewing the written and verbal information presented at the hearing, the Board has determined that the Department has administered [the applicant’s] request for benefits to start his courier business appropriately. Although [the applicant] received assistance in the past to assist with starting up his courier business, there is no provision for the Department to continue to cover such expenses as insurance, gas and repairs each time.

Therefore, the Board has confirmed the decision of the Director and this issue has been dismissed. [ 16 ] As to cancellation of benefits from September 1, 2013, the applicant submitted to the Board that the Program has closed his file due to his lack of co-operation for failure to submit income declaration along with expenses and receipts pertaining to his self- employment. The applicant stated that he was not subject to work expectations and, therefore, should not be required to complete the business plan.

The Board reviewed the request made by the Program to have the applicant file material and determined that the Program had administered his file appropriately. As an income assistance participant, he was obligated to declare all sources of income regardless of category and that the information provided after his file was closed, did not provide sufficient evidence to verify his business income expenses. The Board, therefore, confirmed the decision of the Director and dismissed that appeal as well.

Decision on Leave [ 17 ] These leaves to appeal are governed by the requirements of s. 23(1) of the Act which provides as follows: Appeal to Court of Appeal 23(1) Any party to the appeal before the appeal board may appeal the board’s order to The Court of Appeal on any question involving the board’s jurisdiction or on a point of law, but only after obtaining leave to appeal from a judge of The Court of Appeal. [ 18 ] In order to obtain leave under that section, the applicant must satisfy certain criteria as set out in Klippenstein v. Director, Point Douglas , 2011 MBCA 15 :

a) the issue to be raised by the applicant must be truly one only of jurisdiction or of law and not one which involves the court in assessment or analysis of factual issues;

b) the case must be one that warrants the attention of this court; namely, that it must be of importance not just for the immediate case, but in determining other similar disputes which are apt to arise in the future; and

c) there must be an arguable case of substance, that is, one with a reasonable prospect of success. [ 19 ] To have a reasonable prospect of success, one must take into account the anticipated standard of review of the Board’s decision.

In this case, the standard of review will be one of reasonableness and, therefore, the applicant must show, in order to satisfy that criterion, that the decision of the Board amounts to an unreasonable error of law. [ 20 ] The applicant, in his written material as supplemented by his oral presentation to me, wishes to argue that the Board’s decisions are an error of law in that they failed to consider s. 9(2) of The Employment and Income Assistance Act , C.C.S.M., c. E98 (the EIAA ). That

section provides as follows: Notice to recipient or applicant 9(2) The director or a person acting under the authority of the director shall forthwith notify an applicant or recipient or a person who has applied for or is or was receiving income assistance or general assistance in writing of any decision or order which denies, discontinues, reduces or suspends income assistance or general assistance to the applicant, recipient or person, stating the reasons for the decision or order and advising the applicant, recipient or person, as the case may be, that he or she has the right under the Act to appeal the decision or order to the appeal board. [ 21 ] The applicant argues that the letters of July 16th and August 20th do not satisfy the requirements of that

section and that under s. 9(6) of the EIAA , the Program was obligated to provide the Board with evidence that the requirements of s. 9(2) had been met.

He says such a breach of s. 9(2) is an error of law which is worthy of attention by this court as it applies to all applicants who are denied benefits under the Act . [ 22 ] The purposes of a ss. 9(2) and 9(6) are to ensure that there be appropriate notice given to beneficiaries of the Program of the reasons for the denial of benefits and their right to appeal a denial. [ 23 ] The facts before the Board were that while there had been an email sent to the applicant in July advising that the attempt to commence self-employment would negatively affect his entitlement to further income payments, it was only when he refused to provide the necessary information to the department that his benefits were actually cancelled.

The letter of August 20, 2013, was written in that vein; namely, that the applicant could receive benefits if he abided by the request for further information. He had already filed a notice of appeal by that time and, therefore, was aware of his right to appeal.

The email sent in July and the letter of August 20th certainly provided the applicant with the information he needed to understand why his request for funding was being refused and the potential for cancellation of his benefit. [ 24 ] There was evidence before the Board whereby they could find that the applicant had been advised of the reasons for the denial and his right to appeal sufficient to satisfy the requirements of s. 9(2) . [ 25 ] As to the cancellation of his benefits as of September 1, 2013, the basis of his second appeal, the letter of October 9, 2013, sets out the reasons why they were terminated; namely, the failure to provide the department with the requested information.

The letter also advises him of his right to appeal that decision, thereby satisfying s. 9(2). [ 26 ] Counsel for the respondent noted that the issue of whether the letter of August 20th confirming that benefits would be paid for September was binding on the department, was only raised before me and not in the previous material of the applicant.

In any event, I am of the view that the letter of August 20, 2013, implies an understanding that the applicant will abide by the obligations he has to report income and to provide the necessary documentation. [ 27 ] Accordingly, I fail to see how the decisions of the Board raise any errors of law, much less errors which have an arguable chance of showing that the Board’s decisions are unreasonable. [ 28 ] For these reasons, I would deny the applicant leave to appeal both of these orders. The applications are dismissed. J.A.