BRYAN LEACHMAN Applicant - v. -, 2023 SKKB 130

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 130 Date: 2023 06 19 Docket: QBG-SA-00796-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: BRYAN LEACHMAN Applicant - and - MINISTRY OF SOCIAL SERVICES (Government of Saskatchewan) Respondent Counsel: Nicholas R. Blenkinsop for the applicant Noah S. Wernikowski and Alexa E. LaPlante for the respondent ___________________________________________________________________________ FIAT ROTHERY J.

June 19, 2023 ___________________________________________________________________________ [ 1 ] The applicant, Bryan Leachman [Leachman], applies for judicial review of the decision rendered by the Social Services Appeal Board [Board] dated July 14, 2022, seeking an order that the assessment of an overpayment of moneys in the amount of $5,964.00 pursuant to the Saskatchewan Assured Income for Disability Program [SAID] be quashed.

Leachman seeks an order substituting the Court’s own decision or remitting the matter back to the Board or the Ministry of Social Services, Income Assistance Programs, for reconsideration according to law. [ 2 ] This is the second application for judicial review from the same decision made by the Ministry of Social Services [Ministry]. The decision of the previous board made September 16, 2021, was before the Court in QBG-SA-01125-2021. By way of a draft consent order presented to Bardai J. by counsel for Leachman and the Ministry, the order dated March 11, 2022, was issued as follows: The Court orders: 1.

That the application for judicial review is granted, and the Decision of the Saskatchewan Social Services Appeal Board, dated September 16, 2021, is quashed; 2. That the matter is remitted to a newly constituted panel of the Social Services Appeal Board to be reheard in accordance with the law; 3. Specifically, the Social Services Appeal Board shall consider: (1) whether the Ministry of Social Services and the Regional Appeal Committee erred in their

interpretation of “earned income”;

(2) Whether the Ministry of Social Services and the Regional Appeal Committee erred in their

interpretation and calculation of “monthly income”; (3) whether the overpayment decision was made fairly; (4) whether the Social Services Appeal Board has jurisdiction to consider issues regarding federal paramountcy and discrimination; and (5) any other issue related to the overpayment decision as advanced by the parties and the Social Services Appeal Board permits. [ 3 ] The Board, in its written decision dated July 14, 2022, concluded that the Ministry and the Regional Appeal Committee [RAC] did not err in their

interpretation of the phrase “earned income” as defined in s. 2(g.1) of The Saskatchewan Assured Income for Disability Regulations, 2012 , RRS 2012 c S-8 Reg 11 [ Regulations ], made under The Saskatchewan Assistance Act , RSS 1978, c S-8 . The Board concluded that the Ministry and RAC did not err in their determination and the calculation of Leachman’s monthly income for the purposes of determining Leachman’s monthly needs. [ 4 ] The Board determined that the decision to assess an overpayment of SAID benefits was made fairly.

The Board found that it could not grant any remedies for discrimination that might be in the exclusive jurisdiction of the Saskatchewan Human Rights Commission. [ 5 ] Finally, the Board concluded that it had no jurisdiction to consider the issue of federal paramountcy and s. 15 of the Canadian Charter of Rights and Freedoms on the basis of s. 39(2.1) of the Regulations , which states, in part:

(2.1) An appeal board does not have the jurisdiction to hear any ground of appeal: (

a) that may require a decision or determination concerning the constitutional validity, applicability or operability of

an Act, a regulation made pursuant to

an Act,

an Act of the Parliament of Canada or a regulation made pursuant to

an Act of the Parliament of Canada; (

b) that may require a remedy pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms ; or ... [ 6 ] Because this judicial review is decided on the basis of reasonableness of the Board’s

interpretation of the Regulations , it is unnecessary for the Court to address the matters pertaining to discrimination and federal paramountcy. Background Facts [ 7 ] Leachman has received monthly benefits under SAID, pursuant to the Regulations , for some years. His disabilities are such that he is unable to be gainfully employed. There is no dispute that Leachman is eligible for these benefits. As stated in s. 3 of the Regulations , the purpose of SAID is as follows: 3

(1) The Saskatchewan Assured Income for Disability Program is continued.

(2) The purpose of the program is to provide long-term income support for individuals who: (

a) have significant and enduring disabilities, irrespective of whether the disabilities are physical, psychiatric, cognitive or intellectual in nature; (

b) do not have sufficient income from employment or other sources to permit self-sufficiency; and (

c) are not expected, based on available treatments or support, to attain long-term financial self-sufficiency through employment or self- employment. [ 8 ] In accordance with the calculation of budget shortfall as set out in s. 10 of the Regulations , the Ministry determined that Leachman was entitled to receive $1,491 per month. To determine if Leachman had a monthly budget shortfall, the Ministry calculated his monthly income in accordance with s. 13 of the Regulations .

If that monthly amount was less than the benefit Leachman was entitled to receive, that is, $1,491 per month, the Ministry paid Leachman the difference created by the shortfall. [ 9 ] There are many qualifications and restrictions in the Regulations that affect the calculation of a person’s monthly income, but the provisions in s. 13 of the Regulations and Table 1 of the Appendix directly affected Leachman. He was self-employed, operating a business of airbrushing paint designs onto various surfaces, under the business name of “Toxic Airbrush”.

Pursuant to s. 13 and Table 1 of the Regulations , Leachman was entitled to have the amount of $8,500 per year of earned income excluded from the calculation in determining his monthly income.

That is, the Ministry excluded the net business income, to a maximum of $8,500 per year, in determining if Leachman experienced a monthly budget shortfall to the extent that he was entitled to the monthly benefit of $1,491, or a portion of that monthly benefit. [ 10 ] The Saskatchewan Assured Income for Disability: Policy Manual , (Regina: Publications Saskatchewan, 2021) [ Policy Manual ], of which portions were provided by counsel for the Ministry to the Board, states the following at

Chapter 6.9.8 in describing the income and assets exemptions provided by s. 13 and Table 1 of the Regulations : 6.9.8 Entrepreneurs with a disability Beneficiaries who receive income from enterprises operated out of their home receive an earnings exemption on the net income (amount of income remaining after deducting expenses) when all of the following conditions are met: • low income; • operated by the beneficiary with a disability; and • minimal financial investment in the enterprise. [ 11 ] As explained to the Board by the Ministry’s assured income specialist, Leachman is such an entrepreneur entitled to the monthly exemption provided by Table 1.

His is not a “small business”, which is a different category referred to in the Policy Manual .

Chapter 6.4 of the Policy Manual states: 6.4 Self-Employment Income 6.4.1 Small Business Families with income over $125 per month must apply for the Saskatchewan Employment Supplement (SES). Definition Small business is defined as an operation in which products or services are sold or purchased. Included are commissioned sales agents, tradesmen, hairdressers, and persons operating a practice (e.g., reflexologists, masseuses). Also included are those who are owner/operator of businesses such as taxi or tow truck operators.

Income generated from the enterprise is expected to generate a viable income level which would make the beneficiary self-sufficient within a six-month time period. This period may be extended by a further six months. All cases are approved by the supervisor. Entrepreneurs with a disability, as defined in

Chapter 6.9.8, are not considered a small business. Requirements Those who are self-employed may receive benefits to meet basic living costs. However, they must have a business plan and establish a record of income and expenses within 30 days. Benefits cannot be issued for operating costs or to add to the value of the business. Income Net income from self-employment is available for basic living needs rather than being reinvested in the operation. Net income is determined by calculating the gross income and subtracting paid allowable expenses on a monthly basis. See Appendix C for allowable expenses.

The Monthly Income and Expense Report (Form 1214) is used to determine the income. Self-employed beneficiaries claim expenses and are not eligible for an earnings exemption. [Emphasis added] [ 12 ] This distinction outlined by the Ministry is an important fact on this judicial review as it is referred to in the Board’s decision. [ 13 ] The evidence is that Leachman was able to supplement his monthly income with his Toxic Airbrush business.

In the time frame prior to 2020, Leachman never exceeded the maximum exemption of $8,500 per year; he earned about $400 of net income per month from his business. [ 14 ] Everything changed for Leachman in 2020 when the pandemic affected his business. The contracts for his services diminished, but the costs of operating Toxic Airbrush remained. Leachman initially applied for the federal benefit provided in accordance with the Canada Emergency Response Benefit [CERB] and received a payment of $2,000.

CERB provided financial support to employed and self-employed Canadians who were directly affected by COVID-19. [ 15 ] Leachman then applied for the benefits pursuant to the Canada Recovery Benefits Act , SC 2020, c 12, s 2 [ CRB Act ]. Leachman qualified for eligibility pursuant to the CRB Act , which required him to be either seeking work as an employee or to be a self-employed person.

His entitlement to benefits under the CRB Act commenced October 2020, with a payment of $1,000 every two weeks, of which $100 was withheld for remitting for income tax, for a total amount of $900 every two weeks. [ 16 ] As filed as evidence with the Board in the Ministry’s appeal report, the Assured Income Specialist, Kylie Ramage, explained that Leachman had not provided the Ministry with his monthly business reports for the period of November 2020 to February 2021. Leachman finally provided that information on April 13, 2021.

Upon receiving Leachman’s business reports and bank statements from November 2020 to March 2021, the Assured Income Specialist learned that Leachman had been receiving Canada Recovery Benefit [CRB]. [ 17 ] The bank statements showed that Leachman received four payments of $900 on December 1, 2020, one payment of $2,000 on December 4, 2020, and $900 on each of the following dates: December 10, 2020; December 24, 2020; January 7, 2021; January 21, 2021; February 4, 2021; February 18, 2021; March 5, 2021; and March 19 2021. [ 18 ] While Leachman was late in providing his documents to the Ministry, the federal government was also slow in depositing CERB and CRB into his bank account.

The four payments of $900 that Leachman received on December 1, 2020, were for CRB covering the October and November 2020 time frame. The payment of $2,000 received December 4, 2020, represented the CERB for September 2020. [ 19 ] The Ministry made the following decision: A total of $12,800.00 unreported CRB payments were received, and was calculated as income. As per SAID Policy 6.3.2 (Income after application), if income from the previous month exceeds the current month’s budget shortfall, no benefits are issued.

As this income was not declared, and benefits had already been issued, all of the SAID benefits that Bryan received from January 2021 to April 2021 are considered overpayments, because he was not eligible to receive them. This created a total overpayment of $5,964.00 for that time line. The CRB is a continuous income that Bryan is eligible to receive, SAID Policy 15.2 (Methods of Overpayment Calculation – Undeclared Recurring Income) was applied. This states, “The monthly entitlement is recalculated from the month after the income commenced. Benefits are included in the monthly budget.

The beneficiary has a budget surplus; therefore, further benefits are suspended. … Client is in receipt of CRB income of $1800.00 per month which exceeds his SAID monthly budget. This income creates a budget surplus on his file and therefore creates no eligibility for on-going SAID benefits.

Income received from December 1, 2020 to March 19, 2021 has been calculated, an over-payment has been created and file is closed. [ 20 ] That decision of the Ministry, calculating a total overpayment of $5,964 (for the four-month period of December 2020 to and including March 31, 2021, representing four SAID benefits of $1,491 per month received by Leachman), was upheld on appeal to RAC on June 3, 2021. The Ministry’s decision was upheld on appeal to the Board on July 14, 2022. The Board’s Decision [ 21 ] Two issues of statutory

interpretation of the Regulations were before the Board, the definition of “earned income” and the calculation of business losses to determine the net monthly income in accordance with s. 13 of the Regulations . The

Board’s decision on these issues is as follows: Analysis: Issue of earned income The Board heard significant information and received significant materials with respect to the

interpretation of the phrase “earned income”. Mr. Leachman urges the Board to find that CERB or CRB meet the definition of earned income and should therefore be afforded the treatment of earned income when it comes to exemptions for the purposes of SAID budget and benefits. The Ministry presented the Board with its

interpretation that earned income meant exactly that it was income that was earned by the beneficiary. Income earned is something different than federal benefits received through a program that requires simply satisfaction of a set of criteria. It is a stretch of

interpretation and outside the ordinary meaning of the words “earned income” to find that federal emergency benefits programs are the same thing as income earned through some kind of labour, effort, or pursuit. If CRB is earned income, then the $8,500 exemption would have to apply. Therefore, the Board must look at the definition and determine if CRB is earned income so that it can be exempted. When one reviews what the CRB program is, and what the SAID regulations provide for exemptions, it is clear from the Ministry's perspective that CRB does not equal earned income.

The criteria for CRB eligibility were founded in how the pandemic affected people. It was a federal benefit to get money to people to support them, because of unexpected income loss due to the COVID 19 pandemic, not to support business operations. The definition of earned income came in place on April 1, 2021, in the SAID regime. It was on April 30, 2021, that the Ministry made its decision in Mr. Leachman’s case.

It is clear from the Ministry’s perspective that CRB is not earned income, rather, it is a payment from federal legislation that arises because a person meets some eligibility requirements. “Earned” in its plain and ordinary

interpretation must be earned not simply by meeting criteria. One would expect some work or service or goods to be produced in exchange for income. The

interpretation that existed before April 1, 2021, included

definitions that mentioned financial resources, but income was not specifically defined. It was a broad financial resources approach. Ms. Ramage gave a detailed review of how monthly income is calculated pursuant to the Regulations. The Ministry would not factor business expenses into the equation of the business income. CRB is not treated as earned income because CRB is not earned income. The Ministry was correct in applying Policy 6.4.1. Because CRB was not earned income, they were not required to complete the calculation. As such the Board finds that the Ministry and the RAC were correct and did not err in their

interpretation of earned income. Issue of calculation of monthly income Ms. Ramage explained that pursuant to SAID Policy, money received is included in income in the month after which it is received. The evidence before the Board was that this was exactly the process that the Ministry followed in this case. Mr. Leachman’s income by way of CRB payments was determined in the month after he received it, to be income in his possession. This Board sees no error in the evidence and materials before it and sees no misapplication or misinterpretation of the calculation of Mr. Leachman’s monthly income.

There is no obligation to take into account business losses for a person who is in receipt of SAID benefits. Mr. Leachman’s choice to continue his business operations was his to make. The Ministry does not have to account for business losses when factoring monthly income. Therefore, the Board finds that the Ministry and the RAC were correct in their

interpretation and the calculation of Mr. Leachman’s monthly income. Issues and Standard of Review [ 22 ] The issues pertaining to the statutory

interpretation of the Regulations are: 1. Whether the CERB and CRB that Leachman received constitute “earned income” for the purpose of the exclusion of the amount set out in Table 1 of the Appendix in determining monthly income as set out in s. 13(2) of the Regulations ; 2.

Whether Leachman’s business expenses may be deducted from CERB and CRB for the purpose of calculating the net amount of moneys due to him from all sources in setting Leachman’s monthly income as provided by s. 13(2) of the Regulations . [ 23 ] Counsel for Leachman and for the Ministry agree that the framework for judicial review is set out in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ] . The presumptive standard of review for analyzing these two issues regarding the

interpretation of the Regulations is reasonableness. The onus is on Leachman to prove that the Board’s decisions were unreasonable. Analysis of Issues 1. Whether the CERB and CRB that Leachman received constitute “earned income” for the purpose of the exclusion of the amount set out in Table 1 of the Appendix in determining monthly income as set out in s. 13(2) of the Regulations [ 24 ] Section 13(2) of the Regulations states: 13

(2) Subject to subsections (3) to (8), the monthly income of an individual or family member is the net amount of moneys due to him or her from all sources as determined by the minister other than the items set out in Table 1 of the Appendix. [ 25 ] Table 1 of the Appendix, as it pertains to Leachman, is as follows:

(2) For the purposes of

section 13 of the regulations, the following items are to be excluded when determining the monthly income of an individual: (

a) an amount of earned income and honoraria in the calendar year received by the individual, prorated as may be necessary based on

the month during which the individual becomes eligible for a benefit, equal to: (i) $8,500 if the individual has one or more dependent children but no dependent spouse; … [26]

Section 2 of the Regulations was amended to include the definition of “earned income”, which came into forceon April 1,

Section 2(g.1) states: 2 In these regulations: … (g.1) “earned income” means, with respect to an individual, payment for services received by the individual from an employer andpayment received by the individual under a contract of service; … [27] Leachman’s counsel submits that the starting point for statutory

interpretation of legislation is as set out inVavilov at paras 117-118: [117] A court interpreting a statutory provision does so by applying the “modern principle” of statutory

interpretation, that is, that thewords of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of theAct, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27,at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger,Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way ofstatutory rules that explicitly govern the

interpretation of statutes and regulations: see, e.g.,

Interpretation Act, R.S.C. 1985, c. I-21. [118] This Court has adopted the “modern principle” as the proper approach to statutory

interpretation, because legislative intent can beunderstood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context:Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that hasregard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrativedecision maker.

An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret thelaw — whether courts or administrative decision makers — will do so in a manner consistent with this principle of

interpretation. [28] Leachman’s counsel also refers to s. 2-10 of The Legislation Act, SS 2019, c L-10.2, which states: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature.

(2) Every Act and regulation is to be construed as being remedial and is to be given the fair, large and liberal

interpretation that bestensures the attainment of its objects. [29] Leachman’s counsel submits that, because there was no defined term in the Regulations for the phrase “earnedincome” prior to April 1, 2021, and all the CERB and CRB moneys were received by Leachman prior to the enactment of the definition,a broader

interpretation of the phrase should be adopted than was accepted by the Board. [30] Counsel for Leachman refers to Labrecque v Her Majesty The Queen, 2007 TCC 195 at para 18 [Labrecque], insupport of the proposition that “earned income”, if not defined, could include benefits one receives. Paragraph 18 of Labrecque states: [18] According to Lamarre Proulx J., the legislation did not restrict the right to deduct child care expenses to only those persons whoare physically at work. She wrote the following at page 1826:

(3) If Parliament had wished to limit the application of this right to the period in which the person is physically at work, why would ithave included in the definition of earned income certain sources of income other than earnings and gratuities such as, for example, thebenefits described in paragraph 6(1)(f). Parliament could have limited the definition of earned income to wages, salaries and otherremuneration, including gratuities, received by the person in respect of, in the course of or by virtue of offices and employments.

If therespondent's reasoning is taken to the limit, Parliament could even have excluded income earned during vacations from the definition ofearned income. I am forced to conclude, therefore, that Parliament did not rule out situations where the person receives benefits inrespect of, in the course of or by virtue of employment that he still holds, without being physically present at the work place, to theextent that the expenses claimed were incurred to perform the duties of the employment.

I believe that if I allow the deduction claimed by the appellant, I am taking into account the economic realities facing a parent whoemploys a babysitter, and I feel that my

interpretation is consistent with both the wording and the object of the tax legislation. [31] Oppositely, counsel for the Ministry submits that although the definition of “earned income” in the Regulationsdid not come into effect until April 1, 2021, s. 2-15(2) of The Legislation Act is full answer to whether the amended definition applies tothe moneys received by Leachman. [32]

Section 2-15(2) of The Legislation Act states: 2-15(2) The amendment of an enactment is not to be construed to be or to involve a declaration that the law pursuant to the enactmentbefore the amendment was or was considered by the Legislature or other body or person who enacted it to be different from the lawunder the enactment as amended.

[33] Unfortunately, s. 2-15(2) of The Legislation Act is not the full answer; it merely refers to enactments. Thedefinition of “earned income” in the context of this case is derived from the Regulations. Different statutory

interpretations apply toRegulations, as explained by Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham, Ont: LexisNexis, 2014) at§25.176 and §25.177: §25.176 It is presumed that the legislature does not intend to delegate a power to legislate retroactively, retrospectively or to interferewith vested rights. As Southin J.A. put it in Casamiro Resource Corp. v.

British Columbia (Attorney General) [(1991), (BC CA), 80 DLR (4th) 1 (BCCA)], such a delegation would be out of keeping with Canadian notions of decent legislative behaviour. §25.177 In practice, this means two things: (1) regulations and other forms of delegated legislation are presumed only to applyprospectively and not to interfere with vested rights; and (2) delegated legislation that claims to have retroactive application or tointerfere with vested rights is presumed to be invalid. Both presumptions are rebuttable.

See, for example: British Columbia (Attorney General) v Parklane Private Hospital Ltd., (SCC), [1975] 2 SCR 47 at60. [34] Thus, the Ministry cannot simply rely on the amendment that defines “earned income” to exclude CERB andCRB received by Leachman prior to April 1, 2021.

And while the Board misapplied the provisions of Policy 6.4.1 pertaining to “smallbusiness” recipients of SAID, rather than addressing the provisions of Policy 6.9.8 pertaining to “entrepreneurs with a disability”, ofwhich Leachman is one, the Board’s conclusion that CRB benefits are not earned income is a reasonable conclusion. [35] The ratio in Labrecque, referred to by Leachman’s counsel, is of no benefit for the analysis that must be takenby the reviewing court. The decision in Labrecque is an appeal of a notice of assessment made by the Minister of National Revenue tothe Tax Court of Canada.

This judicial review is governed by the principles articulated in Vavilov, and specifically at paragraph 170. Ifthe decision of the administrative body is reasonable, it is not to be interfered with. There is no basis to interfere with the Board’sdefinition of “earned income”. 2.

Whether Leachman’s business expenses may be deducted from CERB and CRB for the purpose of calculating the net amount ofmoneys due to him from all sources in setting Leachman’s monthly income as provided by s. 13(2) of the Regulations [36] Counsel for the Ministry concedes that CERB and CRB are included in the definition of “moneys due to”Leachman as provided by s. 13(2) of the Regulations.

However, the Ministry takes the position that expenses incurred by Leachman inoperating Toxic Airbrush between December 2020 and March 2021 can only be deducted from the moneys he received under hiscontracts of service during each respective month. If the monthly expenses exceed the monthly income from operating his business,those expenses cannot be offset from the moneys he received from CERB and CRB. [37] The evidence is that, between September 2020 and March 2021, the expenses of operating the businessexceeded the moneys received form Leachman’s contracts of service.

The CERB and CRB benefits allowed Leachman to continue tooperate his business. However, the net amount of moneys due to Leachman from all sources were insufficient to meet the minimumSAID monthly benefit for which Leachman was entitled.

The net amount available to Leachman was further reduced once thecalculation of “earned income” that Leachman was entitled to have excluded (to a maximum of $8,500 per year) each month from thepayments he received as an entrepreneur under the contracts of service. [38] The Board accepted the Ministry’s evidence that Leachman received CERB and CRB between December 1,2020, and March 19, 2021, in the sum of $12,800. Leachman received $1,491 from SAID during the same four-month time frame.

TheMinistry did not take into consideration that a portion of the federal benefit of $12,800 represented federal benefits Leachman wasentitled to receive for the months of September, October and November 2020, totaling $5,600. On that basis alone, the Board wasunreasonable in concluding that the Ministry made “no misapplication or misinterpretation of the calculation of Leachman’s monthlyincome”. [39] The Board provided the following reasons in concluding that the Ministry was correct in its

interpretation ofLeachman’s monthly income: … There is no obligation to take into account business losses for a person who is in receipt of SAID benefits. Mr. Leachman’s choice tocontinue his business operations was his to make. The Ministry does not have to account for business losses when factoring monthlyincome. … [40] The issue before the Board was the statutory

interpretation of “net amount of moneys due to” Leachman asstated in s. 13(2) of the Regulations. The determination of whether the Board’s

interpretation is reasonable must be analyzed havingregard to the text, context, and purpose of the Regulations.

See: Vavilov, at paras 117-118. [41] The Regulations provide a mechanism for a qualifying disabled person to receive long-term income support, andto allow that person to have a specified portion of earned income excluded from the monthly calculation to determine if a qualifyingdisabled person has a monthly budget shortfall as defined in s. 10 of the Regulations. [42] The only reasons articulated by the Board in concluding that the Ministry was correct in disallowing all ofLeachman’s monthly business expenses from the total monthly income to calculate the net monthly income due to him from all sourceswas to make the blunt statement that the Ministry was not obligated to take business losses into account.

Furthermore, the Board drewthe conclusion that it was Leachman’s choice to continue his business operations during the pandemic, and the Ministry did not have totake those business losses into account when calculating Leachman’s monthly income. [43] The Board’s decision lacked the analysis it was required to embark upon in the statutory

interpretation of s.13(2) of the Regulations. The Board did not even refer to this provision in its reasoning.

[44] As stated in Vavilov, the Board was required to interpret s. 13(2) of the Regulations in accordance with the text,context and purpose of that provision. Vavilov, at paras 120-122, states: [120] But whatever form the interpretive exercise takes, the merits of an administrative decision maker’s

interpretation of a statutoryprovision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutoryinterpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are“precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada TrustcoMortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10.

Where the meaning of a statutory provision is disputed inadministrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements. [121] The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context andpurpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an

interpretation it knows to be inferior —albeit plausible — merely because the

interpretation in question appears to be available and is expedient. The decision maker’sresponsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome. [122] It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinentaspect of its text, context or purpose. Where such an omission is a minor aspect of the interpretive context, it is not likely to underminethe decision as a whole.

It is well established that decision makers are not required “to explicitly address all possible shades of meaning”of a given provision: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3. Just like judges,administrative decision makers may find it unnecessary to dwell on each and every signal of statutory intent in their reasons. In manycases, it may be necessary to touch upon only the most salient aspects of the text, context or purpose.

If, however, it is clear that theadministrative decision maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrivedat a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances.

Like other aspectsof reasonableness review, omissions are not stand- alone grounds for judicial intervention: the key question is whether the omittedaspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker. [Emphasis added] [45] Such is the situation before the reviewing court in this instance. The Board, having given no consideration to thestatutory

interpretation of s. 13(2) of the Regulations is “indefensible, and unreasonable in the circumstances.” The Board even went sofar as to infer that Leachman’s choice in accepting the federal CERB and CRB benefits to offset the business losses incurred because ofthe pandemic in order to remain in business is a justification to disallow the business losses in the overall calculation of “net” amounts ofmoneys due to Leachman. [46] Interpreting a provision of the Regulations that aligns with the purpose of promoting Leachman to continue hisself-employment in spite of his disability is the only reasonable

interpretation that can be made. [47] Furthermore, it was incumbent upon the Board to provide reasons why the Ministry’s restrictive view of thecalculation of “net” amount of moneys due to Leachman was the preferred

interpretation. The consequences to Leachman of hisacceptance of the federal benefits without calculating the business losses incurred are obvious, and they are harsh. The Board concludedthat the Ministry was correct in calculating that Leachman owed the Ministry $5,964, and that his benefits from SAID were suspended. [48] The impact of the Board’s decision on Leachman required the Board to provide reasons that reflect theconsequences of its decision on Leachman.

Vavilov, at paras 133-135, states: [133] It is well established that individuals are entitled to greater procedural protection when the decision in question involves thepotential for significant personal impact or harm: Baker [ (SCC), [1999] 2 SCR 817], at para. 25. However, thisprinciple also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is theperspective of the individual or party over whom authority is being exercised.

Where the impact of a decision on an individual’s rightsand interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means thatif a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision bestreflects the legislature’s intention.

This includes decisions with consequences that threaten an individual’s life, liberty, dignity orlivelihood. [134] Moreover, concerns regarding arbitrariness will generally be more acute in cases where the consequences of the decision for theaffected party are particularly severe or harsh, and a failure to grapple with such consequences may well be unreasonable.

For example,this Court has held that the Immigration Appeal Division should, when exercising its equitable jurisdiction to stay a removal order underthe Immigration and Refugee Protection Act [SC 2001, c 27], consider the potential foreign hardship a deported person would face:Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84. [135] Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people,including the most vulnerable among us.

The corollary to that power is a heightened responsibility on the part of administrative decisionmakers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences arejustified in light of the facts and law. [Emphasis added] [49] In short, the Board’s decision considers none of its consequences. The Board’s decision is unreasonable andmay be reviewed by the Court. [50] By taking advantage of the federal benefits provided through CERB and CRB, Leachman was able to continueto operate his business even though he was operating it at a loss.

This federal benefit was not only a programme that benefittedLeachman, it benefitted Saskatchewan by assisting a self-employed entrepreneur through the economic downturn caused by thepandemic. [51] The text of s. 13(2) of the Regulations is clear; the monthly income of an individual is the “net” amount ofmoneys due from all sources. CERB and CRB are some of those sources. To accept the Ministry’s position that Leachman’s businesslosses can only be deducted from the income he earned from contracts of service ignores the reality that during the pandemic, businesses

were losing money because of the loss of the customer base and the contracts of service. The only reasonable

interpretation of s. 13(2) of the Regulations is to calculate Leachman’s net monthly income by deducting all business losses from all amounts of moneys due to him, including the CERB and CRB. [ 52 ] Leachman started receiving the federal benefits in September 2020, although the funds did not begin to be deposited in his bank account until December 1, 2020.

The net amount of moneys due must be recalculated, on a monthly basis, commencing in the month of September 2020 and each month thereafter. [ 53 ] However, the calculation of net amount of moneys due is not simply the arithmetic of adding all monthly income less business expenses. The Ministry must calculate and exclude on the same monthly basis, any amount of earned income received as provided in Table 1, prorated as may be necessary, equal to a maximum of $8,500 per year. In Leachman’s situation, that constitutes the monthly payments received under the contracts of service from Toxic Airbrush.

At this stage, the monthly calculation of the excluded earned income is the actual amount of the contracts of service; the expenses associated with earnings that monthly income have already been deducted in the calculation of “net” monthly income in accordance with s. 13(2) of the Regulations . [ 54 ] The Ministry is entitled to recalculate the moneys on a monthly basis. That is what it did when it concluded that Leachman was subject to an overpayment.

It must now recalculate the moneys from September 2020 onward, allocating the federal benefits to the respective months for which they were intended to have been provided under CERB and CRB. The Remedy [ 55 ] It is hereby ordered that the decision of the Board dated July 14, 2022, is quashed.

This matter is remitted to the Ministry to recalculate Leachman’s monthly income as defined in s. 13(2) of the Regulations in accordance with the reasons and guidance outlined herein. [ 56 ] It is with the benefit of this Court’s reasons that the Ministry will be able to determine whether, and in what amount, there is any overpayment due from Leachman to the Ministry. “A.R. Rothery” J. A.R. ROTHERY