Michelle Puddicombe Appellant And: GOVERNMENT OF NEWFOUNDLAND v. LABRADOR (DEPARTMENT OF ADVANCED EDUCATION, SKILLS AND, 2019 NLSC 180

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Puddicombe v. Newfoundland and Labrador (Department of Advanced Education, Skills and Labour - Income and Employment Support Appeal Board) , 2019 NLSC 180 Date : October 9, 2019 Docket : 201701G4224 Between: Michelle Puddicombe Appellant And: GOVERNMENT OF NEWFOUNDLAND AND LABRADOR (DEPARTMENT OF ADVANCED EDUCATION, SKILLS AND LABOUR - INCOME AND EMPLOYMENT SUPPORT APPEAL BOARD) Respondent Before: Justice Sandra R.

Chaytor On Judicial Review From: A Decision of the Income and Employment Support Appeal Board, File # 0916598 dated October 21, 2016. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: October 2, 2019

Summary: This is an appeal pursuant to the Income and Employment Support Act of a decision of the Income and Employment Support Appeal Board that found Michelle Puddicombe was not entitled to benefits received pursuant to the Act as she had failed to disclose that she was in a conjugal relationship during the period of receipt of benefits and that she had not been forthright in providing information on her application for benefits.

Held: The Court applied the Baker criteria and determined that a high level of procedural fairness was owed to Ms. Puddicombe in thecircumstances. The Board breached the procedural fairness owed by: (1) not providing relevant documentation to Ms. Puddicombe inadvance of the hearing; (2) not permitting Ms. Puddicombe an opportunity to question the other side; and (3) raising a new ground ofdisentitlement to benefits without providing Ms. Puddicombe an opportunity to address the issue. The matter was referred back to the Board for a re-hearing. Appearances: Philip G.

Warren Appearing on behalf of the Appellant Jessica Pynn Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Seaspan Ferries Corp. v. British Columbia Ferry Services Inc., 2013 BCCA 55; Moreau-Bérubé v. NewBrunswick (Judicial Council), 2002 SCC 11 , [2002] 1 S.C.R. 249; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817; 1657575 Ontario v. Hamilton (City), 2008 ONCA 570. STATUTES CONSIDERED: Income and Employment Support Act, SNL 2002, c. I-0.1; Income and Employment SupportRegulations, NLR 144/04; Public Inquiries Act, RSNL 1990, c. P.38.

RULES CONSIDERED: Rules of the Supreme Court, 1986, SNL 1986, c. 42, Sch. D. REASONS FOR JUDGMENT Chaytor, J.: Overview [1] Michelle Puddicombe had been gainfully employed prior to being faced with a tragic situation. One of her school-aged twindaughters was diagnosed with brain cancer. Ms. Puddicombe applied for and received income support benefits as the single parentpursuant to the Income and Employment Support Act, SNL 2002, c. I-0.1 (the “Act”). She received benefits from December 2014 toAugust 2016 in amount of $36,804.64.

Sadly, her daughter died February 15, 2016. [2] Lenora Ryan, a client services officer investigator with the Department of Advanced Education, Skills and Labour carried outan investigation and found that Ms. Puddicombe had been in an unreported conjugal relationship with Anthony Hannam during theperiod of time she received benefits. Therefore it was determined she was not eligible to receive benefits. Her benefits were suspendedand an overpayment for the benefits received was established on her file.

It was also found that she would not be eligible for areimbursement for expenses incurred in travelling out-of-province for her daughter’s treatment. Ms. Puddicombe was advised of this byway of a letter dated August 16, 2016. [3] Ms. Puddicombe appealed the investigator’s finding through an internal review, being the first level of appeal under the Act. By way of correspondence dated September 6, 2016 from Judy Hodge, Regional and Quality Coordinator with the Department, Ms.Puddicombe was advised that the review committee upheld the decision of Ms. Ryan. On September 15, 2016, Ms.

Puddicombeproceeded to the next avenue of appeal pursuant to the Act by filing an appeal to the Income and Employment Appeal Board. Thisincluded the filing of a written submission. By way of correspondence dated, September 20, 2016, the Board executive secretary, GwenEnglish advised Ms. Puddicombe that she may have a witness or representative to help her with the appeal and that if she intended to berepresented by legal counsel she would need to give advance written notification to the Board. On October 17, 2016, Ms. Puddicombe

attended at the Board hearing with a support person and Mr. Hannam. She did not have legal counsel. [4] At the commencement of the Board hearing, Ms. Puddicombe submits that, for the first time, she was provided a copy of Ms.Ryan’s investigative report and a substantial amount of other documentation which formed the basis for the findings in the report. Thehearing then proceeded with the Board outlining the procedure it would follow. Ms. Ryan then gave evidence with respect to her reportfollowing which Ms. Puddicombe was asked to make her submission. Ms. Puddicombe along with Mr.

Hannam gave evidence at thehearing and were subjected to questioning by both Board members and the representatives of the Department, Ms. Ryan and Ms. Hodge. [5] On October 21, 2016, the Board provided a written decision upholding that of the review committee. In reaching its decision,the Board reviewed the criteria set out in the subsection 45(1) of the Regulations to the Act and found that sufficient evidence of aconjugal relationship had been established. It also determined a new ground of disentitlement in finding that Ms.

Puddicombe had notbeen forthright in her application for benefits in that she had declared the father of her children to be ‘unknown’ when she knew hisidentity. [6] This is an appeal of the Board’s decision. Pursuant to sub-section 45(2) of the Act, an appeal lies from the decision of theBoard to this Court upon a point of law, or mixed law and fact. [7] Ms.

Puddicombe, now represented by counsel, put forward two grounds of appeal: 1. that the decision upholding a finding of an undisclosed family unit was unreasonable; and 2. that she was denied procedural fairness at the hearing. [8] An appeal on an issue of procedural fairness is predominantly an appeal on a question of law (Seaspan Ferries Corp. v. BritishColumbia Ferry Services Inc., 2013 BCCA 55). It is less clear whether the first issue raises a question of law, or mixed law and fact, soas to bring it within the ambit of the Act. However, for the reasons that follow I find that Ms.

Puddicombe succeeds on the second groundand therefore, there is no need to deal with the first issue. Standard of Review [9] The law is well settled that it is unnecessary to assess the appropriate standard of review with respect to an issue of a denial ofprocedural fairness. The duty to comply with the rules of natural justice and to follow rules of procedural fairness extends to alladministrative bodies acting under statutory authority. (Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11 ,[2002] 1 S.C.R. 249).

The Level of Procedural Fairness Owed [10] To evaluate whether the Board has adhered to procedural fairness, the Court must conduct an assessment of the procedures andsafeguards instituted by the Board in the hearing of the appeal. In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, the Supreme Court of Canada articulated five factors recognized in the jurisprudence whichmay be of assistance in determining the appropriate level of procedural fairness required. While the list is not intended to be exhaustive,consideration should be given to: 1.

The nature of the decision and the decision making process; 2. The nature of the statutory scheme; 3. The importance of the decisions to those affected; 4. The legitimate expectations of the party challenging the decision; and 5. The choices of procedure made by the decision maker. [11] Both parties submit that applying the Baker criteria, Ms. Puddicombe was owed a high level of procedural fairness. Based onthe analysis that follows, I agree. [12] First, the nature of the decision and the decision-making process employed by the Board support that a high level of proceduralfairness was owed.

The nature of the decision is such that Ms. Puddicombe was found to have engaged in deceitful activity. Pursuant tosection 48 of the Act, a person can be charged with a

summary conviction offence if he or she knowingly obtains income support towhich he or she is not entitled or if false or misleading information is provided on an application for income support. High proceduralsafeguards are required when such allegations are made against an individual. [13] Furthermore, the closer the process resembles a trial model, the more procedural protections are required to meet the higherlevel of procedural fairness required. The Act mandates time lines for filing an appeal as well as notice provisions.

Pursuant to the Act,the Board has the powers conferred on a commissioner under the Public Inquiries Act, RSNL 1990, c. P.38. In this case, although thehearing was less formal than that of a trial, it was nonetheless a hearing at which the Act allows for the production of evidence andrepresentation by counsel. Furthermore

section 58 of the Regulations requires that the appeal be conducted with sworn evidence and thatclear reasons, in writing, be given for the Board’s decision. [14] With respect to the second factor, the nature of the statutory scheme, greater procedural protections are required when thedecision is final. The decision by the Board was the last administrative level of appeal for Ms. Puddicombe and any appeal to the Courtcould only be made on the basis of an error of law or mixed law and fact.

As such, a higher level of procedural protection would beexpected to be afforded at the Board level than at the review committee level but not as high a level as if there were no further avenue ofappeal. This factor suggests at least a mid-level of procedural fairness was owed in this case.

[15] Thirdly, I find that the decision is of significant consequence to Ms. Puddicombe. The amount of the money she was found toowe is a substantial sum as is the amount of money she incurred (and will not be reimbursed) for her daughter’s medical expenses. Inaddition, the finding that she is no longer entitled to benefits impacts her ability to avail of resources towards her pursuit of highereducation aimed at assisting her in achieving her vocational goals. But the significance of this decision goes beyond financialimplications.

It is a decision which affects her reputation in that she has been found not to have been forthright in applying for andreceiving income benefits. Ms. Puddicombe has been advised that this means any future application by her for benefits will beinvestigated at a higher level of scrutiny. Given all of the foregoing, a high level of procedural fairness was warranted in this case. [16] With respect to the fourth factor, the legitimate expectations of Ms.

Puddicombe, the Board represented through its Chair andits executive secretary the procedure that would be followed during the hearing which included an opportunity for the parties to posequestions during the process. In addition, sub-section 43(7) of the Act contemplates the timely production of documentation. Based uponthe statutory requirements and the procedure the Board articulated would be followed, Ms.

Puddicombe would have a legitimateexpectation of a high level of procedural fairness. [17] With respect to the fifth factor, in analyzing which procedures the duty of fairness requires, deference is to be given to theBoard’s choice of procedure to the extent that the Act and Regulations leave to the Board the ability to choose its own procedure. Theremust also be recognition of the Board’s expertise in conducting these type of appeals. Although

section 58 of the Regulations states thatthe Board may set its policy and procedures, the Board is not given full discretion in terms of procedure. For example, as previouslymentioned, the Board must receive sworn evidence and give a written decision. As well, the Act prescribes time lines and notices to befollowed. Otherwise, the Board has discretion as to how to conduct an appeal. This does not mean, however, that the duty to comply withthe rules of natural justice can be short-circuited or that the Board, having chosen a certain procedure could then depart from thatprocedure.

Overall, I find that this factor suggests a mid-to high level of procedural fairness was owed in this case. [18] Overall having considered the Baker criteria and the circumstances of this case, I find the Board owed Ms. Puddicombe a highlevel of procedural fairness. Was There a Breach of Procedural Fairness? [19] I now turn to an analysis as to whether there was a breach of procedural fairness. For the reasons that follow, I find that therewere three areas in which the Board breached the requisite level of procedural fairness. 1.

Untimely disclosure of documentation [20] Sub-section of 43(7) of the Act contemplates the production of documents for consideration on the appeal and for apostponement when that documentation is not received: The Board may, where the appropriate documents for consideration of the appeal have not been received, postpone the hearing until theearliest possible date after those documents have been received. [21] It is clear that prior to the hearing, the Board anticipated receiving the written documentation that had been considered by thereview committee. In Ms. English’s September 20, 2016 correspondence to Ms.

Puddicombe she wrote, “Your input at the AppealHearing will enable the Board to hear your evidence as well as review the written information considered by the Internal Review.” [22] Upon arriving at the hearing, Ms. Puddicombe submits that she was provided for the first time with a copy of the investigativereport and attached documents comprising approximately 80 pages. These were the documents used to substantiate the investigativefindings against her and presumably the “written information” that had been before the review committee. Ms.

Puddicombe submits thatthe Board hearing proceeded without her being offered a postponement or an opportunity to re-visit whether she wished to berepresented by counsel. [23] Counsel for the Department was unable to confirm the timing of the production but did not take issue with Ms. Puddicombe’sassertion. There is nothing in the record to contradict her assertion. The Department takes the position that the late production did notprejudice Ms. Puddicombe in that prior to the hearing she was fully aware of the allegations against her and the existence of much of thedocumentation and the issues that it raises.

This is evident from the reference in her written submission to certain of the documents suchas her daughter’s obituary and social media excerpts. I do not agree with this submission. Knowledge of the existence of some of thedocuments and the issues these might be used to support is not the equivalent of awareness of the full case to be met. [24] Knowledge of the case to be met is a basic principle of procedural fairness yet it is of prime importance to a party’s ability toexercise one’s right to be heard.

The principle of a party having an opportunity to present its case fully and fairly and the importance ofdisclosure in enabling that to happen was highlighted by Rouleau, JA in 1657575 Ontario v. Hamilton (City), 2008 ONCA 570 atparagraphs 25-26: [25] Disclosure is a basic element of natural justice at common law and, in the administrative context, procedural fairness generallyrequires disclosure unless some competing interest prevails.

As discussed in David Jones and Anne De Villars, Principles of Administrative Law, 4th ed. (Scarborough, Ont.: Thomson Carswell, 2004), at 258: The courts have consistently held that a fair hearing can only be had if the persons affected by the tribunal’s decision know the case to bemade against them. Only in this circumstance can they correct evidence prejudicial to their case and bring evidence to prove theirposition. Without knowing what might be said against them, people cannot properly present their case. See also May v.FerndaleInstitution, 2005 SCC 82 , [2005] 3 S.C.R. 809, [2005] S.C.J.

No. 84, at paras. 92-93.

[26] As noted by Lane J. in Waxman v. Ontario (Racing Commission), (ON SCDC), [2006] O.J. No. 4226, 216O.A.C. 353 (Div. Ct.), at para. 11, the failure to make proper disclosure has the effect of rendering the process “irretrievably tainted withunfairness from the outset”. [25] Proper disclosure includes timely disclosure. Without full disclosure in a timely manner, Ms. Puddicombe was denied theopportunity to make a fully informed written and oral submission to the Board.

This deprived her of the opportunity to know the entirecase against her in advance and to take appropriate steps to prepare and present argument in support of her position based on fullknowledge of the case. [26] I have determined that the level of the duty of procedural fairness owed to Ms. Puddicombe was high. This was expected toinclude an obligation that Ms. Puddicombe be provided all relevant documentation in sufficient time to review prior to filing her writtensubmission and appearing on the appeal. It is only with transparency and full disclosure that Ms.

Puddicombe could have a meaningfulopportunity to respond to the allegations against her. As such, I find there was a breach of the duty of procedural fairness owed to Ms.Puddicombe by the Board. Ms. Puddicombe did not have the benefit of legal counsel at the Board hearing. Faced with the production ofdocumentation at the beginning of the hearing, it was incumbent on the Board to offer Ms. Puddicombe a postponement to allow her areasonable opportunity to review the documentation and to re-visit whether she wished to retain counsel prior to proceeding with theappeal. 2.

No opportunity to cross-examine witnesses [27] I further find that there was a breach in procedural fairness in how the hearing was conducted. At the beginning of the Boardhearing, the executive secretary to the Board outlined the procedure that would be followed, stating: I will next turn the hearing over to our chairperson, Mr. Green who will read the case. Once that is done, the board will ask somequestions, give you a chance to make some statements and ask some questions.

Then we will have a conversation regarding this appeal. [28] The Chair in his opening remarks stated, “There will be lots of opportunity throughout the hearing for comments, questions orthat sort of thing from everybody”. Ms. Ryan was then called upon to give evidence and she proceeded to read her investigative reportinto the record. There were no questions asked of Ms. Ryan during her testimony nor did the Board invite questions of her from Ms.Puddicombe. Instead immediately following Ms. Ryan’s testimony, the Board Chair called upon Ms. Puddicombe to “present herinformation to the board.” [29] Both Ms.

Puddicombe and Mr. Hannam gave oral evidence in support of Ms. Puddicombe’s case. At the end of Ms.Puddicombe’s evidence, the Board Chair specifically invited the Department representatives and Board members for comments or to askquestions (paragraph 20 of transcript). This was followed by questioning of both Ms. Puddicombe and Mr. Hannam by Board membersand Ms. Hodge. At paragraph 26 of transcript, the Board Chair inquired if anybody else had any questions or comments. This wasfollowed by further questioning of Ms. Puddicombe and Mr. Hannam by Board members and Ms. Hodge. No questions were asked ofMs. Ryan.

I find the placement of the invitation for questioning by the Board Chair at the end of the evidence for Ms. Puddicombewould not have been sufficiently clear to signal to Ms. Puddicombe that this included an opportunity for her to ask questions of Ms.Ryan. In so finding, I note that the Board Chair did not invite questions at the end of Ms. Ryan’s testimony. Rather, Ms. Puddicombe wasimmediately asked to present her evidence. [30] Counsel for the Department noted that Ms.

Puddicombe asked a question at end of the hearing and that this illustrates she feltcomfortable enough in the process to pose questions if she so desired. I do not agree that this supports that Ms. Puddicombe would haveunderstood she could ask questions of Ms. Ryan. The question she asked occurred after the conclusion of hearing when the Board Chaircalled upon the Ms. English to explain the next steps in the process. After Ms. English’s remarks, Ms. Puddicombe asked her a questionregarding timing of receipt of the decision.

This was not a question on the substance of the allegations and it occurred in the context ofnext procedural steps. [31] In Baker, the Supreme Court of Canada (at paragraph 22) noted that underlying the five factors is the notion that the purpose ofthe participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fairand open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity forthose affected by the decision to put forward their views and evidence fully and have them considered. [32] It will generally be unfair for an administrative decision-maker to act in contravention of representations as to procedure (Baker,at paragraph 26).

In this case, the Board represented that there would be ample opportunity for everyone involved in the process to posequestions. At no point during the hearing was Ms. Puddicombe specifically invited to ask questions of Ms. Ryan whereas Board membersand the Department representatives were specifically invited to ask questions of Ms. Puddicombe. [33] Having allowed Ms. Ryan, the investigator, to provide evidence as to the case against Ms. Puddicombe, and having specificallyinvited the Department representatives to ask questions of Ms.

Puddicombe, it was incumbent on the Board to clearly provide Ms.Puddicombe with an opportunity to question Ms. Ryan. I find that the failure of the Board to do so resulted in a breach of the high levelof procedural fairness that was owed in the circumstances. 3. An adverse finding without notice or opportunity to speak to the issue [34] In addition to upholding the grounds for disentitlement to benefits found by the investigator and the review committee, theBoard found an additional ground that had not been raised at either of the two previous levels. The Board found that the declaration byMs.

Puddicombe on her application for income support that the father of her children was “unknown” was not correct. It stated in itsdecision, “This declaration was not correct as the father of your children is known to you.” The Board found this to be contrary to section13 of the Act which provides that an applicant must first avail of all other financial resources as a condition of eligibility. [35] The issue of Ms. Puddicombe’s knowledge of her children’s father was not raised during the hearing nor was she questioned onthis issue. As this was not raised previously or at the hearing, Ms.

Puddicombe was deprived of an opportunity to address this issue and

offer any explanation she may have had to address the Board’s concern. Making this finding in the absence of notifying Ms. Puddicombe of the issue and allowing her to be heard on it was a further breach of the high standard of procedural fairness that was owed.

Summary and Disposition [ 36 ] Given the breach of procedural fairness, the appeal is allowed and the matter is referred back to the Board for a re-hearing. The parties did not make submissions on costs. Should either party wish to do so, they may make submissions in writing on or before October 31, 2019. _____________________________ Sandra R. Chaytor Justice