2014 MBCA 110, 2014 MBCA 110

Citation: Murray v. Director, Employment and Income Date: 20141203 Assistance, Seven Oaks, 2014 MBCA 110 Docket: AI12-30-07738 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ASHLEY MURRAY ) B. J. Froese ) for the Applicant ) (Appellant) Applicant ) A. J. Ladyka , ) M. A. Bodner and ) D. A. Johnston - and - ) for the Respondent ) DIRECTOR, EMPLOYMENT AND ) Chambers motion heard: INCOME ASSISTANCE, SEVEN OAKS ) June 19, 2014 ) ) Decision pronounced: (Respondent) Respondent ) December 3, 2014 MacINNES J.A. [ 1 ] The applicant moves for leave to appeal the order of the Social Services Appeal Board (the Board).

The Board dismissed her appeal and confirmed the decision of the director of Employment and Income Assistance suspending the applicant’s income assistance.

Facts [ 2 ] In January 2011, the applicant, then a 21-year-old single parent of a young son, applied for and began to receive Employment and Income Assistance (EIA) benefits as a single parent. [ 3 ] On September 26, 2011, the applicant advised her EIA case coordinator that she and her son were going to move in with her boyfriend into his parents’ home. [ 4 ] Upon reporting her change in circumstances, the applicant was required to complete the Relationship Assessment Form (RAF) of the EIA department (the department).

She was told that she would have three months to determine if this living arrangement would work, after which, if she was still continuing to live with her boyfriend, she would be required to add her boyfriend to her file or her file would be closed. [ 5 ] In the RAF, the applicant described her relationship “with the adult with whom you are living” as “Boyfriend/Girlfriend” and stated “living with boyfriend’s parents temporarily until alternate accommodations are secured.” She also reported that she and her boyfriend were known as a couple to family, friends or relatives, but not to the broader community.

As well, she stated that there was no financial interdependence as between the two of them. [ 6 ] The applicant and her son moved into the boyfriend’s parents’ home on October 1, 2011. The applicant and her son lived in the basement of the home where there were two bedrooms and a bathroom. Her boyfriend lived in the upstairs of the home with his parents. The applicant had access to the entire home and shared the kitchen and laundry with her boyfriend and his family.

Her boyfriend enjoyed access to the basement to play video games and watch TV, and sometimes provided care for the applicant’s son. [ 7 ] The applicant had an informal room and board agreement with her boyfriend’s father. She was to pay $415 per month, but was not always required to pay the full amount. An informal bartering arrangement existed in that the applicant sometimes would buy groceries for the family, or tanning minutes for her boyfriend’s mother. The parents, in turn, considered the applicant and their son “boyfriend and girlfriend” and thought of her as a daughter.

The parents would sometimes help the applicant with her basic needs. [ 8 ] The applicant continued to receive EIA benefits as a single parent during the three-month period starting October 1, 2011. On December 28, 2011, the applicant met with her EIA case coordinator and confirmed that she and her son were still living in her boyfriend’s family’s home. She was told that the boyfriend would have to be added to her file or it would be closed. She refused to have her boyfriend added to her file. [ 9 ] The director then determined that the applicant and her boyfriend were in a common-law relationship pursuant to the

criteria set forth in the Manitoba EIA Administrative Manual ( http://www.gov.mb.ca/jec/eia/admin_manual /index.html ), s. 8, Assistance to Single Parents and Children, and, in particular, s. 8.1.4, Common-Law Unions (the Policy). As a result, her income assistance as a single parent was suspended. [ 10 ] In her decision, the director referred to s. 5(5) of The Employment Income Assistance Act , C.C.S.M., c. E98 (the EIA Act ) (what is now The Manitoba Assistance Act , C.C.S.M, c. A150), but based her decision on the Policy and the criteria stated therein in determining that the applicant was living in a common-law relationship. She wrote:

b) Rationale for Decision: The existance [ sic ] of a common law relationship is based on meeting two of three factors: shared residency and family composition; family/social interdependance [ sic ] and financial interdependance [ sic ]. A three month shared residency is allowed prior to the shared residency factor being enforced in a new [relationship]. [The applicant] meets the shared residency factor because she has lived with her boyfriend for three months and she meets the family/social interdependence factor because she identifies her relationship as being boyfriend/girlfriend.

Department procedure is that assessments are made based on financial and/or familial/social factors, not sleeping arrangements. According to policy when an applicant has a common law partner eligibility for income support must be assessed together. [ 11 ] The applicant appealed the decision to the Board in accordance with s. 9 of the EIA Act .

The Board heard the applicant’s appeal, and on January 20, 2012, issued its order and reasons for decision confirming the director’s decision. [ 12 ] In its reasons, the Board acknowledged the applicant’s argument that, though residing in the same household, she was not in a common-law relationship and that she and her boyfriend confirmed that there was no conjugal relationship. Ultimately, the Board wrote: After carefully considering all the written and verbal information presented at the hearing, the Board agrees with the Department’s determination that [the applicant] is in a common-law union.

The RAF identifies them as boyfriend and girlfriend and as a couple. [The applicant], her boyfriend and his father all confirmed at the hearing that they are boyfriend and girlfriend. They continue to reside in the same household. The Board agrees that the Department has met two of the three criteria to confirm a common-law relationship. Further, the Board agrees that the informal lease agreement is not consistent with a landlord/tenant relationship, and in fact [the applicant] is viewed by the family as a daughter and a family member.

That informality lends itself to further support family and social interdependence. The Board did not see any evidence that [the applicant] is actively looking for a new residence that would justify her statements that it was a temporary situation. The Board did not put any weight on the conjugal argument as they did not consider this a defining factor of a common-law relationship in this case. The Board determined that [the applicant]’s file has been appropriately administered in accordance with the legislation and is confirming the decision of the Director.

As such, [the applicant]’s appeal is dismissed. [ 13 ] It is from the Board’s decision that the applicant moves for leave to appeal. The Statutory Scheme [ 14 ] The provisions of the statutory scheme relevant to this proceeding are as follows: 1) The EIA Act :

Definitions 1 In this Act, . . . . . “appeal board” means the Social Services Appeal Board under The Social Services Appeal Board Act ; . . . . . “director” means the person designated as Director of Employment and Income Assistance under

section 2.1;

. . . . . Director 2.1(1) The minister must designate a person as Director of Employment and Income Assistance. . . . . . Income assistance 5(1) The director shall provide income assistance, in accordance with this Act and the regulations, to or in respect of a person who, in the opinion of the director is a person …. (

c) who is a parent with a dependant child or children and .... (iii) is not married ... . . . . . Common-law relationships 5(5) Where two persons who are not legally married to each other are living together under circumstances that indicate to the director that they are cohabiting in a conjugal relationship, they shall, for the purposes of this Act and the regulations, be treated in the same manner as two persons who are legally married, and any application by either or both of them for income assistance or general assistance shall be dealt with in every respect in that manner. . . . . .

Regulations 19(1) For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make such regulations and orders as are ancillary thereto and are not inconsistent therewith; and every regulation or order made under, and in accordance with the authority granted by, this

section has the force of law; and, without restricting the generality of the foregoing, the Lieutenant Governor in Council may make regulations and orders, …. (

q) respecting any matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Act. . . . . .

2) Manitoba, Employment and Income Assistance Regulation , Man. Reg. 404/88R (Reg. 404/88R):

Definitions 1(1) In this regulation, . . . . . “common-law partner” means a member of an applicant’s or recipient’s household who lives with the applicant or recipient under circumstances that indicate to the director that they are cohabiting in a conjugal relationship; . . . . . 3) The Social Services Appeal Board Act , C.C.S.M., c. S167 (the SSAB Act ):

Definitions 1 In this Act, “appeal board” means the Social Services Appeal Board referred to in

section 3; “designated Act” means (

c) The Employment and Income Assistance Act , . . . . . Purpose 2 The purpose of this Act is to give Manitobans a fair, impartial and informal appeal process from decisions relating to various social services and programs. . . . . . Regulations 25 The Lieutenant Governor in Council may make regulations …. (

b) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent of this Act. . . . . .

4) Social Services Appeal Board Regulation , Man. Reg. 26/2002 (Reg. 26/2002): Order 2 In making an order under

section 20 or 22 of the Act, the appeal board must make its decision in accordance with (

a) the designated Act and the regulations under the designated Act; and (

b) any guidelines or policies established for the purposes of the designated Act; in the same manner as the designated officer must. 5) The Policy:

Section 8 – Assistance To Single Parents and Children 8.1.4. COMMON-LAW UNIONS Legislation Under section 5(5) of The Employment and Income Assistance Act , common-law partners are considered to be legally married for the purposes of the EIA program.

Section 5(5) states: “Where two persons who are not legally married to each other are living together under circumstances that indicate to the director that they are cohabiting in a conjugal relationship, they shall, for the purposes of this Act and the regulations, be treated in the same manner as two persons who are legally married, and any application by either or both of them for income assistance or general assistance shall be dealt with in every respect in that manner.” Policy ....

An applicant/participant is eligible to receive income support as a single person or single parent unless he/she lives with another adult who is determined to be his/her spouse or common-law partner. When an applicant/participant has a spouse or common-law partner, they will be assessed for eligibility for income support together. The existence of a common-law relationship is based on : a. Shared residency and family composition .

All married couples, self-declared common-law partners and adults that are the parents of a child together or have maintenance obligations in place for each other or the children in the household are considered spouses or common-law partners. For all other non-familial, cohabiting relationships the program will apply the other factors of common-law status once a cumulative three months of shared residency in a six-month timeframe have passed. plus one of the following two factors:

b. Family/social interdependence – the degree to which the two adults who are living together interrelate with family, friends and community as a couple rather than as two people sharing a residence. c. Financial interdependence – the degree to which the two adults who are living together support each other financially. Applicants/participants must declare any cohabitation or changes to cohabitation when they occur.

The Law Respecting Leave to Appeal [ 15 ] Section 23(1) of the SSAB Act provides for an appeal to this court from an order of the Board on any question involving the Board’s jurisdiction or on a point of law, but only with leave. [ 16 ] The decision whether to grant leave is discretionary.

Leave may be granted only on a question of law or jurisdiction if it is of sufficient importance to warrant further appeal and if the proposed appeal has a reasonable chance of success. [ 17 ] The court may also consider the overarching concern for the interests of justice; specifically whether denial of leave could result in an injustice. If the refusal to grant leave might result in an injustice, leave may be granted (see Harder v.

Manitoba Public Insurance Corp. et al. , 2012 MBCA 20 at para. 13 , 275 Man.R. (2d) 298 ). [ 18 ] The applicant seeks leave to appeal in respect of the following questions: 1) Did the Board err in law in its

interpretation of s. 5(5) of the EIA Act , in particular, the meaning of “cohabiting in a conjugal relationship”? 2) Did the Board err in improperly fettering its discretion when it relied on s. 8.1.4 of the Policy to determine whether the applicant was cohabiting in a conjugal relationship? Standard of Review [ 19 ] The standard of review in respect of the grounds of appeal is not to be determined on a leave application. Rather, it is to be determined by a full panel of this court at the hearing of the appeal, if leave is granted.

Nonetheless, the standard of review may be considered on the leave application to the extent that it is relevant in determining whether the proposed grounds of appeal have arguable merit. [ 20 ] The applicant argues that the proposed grounds of appeal raise questions of statutory

interpretation and the validity of a regulation that narrows the boundaries of the Board’s decision-making authority. She asserts that these are points of both law and jurisdiction for which the standard of review is that of correctness. [ 21 ] Having said that, the applicant acknowledges that, in light of the decision of the Supreme Court of Canada in Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 , the standard of review with respect to the first ground might be that of reasonableness rather than correctness. [ 22 ] However, the applicant argues that, for questions of general law, the standard of review remains that of correctness. She asserts that the meaning of the phrase “cohabiting in a conjugal relationship” found in ground one is a question of general law, not one that is specific to the EIA Act or the EIA program thereunder.

She says that, while the Board may have expertise in deciding appeals relating to income or general assistance, a question of general law is beyond the Board’s expertise and falls squarely within the expertise of this court. [ 23 ] The respondent disagrees with the applicant’s position on the standard of review respecting ground one. It asserts that the issue regarding the Board’s

interpretation of s. 5(5) of the EIA Act would attract the standard of reasonableness. [ 24 ] In its motion brief, the respondent refers to and relies upon Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , where Bastarache and LeBel JJ. stated (at para. 54): …. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity …. and upon the statement of Fish J. in Smith v.

Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160 (at para. 28 ): In this case, the Committee was interpreting its home statute. Under Dunsmuir , this will usually attract a reasonableness standard of review ( ibid . at para. 54). And nothing in these reasons or in Celgene Corp. v. Canada (Attorney General) , 2011 SCC 1 , [2011] 1 S.C.R.

3 , recently decided, represents a departure from Dunsmuir. [ 25 ] In oral argument, the respondent refers to and relies upon Alberta Teachers’ Association . Both of the foregoing statements were confirmed in that case. As well, after so stating, Rothstein J. continued (at para. 30): …. This principle applies unless the

interpretation of the home statute falls into one of the categories of questions to which the correctness standard continues to apply, i.e., “constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator’s expertise, ... ‘[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals’ [and] true questions of jurisdiction or vires ” ( Canada (Canadian Human Rights Commission) v.

Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 , at para. 18 , per LeBel and Cromwell JJ., citing Dunsmuir , at paras. 58, 60-61 ). [ 26 ] Rothstein J. went on to state that the category of true questions of jurisdiction is extremely narrow, and that since Dunsmuir , the Supreme Court of Canada had not identified a single true question of jurisdiction. He wrote (at para. 34): The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute.

In one sense, anything a tribunal does that involves the

interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir , this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review.

However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory

interpretation subject to deference on judicial review. [ 27 ] The respondent asserts that, in this case, the Board was interpreting a provision of the EIA Act , which, although not the Board’s home statute, is a statute closely connected to the Board’s function. [ 28 ] Under the EIA Act , “appeal board” is defined as the Social Services Appeal Board under the SSAB Act , and s. 9(3) of the EIA Act provides that an applicant or recipient has the right of appeal to the appeal board where he/she feels his/her treatment was unfair for a number of stipulated reasons. In turn, s. 8 (

a) of the SSAB Act provides that the appeal board has the responsibility to hear and decide appeals under designated Acts and the term “designated Act” under the SSAB Act includes the EIA Act . [ 29 ] Thus, the respondent argues that the Board has expertise in interpreting and applying the EIA Act in appeals that come before it and that, accordingly, its

interpretation of the EIA Act should attract the standard of reasonableness. [ 30 ] As regards the issue whether the Board fettered its discretion when it relied on the Policy to determine whether the applicant was cohabiting in a conjugal relationship, both the applicant and the respondent agree that this issue would attract the standard of correctness. [ 31 ] In my opinion, it is likely that if leave were granted, the court, in deciding the appeal, would consider the first proposed ground pursuant to the standard of reasonableness and I will, therefore, consider this application for leave on that standard respecting ground one.

As for the second proposed ground, since the parties are in agreement that the applicable standard of review is that of correctness, I will consider the leave application in respect of proposed ground two to that standard. [ 32 ] I turn then to consider the proposed grounds upon which the applicant seeks leave to appeal: Ground One: Did the Board err in law in its

interpretation of s. 5(5) of the EIA Act , in particular, the meaning of “cohabiting in a conjugal relationship”? Argument [ 33 ] The applicant asserts that she was not cohabiting in a conjugal relationship and, thus, the Board erred in it decision. [ 34 ] She asserts that the Policy is overly broad when compared to s. 5(5) of the EIA Act , such that it is inconsistent with the purpose of that subsection, which is essentially to capture only marriage-like relationships when requiring that more than the applicant’s financial circumstances and needs are necessary to determine the level of income assistance to be provided. [ 35 ] She relies upon the fundamental principle of statutory

interpretation; namely, that the words of

an Act must be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of parliament. [ 36 ] As well, she relies upon s. 6 of The

Interpretation Act , C.C.S.M., c. I80, that the legislation be interpreted as remedial and be given fair, large and liberal

interpretation to best ensure attainment of its objects. [ 37 ] She argues that the EIA Act , being benefits-conferring legislation, necessitates application of the “favour the claimant”

principle, that is, the legislation is to be liberally interpreted to promote its purpose in ensuring receipt of intended benefits. [ 38 ] The applicant says that the phrase “cohabiting in a conjugal relationship” has received considerable judicial attention and is a relationship characterized by duration, mutual commitment and meaningful interdependence.

She argues that the Board erred by relying upon the Policy, which casts a far wider net for exclusion of eligibility for benefits as a single person than s. 5(5) of the EIA Act permits. [ 39 ] The respondent argues that ground one of the applicant’s motion for leave to appeal has no reasonable prospect of success, and further, that it raises a question of mixed fact and law, and not a question of law alone. [ 40 ] It asserts that it is not clear from the Board’s decision that its analysis was constrained by the Policy, but that even if it were, it was reasonable for the Board to consider the Policy when interpreting and applying s. 5(5) of the EIA Act . [ 41 ] It argues that s. 5(5) of the EIA Act does not require direct proof that two persons are cohabiting in a conjugal relationship in order to be dealt with in the same manner as two persons who are married.

Rather, the

section requires that the two persons be living together “under circumstances that indicate to the director that they are cohabiting in a conjugal relationship” and that the application of this test requires the Board to consider which circumstances so indicate to the director. [ 42 ] It asserts that the Policy describes the circumstances that indicate to the director that two persons are cohabiting in a conjugal relationship and, thus, is reasonable and appropriate for the Board to consider when interpreting s. 5(5) of the EIA Act .

It disagrees that the Policy is flawed because the criteria do not necessarily require direct evidence of a conjugal relationship and says that there are two policy considerations which support the approach taken in the Policy. [ 43 ] Firstly, the criteria of family/social interdependence and financial interdependence as identified in the Policy are closely aligned with the object and purpose of s. 5(5) of the EIA Act . Income assistance, the respondent asserts, is intended to be a needs-based program of last resort.

For that reason, individuals who are being financially supported by a spouse or common-law partner are required to apply together as a couple, rather than as single persons, for income assistance. Thus, both partners’ financial resources are considered in assessing both eligibility for income assistance and the amount of income assistance to be paid, if eligible. [ 44 ] These two criteria in the Policy, asserts the respondent, are therefore directly relevant to the object and purpose of s. 5(5) .

In particular, the degree to which two cohabiting adults are financially interdependent is directly relevant to the type of needs- based analysis contemplated by the EIA Act . [ 45 ] Secondly, the respondent asserts that if s. 5(5) required direct evidence of a conjugal relationship, this would require the director and the Board to engage in a potentially invasive inquiry into the personal relationships of income-assistance recipients whose marital status is in doubt. Rather, the

section contemplates a less invasive approach which allows an inference to be drawn from circumstantial evidence. Thus, says the respondent, it is reasonable for the Board to consider the Policy when interpreting the requirements of s. 5(5) of the EIA Act . [ 46 ] Accordingly, the respondent submits that there is no reasonable prospect of success on the issue whether the Board erred in its

interpretation of s. 5(5) of the EIA Act . [ 47 ] The respondent also argues that the proposed ground for appeal raises a question of mixed fact and law. It says that the statutory test outlined in s. 5(5) requires that the director consider the circumstances of two persons living together and determine whether such circumstances indicate that they are cohabiting in a conjugal relationship given that this is the statutory test.

The respondent says that the Board properly focussed its analysis on whether such circumstances existed and that the applicant is effectively seeking to have this court reweigh the evidence that was before the Board in order to draw a different conclusion with respect to the application of the statutory test to the facts. This, says the respondent, raises a question of mixed fact and law rather than a pure question of law and accordingly, leave may not be granted.

Ground Two: Did the Board err in improperly fettering its discretion when it relied on s. 8.1.4 of the Policy to determine whether the applicant was cohabiting in a conjugal relationship? [ 48 ] The applicant argues that it is clear from the Board’s decision that it simply followed the Policy when deciding that she was in a common-law relationship. [ 49 ] She says that, in so doing, the Board improperly fettered its discretion and narrowed its decision-making authority.

She submits that the Board should not have bound its hands with the Policy, but should have decided the meaning of “cohabiting in a conjugal relationship” with reference to settled jurisprudence which has set forth criteria to be considered in reaching that determination. [ 50 ] As well, the applicant argues that s. 2 of Reg. 26/2002 is ultra vires because it exceeds the regulation-making authority under the SSAB Act and, alternatively, even if s. 2 is a lawful exercise of delegated authority, it is being misinterpreted by the Board to mean that the Board is bound in its decisions by the Policy. [ 51 ] As to the ultra vires argument, the applicant asserts that, in exercising regulation-making power, the Lieutenant Governor in Council must act within the boundaries established by the legislature in the specific Act.

She says that a regulation is invalid if it is inconsistent with the purpose and intent of the enabling statute. [ 52 ] The applicant submits that the SSAB Act creates a specialized administrative tribunal with considerable discretion over its own process when hearing appeals. [ 53 ] She argues that the purpose of the SSAB Act as described in s. 2 is to provide Manitobans a fair, impartial and informal appeal process from decisions relating to various social services and programs, and that only regulations necessary or advisable to achieve that purpose are permitted (see s. 25 (

b) of the SSAB Act ). But, says the applicant, s. 2 of Reg. 26/2002 requires the Board to

make its decisions according to policies and guidelines established by the government department in question. This, she submits, is not necessary or advisable to carry out the purpose and intent of the SSAB Act , at least in the context of the EIA program. [ 54 ] She asserts there is no need to impose department policies and guidelines on the Board and curtail its decision-making authority.

As well, she says that the regulation unnecessarily interferes with the Board’s statutory obligation to provide the applicant with a fair and impartial appeal process and that if it is not allowed to make decisions that deviate from the policy, it is at risk of being perceived as an administrative tribunal that is not independent from the department. [ 55 ] As well, the applicant argues that narrowing the Board’s decision-making authority is a material change to its powers and that such a change ought not to be done by regulation, but by amendment to the statute. [ 56 ] Alternatively, the applicant argues that if s. 2 of Reg. 26/2002 is a lawful exercise of delegated authority, there remain concerns as to how the regulation is being interpreted.

She says that by relying solely on the Policy to decide whether the applicant was in a common-law relationship, it appears that the Board considered itself obligated to make its decision according to the Policy when the Policy, in fact, is not law, as it does not have the same status as legislation or regulation. [ 57 ] The applicant submits that whether policies and guidelines have the force of law or are merely intended to guide department staff depends on whether the power to give them the force of law is conferred by the legislation.

She says, therefore, that the only way the Policy would be binding on the Board under s. 2 of Reg. 26/2002 would be if the EIA Act conferred the power to make policies that have the force of law. However, there is no such provision in the EIA Act permitting the creation of policies that are binding in law. In fact, the EIA Act only requires the director to follow the Act and the regulations passed pursuant to it. There is no requirement in the EIA Act or its regulation for the director to follow the Policy. [ 58 ] The applicant refers to and relies upon the comment of Jewers J. in Manitoba v.

Barkman , 2007 MBQB 54 , 213 Man.R. (2d) 273, aff’d at 2008 MBCA 14 , 225 Man.R. (2d) 166. The applicant says that, in that case, the court considered s. 13 of the Policy regarding the sponsorship of immigrants who receive income or general assistance. Jewers J. stated (at para. 22): This policy is not set out in the Act or the Regulations and does not have the force of law. It is merely an internal memorandum for the guidance of those departmental officials responsible for administering social assistance. [ 59 ] The respondent argues that s. 2(

b) of Reg 26/2002 is intra vires , and, therefore, the Board was bound by the Policy.

Alternatively, it says that, even if the Board was not bound, there is no indication in its reasons for decision that its conclusions were constrained by the Policy and they do not suggest that the Board would have decided the case differently in the absence of the Policy. [ 60 ] The respondent argues that, while the reasons for decision make reference to the three criteria that the director had applied to determine whether the applicant was cohabiting in a conjugal relationship, the Board’s analysis of the issue was wide ranging.

It asserts that the Board’s analysis considered all of the evidence before it and came to its own conclusion as to whether the test under s. 5(5) of the EIA Act had been met. [ 61 ] The respondent refers to the family/social-interdependence factor contained in the Policy as well as the financial interdependence factor and argues that both factors are of an open-ended nature and sufficiently flexible for the Board to engage in a full exploration of the facts and circumstances of each case.

It argues that the Board did so and that the Policy did not constrain the Board from considering all of the issues placed before it. Thus, the respondent submits that this is not a proper case for consideration of whether the Board fettered its discretion by relying on the Policy. [ 62 ] As to whether s. 2(

b) of Reg. 26/2002 is ultra vires , the respondent concedes that this issue raises a question of law and, as well, that the question is of general importance. [ 63 ] However, it argues that the applicant has failed to establish an arguable case because Reg. 26/2002 fits within the regulation-making power in the SSAB Act and relates to at least one of the stated purposes of the Act, as enunciated in s. 2. [ 64 ] The respondent refers to the regulation-making power in the SSAB Act ( s. 25 ) and says that the language used in s. 25 (

b) is broad and subjective. It does not require that a regulation be objectively “necessary or advisable to carry out the intent” of the Act; rather, it requires only that the Lieutenant Governor in Council “considers” the regulation to be necessary or advisable to carry out that intent. [ 65 ] The respondent says that one of the stated purposes of the SSAB Act is to provide a fair process for appeals to the Board.

Section 2(

b) of Reg. 26/2002 ensures that the same policies apply to those who appeal decisions to the Board in determination of their case, as to those who do not appeal a decision and that it would be unfair if people who appeal to the Board could obtain an outcome based upon different considerations as compared with those who do not appeal.

As well, the respondent says if the Board did not follow the guidelines or policies of the designated officer, the Board could interpret the enabling legislation more broadly or narrowly than the guidelines or policies and that such inconsistencies could lead to unfairness in appeals before the Board. [ 66 ] The respondent submits that regulations made under a broad and subjective regulation-making power are to be accorded significant deference by the courts. [ 67 ] The respondent argues that the court must consider objectively whether the regulation could relate to one of the stated objects or purposes of the Act and says that, in this case, the regulation is intra vires because the Lieutenant Governor in Council might well have concluded that s. 2(

b) would fulfill the SSAB Act ’s stated goal of having appeals be fair. If that minimum requirement is met then, argues the respondent, Reg. 26/2002 is intra vires .

[68] It asserts that nothing in the applicant’s materials raises an arguable case that Reg. 26/2002 does not relate to fairnessand, accordingly, there is no reasonable prospect of success, and leave to appeal on this ground should be denied.

Analysis [69] Having set forth the arguments of the parties in respect of both grounds of the applicant’s motion for leave, I propose todeal with both together as, in my opinion, they are, in essence, inextricably related. [70] As will be seen, I will grant the applicant leave to appeal and must, therefore, be circumspect in my comments whichfollow, as the ultimate determination of this case is not mine, but that of a full panel of this court. [71] As is apparent from the EIA Act and Reg. 404/88R, the applicant was entitled to receive, and did receive, EIA benefitspursuant to s. 5(1)(c)(iii) of the EIA Act. [72] This required disclosure only of her financial circumstances and needs as a single parent with a dependent child. [73] This could (and did) change when the director determined that her status changed from that of a single parent to that of acommon-law partner.

Section 5(5) of the EIA Act provides: Common-law relationships 5(5) Where two persons who are not legally married to each other are living together under circumstances that indicate to the directorthat they are cohabiting in a conjugal relationship, they shall, for the purposes of this Act and the regulations, be treated in the samemanner as two persons who are legally married, and any application by either or both of them for income assistance or general assistanceshall be dealt with in every respect in that manner. [74] As well, Reg. 404/88R defines “common-law partner” as “a member of an applicant’s or recipient’s household wholives with the applicant or recipient under circumstances that indicate to the director that they are cohabiting in a conjugal relationship.” [75] The essence of both provisions appears to be that the applicant and another person are living together “undercircumstances that indicate to the director that they are cohabiting in a conjugal relationship.” The term “conjugal relationship” is notdefined under either the EIA Act or Reg. 404/88R.

However, it is a term well known to the law. In Siev v. Canada (Minister ofCitizenship and Immigration), 2005 FC 736 (QL), Rouleau J. wrote (at para. 15): The guide OP 2 - Processing Members of the Family Class sets out the tests laid down by the Supreme Court in M. v.

H., (SCC), [1999] 2 S.C.R. 3 for determining whether two persons are actually living in a conjugal relationship: - shared shelter (e.g. sleeping arrangements); - sexual and personal behaviour (e.g. fidelity, commitment, feelings towards each other); - services (e.g. conduct and habit with respect to the sharing of household chores) - social activities (e.g. their attitude and conduct as a couple in the community and with their families); - economic support (e.g. financial arrangements, ownership of property); - children (e.g. attitude and conduct concerning children) - the societal perception of the two as a couple.

From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal relationship is one of some permanence,where individuals are interdependent -- financially, socially, emotionally, and physically -- where they share household and relatedresponsibilities, and where they have made a serious commitment to one another.

Based on these factors, the following characteristics should be present to some degree in all conjugal relationships, married and unmarried: - mutual commitment to a shared life; - exclusive -- cannot be in more than one conjugal relationship at a time; - intimate -- commitment to sexual exclusivity; - interdependent -- physically, emotionally, financially, socially; - permanent -- long-term, genuine and continuing relationship; - present themselves as a couple; (Point 5.25 in the Guide) [ 76 ] It is trite law that statutes are paramount over regulations.

Thus, determining whether the applicant is in a common-law relationship requires a determination whether the circumstances under which the applicant is living with another indicate that they are cohabiting in a conjugal relationship. [ 77 ] In this case, s. 19(1) of the EIA Act authorizes the Lieutenant Governor in Council to make regulations and orders as are ancillary to, and not inconsistent with, the EIA Act .

Neither it, nor Reg. 404/88R, provide any authority for the enactment of policies. [ 78 ] That is not to say that a policy cannot be implemented or used as a guide in the administration of the Act, but unless authorized by

an Act, or where appropriate, by a regulation, a policy does not have the force of law.

Rather, as Jewers J. stated in Barkman (at para. 22): “It is merely an internal memorandum for the guidance of those departmental officials responsible for administering social assistance.” And even if authorized by Act or regulation, the Policy cannot override the Act itself. [ 79 ] In this case, the Policy would appear to establish criteria for the determination of common-law status which broadens the scope of that status beyond the essence of the criterion used in the EIA Act and Reg. 404/88R; namely, “cohabiting in a conjugal relationship.” In so doing, the Policy restricts the applicant from eligibility for EIA benefits based upon her own financial circumstances and needs. [ 80 ] The respondent has advanced reasons for the Policy and the rationale for following it, rather than discerning the existence of cohabitation in a conjugal relationship.

That is as may be. However, the legislature has chosen the language in s. 5(5) of the EIA Act and the Lieutenant Governor in Council has confirmed it in Reg. 404/88R. [ 81 ] Furthermore, in my view, ground one does not raise a question of mixed fact and law.

Rather, it raises a question of law; namely, whether the correct test was applied to the facts. [ 82 ] In my view, ground one of the motion for leave raises a question of law which is of sufficient importance to warrant appeal, and which has a reasonable chance of success. [ 83 ] As regards ground two of the motion for leave, I see no merit in the argument that s. 2 of Reg. 26/2002 is ultra vires per se.

Rather, it appears consistent with the purpose of the SSAB Act ; namely, to ensure a fair appeal process from decisions made in respect of various social services and programs. [ 84 ] In my opinion, it does not mean that the Board is bound to any particular decision, but only that it circumscribes the Board as to what it may consider in ultimately reaching its decision. It is similar to that which McLachlin C.J. and Bastarache J. wrote in Bell Canada v. Canadian Telephone Employees Association , 2003 SCC 36 , [2003] 1 S.C.R. 884 (at para. 35 ): ….

If the guidelines issued by the Commission are a form of law, then the Tribunal is bound to apply them, and it is no more accurate to say that they “fetter” the Tribunal than it is to suggest that the common law “fetters” ordinary courts because it prevents them from deciding the cases before them in any way they please.

[ 85 ] In short, it establishes consistent boundaries or parameters in which the Board’s decisions are to be made.

It provides transparency and consistency for the process by ensuring for all that the same criteria will be considered in deciding an appeal, that the criteria will be consistent with those considered by the director, and that the Board will not be entitled to go on a frolic of its own in deciding any appeal. [ 86 ] In my opinion, however, that does not decide the issue in this motion. [ 87 ] It does appear from the Board’s decision that the basis for its decision was compliance with the Policy, and the criteria set forth therein, without regard for how the criteria squared with the fundamental criteria set forth in the EIA Act ; namely, cohabiting in a conjugal relationship.

The issue that arises here, as I see it, is whether it was open to the Board to rely upon the Policy, given that the Policy was not approved by the designated Act, i.e., the EIA Act (or Reg. 404/88R). [ 88 ] Accordingly, I would grant the applicant’s motion for leave to appeal on the following questions: 1) Did the Board err in law in its

interpretation of s. 5(5) of the EIA Act , in particular, the meaning of “cohabiting in a conjugal relationship”? 2) Did the Board err in improperly fettering its discretion when it relied on s. 8.1.4 of the Policy to determine whether the applicant was cohabiting in a conjugal relationship? J.A.