2015 MBCA 112, 2015 MBCA 112

Citation: Hashmi v Director, Employment and Income Date: 20151202 Assistance, 2015 MBCA 112 Docket: AI15-30-08486 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : NAILA HASHMI ) R. I. Histed ) for the Applicant (Appellant) Applicant ) ) A. J.

Ladyka - and - ) for the Respondent ) DIRECTOR, EMPLOYMENT AND ) Chambers motion heard: INCOME ASSISTANCE ) November 5, 2015 ) (Respondent) Respondent ) Decision pronounced: ) December 2, 2015 CAMERON JA [ 1 ] This is an application for leave to appeal an order of the Social Services Appeal Board (the Board) granting the applicant retroactive special care shelter income allowance for a period of 12 months.

The applicant contends that the Board should have made the order retroactive to the time she originally became entitled to income assistance, a period of approximately 14 and one- half years. [ 2 ] In December 2000, the applicant applied for income assistance from the Employment and Income Assistance Program of the Government of Manitoba (the Program). She was found to be eligible for income assistance as a single person unable to earn income because of a disability.

At the time, based on the information she provided and the fact that she was living with her family, she was awarded the maximum monthly payment of $252 as shelter assistance for persons paying room and board who do not require special care pursuant to the Assistance Regulation, Man Reg 404/88R (the Regulation),

Schedule B,

section 3. [ 3 ] In 2015, the applicant learned from a professional, unrelated to the Program, that she would be eligible for a higher amount of shelter assistance based on the amount of physical care that she required from her family. She successfully applied for an increase to $583 each month, the maximum available shelter assistance for persons paying room and board who require special care pursuant to

section 4 of

Schedule B of the Regulation . However, the Program denied her corresponding request for retroactive income assistance. [ 4 ] The applicant appealed the latter decision and was awarded 12 months’ retroactive income assistance by the Board at the maximum rate. In reaching its conclusion, the Board considered the wording of

section 4 of

Schedule B of the Regulation which states: 4. Shelter assistance for persons paying room and board who require special care Recipients of income assistance or general assistance whose rent covers food and shelter and who require special care are entitled to the following on account of shelter costs: (

a) for a single person — actual cost up to $583 each month [emphasis added]

[ 5 ] In determining that a period of 12 months for retroactive income assistance was fair and reasonable, the Board stated that, “the [Program] has not done their due diligence over a prolonged period of time, in ensuring that [the applicant]’s needs were being met”. It accepted the evidence of the applicant and her mother, that the applicant’s needs had been the same since the time that she applied for income assistance and that she was previously unaware that she was eligible for such a level of income assistance.

However, it found that the evidence provided at the hearing made it difficult to determine the “actual cost” that the applicant was being charged by her family for board and room. It stated: The regulation provides the maximum amount that the program will pay for shelter costs in a variety of circumstances, but each provision of the Regulation stipulates that the “actual cost” up to the legislated maximums will be paid. A person who is charged less than the legislated maximum would receive the actual amount they are required to pay, not the maximum amount allowed by Regulation.

It is fairly clear to the Board that [the applicant]’s parents did not set a Board and Room rate prior to [the applicant]’s application for assistance as the amount of $252 would be an unusual amount to be set for Board and Room outside the scope of the EIA guidelines.

If [the applicant]’s parents had completed the Rental Form indicating that the amount they charged their daughter was greater than the amount that the [Program] was paying, then a strong case could be made that the [Program] should have provided more than the basic amount of $252 a month. [ 6 ] Nevertheless, the Board repeated that it apportioned responsibility to the Program for not having met with and assessed the applicant much earlier than July 2015. [ 7 ] Based on the above, the Board decided that a retroactive payment was appropriate.

In determining the quantum of the payment, the Board stated: [The Regulation ] does not provide any guidance regarding paying retroactive benefits due to an error or oversight in the [Program]’s assessment of needs, therefore the Board has followed the guideline of similar programs such as British Columbia’s income assistance retroactive guidelines, and the federal CPP Disability benefits legislation, and determined that twelve months is a reasonable period for back payment. [ 8 ] The Board therefore ordered that the higher, special care rate be applied retroactively to 12 months prior to the applicant’s assessment.

It is from this aspect of the order that the applicant seeks leave to appeal. [ 9 ] The application for leave to appeal to this Court is governed by section 23(1) of The Social Services Appeal Board Act , CCSM c S167, which provides that an appeal may be taken only on a question of jurisdiction or a point of law and only with leave of this Court. Additionally, this Court has stated that the issue that is attempted to be raised on appeal must warrant the attention of the Court in that it will be applicable to other similar disputes. The final consideration is whether there is an arguable chance of success.

See Klippenstein v Director, Point Douglas , 2011 MBCA 15 at paras 2-3 . [ 10 ] The applicant has stated her intended ground of appeal as: The Social Services Appeal Board erred in jurisdiction in fettering their discretion on the basis of irrelevant statutory provisions contained in the Canada Pension Plan and British Columbia regulations. [ 11 ] She argues that the ground that she raises constitutes a question of law, reviewable on the standard of correctness.

She maintains that, while the Board did not expressly state that it was doing so, by applying the 12-month limit to the retroactive portion of her award, the Board effectively fettered its jurisdiction based on irrelevant legislation. She asserts that, rather than look to outside legislation, the Board should have looked to The Manitoba Assistance Act , CCSM c A150, for guidance. Specifically, in matters where a recipient of income assistance has been overpaid by the Program, section 20(1) of that Act allows the government to recover the full amount of the overpayment.

She argues that, the reverse having happened in this case, it is only fair that she should recover the full amount not paid to her. [ 12 ] The respondent accepts that the question of whether the Board fettered its discretion is a question of law. Based on this concession I will go no further in my analysis in this regard. [ 13 ] However, the respondent argues that there is no arguable case of substance.

Relying on Green v Houston Recruiting Services Ltd , 2011 MBCA 16 , 262 ManR (2d) 177 , it maintains that, when considering whether there is an arguable case of substance, the court may consider the standard of review that would be applicable to the issue and that, because the Board is interpreting or applying its home statute or regulation, the standard of review is reasonableness.

Finally, it argues that the Board was entitled to look to outside legislation for guidance and that there is nothing in the reasons of the Board to indicate that it considered itself bound by that legislation. [ 14 ] I agree that, where an administrative tribunal is interpreting or applying its home statute or regulation, the standard of review is reasonableness and that such a standard applies to the respondent (see Harder v Manitoba Public Insurance Corp et al , 2012 MBCA 101 , 284 ManR (2d) 254 ; and Murray v Director of Employment and Income Assistance (Man) , 2015 MBCA 66 , 319 ManR (2d) 219 ).

However, there has been argument made in other jurisdictions that the standard of review analysis articulated in Dunsmuir v NewBrunswick, 2008 SCC 9, [2008] 1 SCR 190, does not apply where the question involves the issue of fettering of discretion which,traditionally, has been an automatic ground for setting aside an administrative decision. See Maple Lodge Farms Ltd v Government ofCanada, (SCC), [1982] 2 SCR 2 at 6.

In Stemijon Investments Ltd v Canada (Attorney General), 2011 FCA 299, 425NR 341, the Federal Court of Appeal, while not in agreement as to the scope of the application of the reasonableness test, was unanimousin saying that a decision that is the product of a fettered discretion cannot be allowed to stand and must be per se unreasonable. See alsoDirector of Assured Income for the Severely Handicapped Program Delivery Services v Januario, 2013 ABQB 677, 574 AR 331. [15] As this is a leave application the matter need not be definitively decided and I will be circumspect.

In this case, I findthat the intended ground of appeal does not raise an arguable issue. In my view, in the absence of guidance within the legislation, theBoard was entitled to look to similar provincial and federal legislation in its determination of what amount of time would be reasonable inwhich to make the award retroactive to. This is not a novel concept. Courts often look to related legislation from other jurisdictions forguidance.

See Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis, 2014) at 424-30. [16] Regarding the fettering issue, there is nothing in the reasons of the Board that indicate that it considered itself bound bythe limits set in the provincial and federal legislation it referenced. To the contrary, the Board considered that, had the applicant’sparents filled out her rental agreement differently, she would have had a stronger case for retroactive entitlement.

Simply put, it foundthat the evidence provided at the Board hearing was lacking. [17] There being no evidence in the reasons of the Board to support the contentions of the applicant, she does not present anarguable case for appeal. That is, there is no reasonable prospect of success.

See Harder v Manitoba Public Insurance Corp et al, 2012MBCA 20 at paras 28-29, 275 ManR (2d) 298. [18] Regarding the issue of applicability to other disputes, I agree that the manner in which the Board determines retroactiverepayments to income assistance recipients, who have not been paid the amount of income assistance that they may have been entitled to,is a question that may be of public interest. However, such a wide issue is not the subject of this appeal.

In the end, the Board’s decisionturned on the quality of the evidence presented at the hearing. [19] For the above reasons, I would dismiss the application for leave to appeal. JA