Murray v. Director of Employment and Income Date:, 2015 MBCA 66

Citation: Murray v. Director of Employment and Income Date: 20150630 Assistance (Man.), 2015 MBCA 66 Docket: AI12-30-07738 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN : ASHLEY MURRAY ) A. E. M. Fenske and ) M. A. Menzies ) for the Appellant (Appellant) Appellant ) ) A. J. Ladyka and - and - ) D. A.

Johnston ) for the Respondent DIRECTOR, EMPLOYMENT ) AND INCOME ASSISTANCE, ) Appeal heard and SEVEN OAKS ) Decision pronounced: ) June 10, 2015 ) (Respondent) Respondent ) Written reasons: ) June 30, 2015 BEARD J.A. (for the Court): I. THE ISSUES [ 1 ] This is an appeal under subs. 23(1) of The Social Services Appeal Board Act , C.C.S.M., c. S167 (the SSAB Act ), from a decision of the Social Services Appeal Board (the board).

The board upheld the decision of the Director of Employment and Income Assistance (the director) to suspend the appellant’s income assistance pending a further application to include the disclosure of her partner’s income. The appellant, Ms Murray, has appealed that decision on the basis that the suspension was improper because she and her boyfriend were not living in a conjugal relationship pursuant to subs. 5(5) of The Employment and Income Assistance Act , C.C.S.M., c. E98 (the EIA Act ) (now The Manitoba Assistance Act , C.C.S.M., c.

A150), and, therefore, subs. 5(5) did not apply to her. [ 2 ] The right of appeal under subs. 23(1) of the SSAB Act is limited to questions of jurisdiction or a point of law, and then only with leave from a judge of the Court of Appeal. Leave was granted on December 3, 2014 ( 2014 MBCA 110 ), on the following two questions of law (at para. 18): 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 [Ms Murray] was cohabiting in a conjugal relationship? [ 3 ] On appeal, this court raised two issues with the parties: (

i) was the appeal moot, given that Ms Murray was employed and no longer receiving income assistance at the time of the appeal; and (ii) should the court be deciding these issues, given that they had not been raised before either the director or the board.

II. THE FACTS [4] Ms Murray is the single mother of a young child. In January 2011, she began receiving income assistance to supportherself and her son. In September 2011, she advised her income assistance case worker that she was moving into a living arrangementwith her boyfriend and his parents on a temporary basis.

She was advised that she could live with her boyfriend for three months andcontinue to receive income assistance as a single parent, after which time they would have to apply as a couple. [5] After the three months expired, Ms Murray took the position that her relationship was that of boyfriend and girlfriendliving in the same residence, but her boyfriend had his own bedroom and they were not in a common-law relationship.

The directorfound that “[d]epartment procedure is that assessments are made based on financial and/or familial/social factors, not sleepingarrangements.” Ms Murray refused to reapply for benefits as a couple, so her income assistance was suspended. Ms Murray thenappealed the suspension to the board. [6] Ms Murray appeared before the board with an advocate who was not a lawyer. Her position was the same, being that,although she resided in the same house as her boyfriend, she and her boyfriend were not sharing a bedroom and they were not in aconjugal relationship.

The board agreed with the director’s decision, stating that “[t]he Board did not put any weight on the conjugalargument as they did not consider this a defining factor of a common-law relationship in this case.” [7] At the time of the appeal hearing in this court, Ms Murray was employed, she had obtained another residence, and shehad not been receiving any income assistance for a significant period of time. III. DECISION (

i) Mootness [8] Ms Murray acknowledged that the appeal is moot, in the sense that she is no longer receiving income assistance, so thatthere is no longer a live controversy between her and the director. She argues that, applying the principles in Borowski v. Canada(Attorney General), (SCC), [1989] 1 S.C.R. 342, this court should exercise its discretion and hear the appeal even if itis moot on the basis that the facts underlying the appeal are such that the issue is recurring and always likely to be of brief duration.

Shepoints out that, when a person’s income assistance is suspended or terminated, he or she has to make some alternate living arrangementsand is unlikely to remain in need of support by the time that the matter reaches the court of appeal, as this is usually months, or evenyears, later. [9] We are of the view that this position has some merit, but, given our decision on hearing new issues on appeal, it is notnecessary to finally decide whether we should exercise our discretion to hear this appeal notwithstanding that it is moot. (ii) No Reasons to Review [10] Counsel at the appeal were not involved in or present at the hearings before either the director or the board, so they couldnot say whether either of the two issues for which leave to appeal has been granted were raised at either of those earlier hearings.

Counsel did indicate that Ms Murray appeared with an advocate who was not a lawyer. Further, there is no reference to either of theseissues in the decisions of the director or the board. Given their importance, it seems highly unlikely that they were raised and then noteven mentioned in the board’s reasons. Thus, we are of the view that, in all probability, they were not raised. [11] In Alberta (Information and Privacy Commissioner) v.

Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654(A.T.A.), Rothstein J., for the majority, stated that, if the administrative tribunal gave no reasons on a critical issue but the reviewing courtfinds that it made an implicit decision on that issue, the reviewing court has an obligation to attempt to determine the reasonableness ofthe decision based on the available information.

This could include the evidence before the administrative tribunal, the transcript of theproceedings, prior reasons on that point given by the administrative tribunal, the nature of the questions at issue, the reasons in thismatter, if any, that were given and the outcome. (See A.T.A. at paras. 52-53; and Manitoba v.

Russell Inns Ltd. et al., 2013 MBCA 46 atparas. 84-89, 291 Man.R. (2d) 244.) The application of the reasonableness standard in A.T.A. was based on the premise that theadministrative tribunal had made an implicit decision on the question at issue, notwithstanding that it gave no reasons (see paras. 50-51). [12] Rothstein J. did caution as follows (at para. 55): …. This, of course, assumes that the Court has thought it appropriate in the particular circumstances to allow the issue to be raisedfor the first time on judicial review.

Care must be taken not to give parties an opportunity for a second hearing before a tribunal as aresult of their failure to raise at the first hearing all of the issues they ought to have raised. [13] The two issues that were referred for appeal in this case were questions of the board’s

interpretation of subs. 5(5) of theEIA Act and the legal meaning of “cohabiting in a conjugal relationship” contained therein, and whether the board improperly relied on s.8.1.4 of the Manitoba Employment and Income Assistance Administrative Manual (seeonline: <http://www.gov.mb.ca/jec/eia/admin_manual/index.html>) (the policy) in determining whether Ms Murray was living in aconjugal relationship. [14] These two issues raise complex questions of law regarding the legality of the criteria applied by the director and the boardto determine eligibility for income assistance.

They are far removed from the arguments put forward by Ms Murray before the directorand the board, being solely the determination of whether her particular circumstances met the criteria. Given that there was no challengeto the legality of criteria, it would be inappropriate to assume that the board made any implicit decision on those issues. [15] Even if it could be said that, in applying the criteria, the board was implicitly ruling on their legality, there is no basisupon which to review that decision. In addition to having no reasons on these issues by either the director or the board, there is no

transcript of the administrative proceedings and no prior reasons of the board on these issues in other appeals to assist this court in reviewing the board’s position on them. Given the nature of the hearings that took place, neither the board’s reasons nor the outcome assist with a review of the board’s position on the legal issues on appeal. (iii) New Issues Raised on Appeal [ 16 ] The general rule is that a new issue may not be raised on appeal.

There are exceptions, however; they should be permitted only where the interests of justice require it and the court has a sufficient evidentiary record and findings of fact to do so. (See Quan v. Cusson , 2009 SCC 62 at paras. 36-37 , [2009] 3 S.C.R. 712; St. Clements (Rural Municipality) v. Zucawich , 2013 MBCA 65 at paras. 92-98 , 294 Man.R. (2d) 146; and Samborski Garden Supplies Ltd. v. MacDonald (Rural Municipality) , 2015 MBCA 26 at para. 27 , 315 Man.R. (2d) 291.) [ 17 ] These are questions of law related to the

interpretation of legislation, so the sufficiency of the evidentiary record is of less importance. In this case, the record is sufficient to provide a factual context for the appeal. The question to be answered is whether the interests of justice require that the appeal on these grounds be permitted to proceed. [ 18 ] The EIA Act , the SSAB Act , the regulations under both statutes and the policy all constitute the home statute and closely related legislation of the board. The jurisprudence makes it clear that administrative tribunals have particular expertise in the

interpretation and application of their home and closely related legislation. Further, appellate courts have been directed to show great deference to an administrative tribunal’s

interpretation of this legislation, and any review is to be done by applying a standard of review of reasonableness to the consideration of those decisions. That standard requires a reviewing court to determine whether the administrative tribunal’s

interpretation of its legislation comes within a reasonable range of possible outcomes or

interpretations. (See, for example, Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190; A.T.A. ; and Russell Inns at paras. 61, 74.) As noted above, without a decision to review, this standard is difficult, if not impossible, to apply. [ 19 ] The questions of the

interpretation of the statutes, regulations and policy at issue here and whether the policy impermissibly expands the meaning of “cohabiting in a conjugal relationship” in subs. 5(5) of the EIA Act to include relationships that are not, at law, conjugal in nature are at the heart of the expertise of the director and the board. The decision requested by Ms Murray, if accepted, will significantly change the existing regime for determining what constitutes a conjugal relationship under the legislation and, possibly, for how the board treats the policy in general, when deciding all appeals.

These are issues that the director and the board have the right and responsibility to determine, within the context of their expertise regarding the income assistance regime. The courts should not be making these decisions as a matter of first instance. [ 20 ] The importance of the decision to the income assistance regime, coupled with the fact that Ms Murray will not be affected by the decision regardless of the outcome, lead to the conclusion that the interests of justice do not require that these issues be determined as new issues on appeal.

The matters may well be raised before the administrative tribunals in the future and, if appropriate, can be the subject of a future appeal. IV. CONCLUSION [ 21 ] In conclusion, we are of the view that these issues are not properly before this court because they were not first raised or determined by either the director or the board. For this reason, the appeal is dismissed. [ 22 ] There will be no order for costs. J.A. J.A. J.A.