r v Director, 2016 MBCA 37

Citation: Stadler v Director, St Boniface, 2016 MBCA 37 Date: 20160414 Docket: AI15-30-08481 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) K. A. Burwash ) for the Applicant ) MARTIN STADLER ) A. J. Ladyka ) for the Respondent ) (Appellant) Applicant ) D. L. Carlson ) for the Attorney General ) of Manitoba - and - ) ) M. A. Smith ) on a watching brief DIRECTOR, ST.

BONIFACE ) for the Social Services ) Appeal Board ) (Respondent) Respondent ) Chambers motion heard: ) February 19, 2016 ) ) Decision pronounced: ) April 14, 2016 CAMERON JA [ 1 ] The applicant applies for leave to appeal an order of the Social Services Appeal Board (the Board), which confirmed the decision of the respondent, the director of the Employment and Income Assistance Program, St.

Boniface, to suspend his income assistance pursuant to The Manitoba Assistance Act , CCSM c A150 (the Act ), on the basis that he refused to apply to the Canada Pension Plan for benefits when he turned 60 years of age. [ 2 ] At the hearing of this matter the Board did not take a position on the application. The respondent and the Attorney General of Manitoba each took the position that leave should not be granted on the basis that the matter did not have a reasonable prospect of success. [ 3 ] For the reasons that follow, I would grant the application and allow the applicant leave to appeal.

Background [ 4 ] In 2010, the applicant was found to be eligible for income assistance for the reason that, based on disability, he was unable to earn income. As he was approaching his 60th birthday, the respondent advised him that, as part of his duty to make reasonable efforts to seek all other sources of income, he must apply to CPP to start receiving pension benefits once he turned 60 years of age in 2015. [ 5 ] The applicant refused to apply based on his assertion that if he applied for CPP benefits at age 60, rather than at age 65, his monthly CPP entitlement would be permanently reduced.

In response, the respondent suspended his income assistance. The applicant, in turn, appealed to the Board pursuant to section 9(3) of the Act . [ 6 ] Prior to his hearing before the Board, the applicant applied for CPP benefits. It is his position that he did so under duress because the decision to suspend his income assistance made it impossible for him to survive and to access medication critical to his health. Despite initially considering that the appeal might be moot because the applicant had now applied for CPP benefits, the Board decided to hear it.

A letter sent to the applicant explained the Board’s reasons:

The panel . . . has determined that the original intent of your Notice of Appeal was to make an argument against the legality of the requirement that you apply for CPP benefits, which will reduce the amount of income assistance benefits.

This issue has not been resolved, and the panel has determined that you do have the right to make this argument before the Board, and have the Board either confirm or rescind the decision of the director to require you to apply for the benefit. [ 7 ] At the appeal hearing, the applicant argued that the requirement for him to apply for CPP benefits at age 60 or have his income assistance suspended constituted age discrimination and disability discrimination. I understand his argument to be that the alleged discrimination was in breach of his

section 15 Charter right to equality (see the Canadian Charter of Rights and Freedoms ). He further argued that that it breached his

section 7 Charter right to life, liberty and security of the person. [ 8 ] In its reasons for decision, the Board held that the requirement to apply for CPP retirement pension at the age of 60 is a legislated requirement. In reaching this conclusion, it considered the Assistance Regulation , Man Reg 404/88R (the Regulation ), which provides: 12.1(2) An applicant or recipient and the applicant’s or recipient’s spouse or common-law partner shall make all reasonable efforts on behalf of himself or herself and any dependants to obtain the maximum amount of compensation, benefits or contribution to support and maintenance that may be available under another Act or program, including

an Act of Canada or a program provided by the Government of Canada. [emphasis added] [ 9 ] The Board then stated: The Board interprets that this

section of the regulation is intended to include application for any federal benefits, including CPP Retirement benefits, at the earliest date on which they are accessible. [emphasis added] [ 10 ] It considered the suspension of the applicant’s income assistance imposed by the respondent to be in compliance with

section 12.1(4) of the Regulation , which states: 12.1(4) Where an obligation described in subsections (1) to (3) is not met, the director may deny, suspend or discontinue income assistance, general assistance or shelter assistance or reduce any assistance to which the recipient later becomes entitled by an amount not exceeding the amount that would not otherwise have been paid. [ 11 ] The Board interpreted this to be a discretionary decision and agreed that the director could have chosen to continue to provide the applicant with partial payment. [ 12 ] Regarding the Charter issues raised, the Board stated: [The applicant] has indicated at the hearing that he believes [the Regulation ] is in violation of The Canadian Charter of Rights and Freedoms .

The Board has reviewed [the applicant’s] appeal based on its enabling statutes, The Social Services Appeal Board Act [CCSM c S167], and [the Act ]. Neither of those statutes provide the Board with the authority to determine that decisions are in violation of the Charter. In Fernandes v. Manitoba (Director of Social Services, Winnipeg Central, [1992] M.J. No. 279 [(QL)], the Manitoba Court of Appeal held that neither the Director of Social Services, nor the Social Services Advisory Committee had jurisdiction to consider Charter issues.

The reasoning was based on the grounds that the Social Allowances Act [RSM 1987, c S160] did not expressly or impliedly give the Director or the Committee that power. Since this time, new legislation has been implemented, but the Board still holds that the new legislation also does not give The Social Services Appeal Board that power.

[13] Finally, the Board held that if the applicant believed that the decision discriminated against him, he should file acomplaint with the Manitoba Human Rights Commission. Test for Leave to Appeal and Issue [14] The application for leave to appeal is governed by section 23(1) of The Social Services Appeal Board Act, CCSM cS167, which provides that an appeal may be taken only on a question of jurisdiction or a point of law and only with leave of the Court.

Additionally, the issue that is attempted to be raised on appeal must warrant the attention of the Court in that it will be applicable to othersimilar disputes. The final consideration is whether there is an arguable chance of success. See Klippenstein v Director, Point Douglas,2011 MBCA 15 at para 2. Aside from the above, the Court may also consider whether denial of leave could result in an injustice (seeThomas v Director, Employment and Income Assistance Programs, 2013 MBCA 16 at paras 12-13).

Position of the Parties [15] The applicant’s main argument is that the Board erred in concluding that it did not have the jurisdiction to determineCharter issues. [16] All parties agree that the issue as framed raises a question of jurisdiction or a point of law and would be applicable toother disputes. The issue is whether the applicant has an arguable chance of success. [17] The applicant does not challenge the constitutionality of the legislation.

Further, the applicant acknowledges that, inFernandes v Director of Social Services (Winnipeg Central) (1992), (MB CA), 78 ManR (2d) 172, this Court heldthat, under The Social Allowances Act, RSM 1987, c S160 (as it then was), the Committee (now the Board) need not address Chartervalues in reaching its determination regarding the provision of benefits that would have allowed the claimant in that case to live at homeas opposed to in the hospital. He also acknowledges that, in Fernandes, the Court held that the Committee did not have the jurisdictionto deal with Charter issues.

However, he distinguishes Fernandes on the basis that, in that case, no exercise of discretion was requiredby the director. [18] The applicant relies on Slaight Communications Inc v Davidson, (SCC), [1989] 1 SCR 1038, for theproposition that legislation that confers discretion does not confer power to infringe the Charter. He maintains that, in this case, therespondent made a discretionary decision when it determined that the applicant had not exercised “all reasonable efforts” in refusing toapply for CPP benefits. He further argues that the decision to suspend his income assistance was a discretionary decision.

He maintainsthat, once the legislation allows for a discretionary decision to be made, that decision cannot infringe the Charter. [19] The applicant further contends that, if the Board does not have jurisdiction to address Charter matters, a two-tieredsystem of justice is created. That is, only those persons who are able to access the court may raise Charter matters and that this createsan inequitable system of justice. [20] For the purpose of this decision I will summarize the positions of the respondent and the Attorney General together.

They maintain that this case is indistinguishable from the decision in Fernandes. [21] They acknowledge that, since Fernandes, the Supreme Court of Canada decision in R v Conway, 2010 SCC 22, [2010] 1SCR 765, restated the test for determining when administrative tribunals have jurisdiction to consider Charter issues. Administrativetribunals with the power to decide questions of law, and from whom constitutional jurisdiction has not clearly been withdrawn, have theauthority to decide constitutional issues regarding matters properly before them.

Further, they must apply Charter values whenexercising their statutory functions (see Conway at para 78). [22] However, they maintain that, even if the above constituted an arguable case for this Court to reconsider Fernandes, theapplicant has no reasonable prospect of success based on Supreme Court of Canada cases such as Withler v Canada (Attorney General),2011 SCC 12, [2011] 1 SCR 396; and Gosselin v Quebec (Attorney General), 2002 SCC 84, [2002] 4 SCR 429.

They submit that benefitschemes such as the Act must balance various claimants’ different interests and cannot be perfectly tailored to every individual’s personalcircumstances. They state that, for these reasons, such legislation has consistently been found not to violate the Charter. [23] Regarding the decision that the applicant was required to apply for CPP benefits on the basis that the legislation requiresthat he make “all reasonable efforts”, they contend that this is a non-discretionary decision falling outside of Slaight and Charter valuesneed not apply.

Discussion and Decision [24] In my view, the applicant raises an arguable case of substance that is of sufficient import to merit the attention of the fullCourt. As I will be granting leave, my reasons will be succinct. Suffice it to say that, since the decision in Fernandes, the SupremeCourt of Canada has had the opportunity to explain and refine the law with respect to the test for jurisdiction to grant a Charter remedy inthe administrative context (see Conway). It has also refined the nature of review of discretionary administrative decisions that are said toviolate Charter values.

For example, in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395, Abella J, writing for a unanimouscourt, reviewed the progression of administrative law since Slaight in the Charter context. In determining that such questions are subjectto review on a reasonableness standard, she stated (at para 35): Rather, administrative decisions are always required to consider fundamental values.

The Charter simply acts as “a reminder that somevalues are clearly fundamental and . . . cannot be violated lightly” (Cartier [“The Baker Effect: A New Interface Between the CanadianCharter of Rights and Freedoms and Administrative Law—The Case of Discretion”], at p. 86). The administrative law approach also

recognizes the legitimacy that this Court has given to administrative decision-making in cases such as Dunsmuir [2008 SCC 9 , [2008] 1 SCR 190 ] and Conway . These cases emphasize that administrative bodies are empowered, and indeed required, to consider Charter values within their scope of expertise. [ 25 ] Therefore, based on all of the above, I would grant the applicant leave to appeal on the issue of whether the Board erred in determining that it did not have the jurisdiction to consider the Charter issues raised by the applicant. JA