2016 MBCA 83, 2016 MBCA 83

Citation: Harris et al v Director, Social Services Date: 20160830 Interlake Region, 2016 MBCA 83 IN THE COURT OF APPEAL OF MANITOBA Docket: AI16-30-08638 ) BETWEEN : ) ) KEVIN HARRIS ) ) (Appellant) Applicant ) ) Z. Jones - and - ) for the Applicants ) DIRECTOR, SOCIAL SERVICES ) INTERLAKE REGION ) ) A. J.

Ladyka (Respondent) Respondent ) for the Respondent ) - and - ) ) Docket: AI16-30-08639 ) Chambers motions heard: BETWEEN : ) August 25, 2016 ) MELISSA TOUCHETTE ) ) (Appellant) Applicant ) Decision pronounced: ) August 30, 2016 - and - ) ) DIRECTOR, SOCIAL SERVICES ) INTERLAKE REGION ) ) (Respondent) Respondent ) CHARTIER CJM [ 1 ] These two leave to appeal applications were heard together.

The applicants, Kevin Harris (Harris) and Melissa Touchette (Touchette), seek leave to appeal an order of the Social Services Appeal Board (the Board) dated June 10, 2016, which confirmed the February 6, 2015 decision of the respondent, the Director, Social Services Interlake Region (the Director), terminating payment of general assistance to both applicants and assessing an overpayment of $20,861.39 to Harris and $15,296.19 to Touchette constituting all general assistance that had been paid to them. [ 2 ]

Section 23 of The Social Services Appeal Board Act , CCSM c S167, provides applicants with a very limited opportunity to appeal a decision of the Board to this Court. Leave must first be obtained, and it can only be granted on grounds of appeal involving the Board’s jurisdiction or on a point of law which is not intertwined with factual determinations made by the Board. Moreover, it is not enough to simply raise a point of law or jurisdiction. The onus rests on the applicants to demonstrate that any issue raised has arguable merit; that is, that it has a reasonable prospect of success.

Finally, any question raised must be of sufficient importance to warrant the attention of the province’s highest court. See Klippenstein v Director, Point Douglas , 2011 MBCA 15 at para 2 . [ 3 ] As stated by the applicants in their briefs, the “sole issue” before the Board was whether they were in a common-law relationship. The Board found that they were in such a relationship. The relevant statutory provision is section 18(3) of The Manitoba Assistance Act , CCSM c A150 (the Act ), which reads as follows:

Common-law relationships 18(3) Where two persons who are not legally married to each other are living together under circumstances that indicate to thedirector that they are cohabiting in a conjugal relationship, they shall, for the purposes of this Act and the regulations, be treated in thesame manner as two persons who are legally married, and any application by either or both of them for income assistance, generalassistance or shelter assistance shall be dealt with in every respect in that manner. [4] The applicants submitted that the Board erred in relying on

section 8.1.4 of the Employment and Income AssistanceEIA Administrative Manual, online: <http://www.gov.mb.ca/jec/eia/admin_manual/>, to determine whether a common-law relationshipexisted without considering, first, whether there was economic or financial interdependence between them and, second, how theirrespective disabilities affected the nature of their friendship, therefore denying them their right to equality pursuant to

section 15 of theCanadian Charter of Rights and Freedoms (the Charter). [5] The Director argued that the grounds raised were certainly not jurisdictional questions or pure questions of law. TheDirector pointed out that the Board had to determine whether the applicants were in a common-law relationship.

The Director stated thatthe Board, after considering the arguments, reviewed the evidence before it and applied section 18(3) of the Act to the facts andsubmitted that the resulting determination was, at best, a question of mixed fact and law. [6] The reasons of the Board clearly show that it considered whether there was economic or financial interdependencebetween the applicants when it cited the evidence of such interdependence. The reasons show as well that it took into account the caselaw submitted by counsel.

A fair reading of the Board’s reasons also shows that it considered the applicants’ respective disabilities inreaching its decision as to the nature of their relationship. [7] Key to the Board’s decision however, and the basis for its finding that a common-law relationship existed, were threedocuments which were very damaging to the applicants’ cases. Those documents, signed by the applicants in unrelated matters, hadthem self-identifying that they were together in a common-law or long-term boyfriend/girlfriend relationship. The applicants stated thattheir own prior statements were false.

In light of the Board’s finding that a common-law relationship existed, it follows of necessity thatit rejected the applicants’ explanations as to why they made the false statements. [8] The Board also made credibility findings relating to the applicants’ landlords. When an investigator first contactedthem, they both stated that the applicants were, in their view, living as a common-law couple, showing a very physical loving relationshipand saying that they wanted a baby together. However, at the appeal, both landlords recanted their statements by submitting a lettersaying they misjudged the couple.

The Board accepted the landlords’ first statements and rejected their later evidence.

It must be notedthat the applicants admitted at the hearing that since the termination of their government assistance, they have entered into a sexualrelationship and now have a child together. [9] This Court has already stated that the question of whether two people are cohabiting in a conjugal relationship is oneof fact for the decision-maker to determine on the evidence (see Steffen v Bryer et al, 2004 MBCA 83 at para 26, 184 ManR (2d) 310,leave to appeal to SCC dismissed with costs on December 16, 2004, [2004] SCCA No 357 (QL)).

As can be clearly seen from the above,the applicants are asking this Court to apply the facts, as accepted by the Board, to the law, which, in the civil law context is a questionof mixed law and fact, not of law alone (see Canada (Director of Investigation and Research) v Southam Inc, (SCC),[1997] 1 SCR 748 at para 35). [10] In my view, the applicants’ grounds of appeal are, at best, questions of mixed fact and law. The grounds are notquestions of jurisdiction or points of law alone and are therefore not questions upon which leave can be granted. [11] Leave to appeal is denied on both applications. CJM