r v Director, 2017 MBCA 108

Citation: Stadler v Director, St Boniface, 2017 MBCA 108 Date: 20171107 Docket: AI15-30-08481 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Madam Justice Diana M. Cameron BETWEEN: ) K. A. Burwash ) for the Appellant ) ) A. J. Ladyka ) for the Respondent ) ) D. L. Carlson ) for the Attorney General of ) Manitobamartin stadler ) ) V. E. Rachlis(Appellant) Appellant) for the Social Services Appeal ) Board- and - ) ) J. B. Williams anddirector, st. boniface ) J. M.

Pastora Sala ) for the Intervener Canadian(Respondent) Respondent) Mental Health Association ) Manitoba and Winnipeg, the ) Association for Community ) Living-Winnipeg Inc. ) and Winnipeg Harvest ) ) Appeal heard: ) May 5, 2017 ) ) Judgment delivered: ) November 7, 2017 monnin JA [1] This appeal, with leave, from a decision of the Social Services Appeal Board (the Board), raises the question of whatjurisdiction, if any, the Board has to consider issues involving the Canadian Charter of Rights and Freedoms (the Charter) in itsdeliberations.

The Board, relying upon this Court’s decision in Fernandes v Manitoba (Director of Social Services (Winnipeg Central))(1992), (MB CA), 93 DLR (4th) 402 (CA), held that it had no jurisdiction to consider Charter issues. The appellantand the interveners say that, in light of recent Charter jurisprudence from the Supreme Court of Canada, that case is no longer good law. For the reasons set out below, I agree. I would allow the appeal. Background

[ 2 ] The appellant, an income assistance recipient as a result of a disability, was told by the Director of the Employment and Income Assistance Program, St. Boniface (the Director), that he had an obligation to make reasonable efforts to seek out all sources of income, including applying for pension benefits under the Canada Pension Plan once he turned 60 years of age. The appellant objected to doing so arguing that, if he did it at that earlier age, his monthly entitlement would be permanently reduced. The Director responded by suspending his income assistance.

The appellant appealed to the Board pursuant to section 9(3) of The Manitoba Assistance Act , CCSM c A150 . [ 3 ] The appellant argued before the Board that the requirement for him to apply at an earlier age or have his income assistance suspended was discrimination based on age and disability. While not fully articulated either before the Board or before this Court, his argument appears to be that the alleged discrimination was a breach of his

section 15 Charter right to equality and his

section 7 Charter right to life, liberty and security of the person. [ 4 ]

Section 12.1(2) of

Part 4 of the Assistance Regulation , Man Reg 404/88R (the Regulation), a regulation made under The Manitoba Assistance Act , provides that an applicant or recipient shall make “all reasonable efforts” to obtain the maximum amount of compensation available under another act or program, including one sponsored by the federal government. [ 5 ] In its decision, the Board stated: “The Board interprets that [section 12.1(2) 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.” [ 6 ] It then considered

section 12.1(4) of the Regulation which provides that, where an obligation set out in

section 12.1(2) is not met, the director may deny, suspend or discontinue income assistance. The Board stated: The Board interprets [section 12.1(4) of the Regulation ] to mean that when a person who could access their CPP retirement benefits, but chooses not to, the director has the discretion to suspend benefits until such time as the provision of

Section 12.1(2) has been met. The director may also choose to continue to provide benefits, but make a deduction from those benefits in the amount that could have been obtained from CPP Retirement benefits. This indicates that the Director had a discretion to continue to provide the appellant with a partial payment. [ 7 ] As to the Charter issues raised, the Board stated as follows: [The appellant] 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 appellant’s] appeal based on its enabling statutes, The Social Services Appeal Board Act [CCSM c S167], and The Manitoba Assistance 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 ), 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. Issues [ 8 ] The simple issue in this case is whether the Board is required to consider the Charter in reaching its decision. This will require a review of the current jurisprudence on the jurisdiction of administrative tribunals in determining Charter issues.

Standard of Review [ 9 ] The appellant and interveners urge upon us a standard of correctness, arguing that this is a “true issue of jurisdiction” since the Board was being asked to determine whether it had the jurisdiction to entertain the question before it. [ 10 ] However, this Court has already considered the standard of review to be applied to decisions of the Board dealing with its constituent statutes, regulations and policies, and has determined that it should be reviewed on the standard of reasonableness (see Murray v Director of Employment and Income Assistance (Man) , 2015 MBCA 66 ). [ 11 ] Without entering into the thorny debate with respect to whether this may be one of the elusive true issues of jurisdiction, I am satisfied that, whether applying a standard of correctness or reasonableness, the outcome would be the same.

If the Fernandes decision is no longer good law, then reliance upon it by the Board, while understandable, renders its decision both incorrect and unreasonable. Evolution of the Jurisprudence on the Role of Tribunals in Respect of the Charter Fernandes [ 12 ] In Fernandes , this Court had to determine the issue that is before us now, namely, whether the Social Services Advisory Committee, the predecessor to the Board, had jurisdiction to determine issues under the Charter and to take human and social values identified in the Charter as an aid to

interpretation of their constituent statute.

[13] By the time Fernandes was being considered by this Court, the decisions in Douglas/Kwantlen Faculty Assn v DouglasCollege, (SCC), [1990] 3 SCR 570; Cuddy Chicks Ltd v Ontario (Labour Relations Board), (SCC),[1991] 2 SCR 5; and Tétreault-Gadoury v Canada (Employment and Immigration Commission), (SCC), [1991] 2 SCR22 (the Cuddy Chicks line of cases), had been decided and were before the Court.

Using the jurisprudence to that time, this Courtdetermined the jurisdiction of the Board by reviewing its authority over the parties, the subject matter in question and the remediessought by the appellant in accordance with the then existing test (see Fernandes at pp 410-11). The Court concluded that no authorityexisted under the statute for the director or the committee to consider any questions of law except those arising under the legislation. Italso concluded that Charter issues were not impliedly within the jurisdiction of the director or the committee.

It distinguished the CuddyChicks line of cases by noting that, in those cases, the legislation under which the tribunal operated was attacked directly (an attack undersection 52 of the Constitution Act, 1982) while, in Fernandes, the appellant was seeking a remedy under section 24(1) of the Charter. [14] The test applied by this Court in Fernandes followed what was known as the Mills test (see Mills v The Queen, (SCC), [1986] 1 SCR 863) to determine whether the tribunal was a “court of competent jurisdiction” able to grant a remedyunder section 24(1) of the Charter.

It required jurisdiction over the person and the subject matter, and also jurisdiction to grant theremedy in question. Conway [15] In R v Conway, 2010 SCC 22, the Supreme Court of Canada reformulated and simplified the test to determine when anadministrative tribunal is considered a court of competent jurisdiction to consider constitutional questions and provide Charter remedies.

The primary consideration became whether the administrative tribunal could consider questions of law (see Christopher D Bredt &Ewa Krajewska, “R v Conway: UnChartered Territory for Administrative Tribunals” (2011) 54 SCLR451, online: <digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1222&context=sclr>). [16] After reviewing the jurisprudence, including the cases referred to by this Court in Fernandes, Abella J, speaking for theCourt, stated as follows in Conway (at para 77): These cases confirm that administrative tribunals with the authority to decide questions of law and whose Charter jurisdiction has notbeen clearly withdrawn have the corresponding authority—and duty—to consider and apply the Constitution, including the Charter,when answering those legal questions.

As McLachlin J. observed in Cooper: [E]very tribunal charged with the duty of deciding issues of law has the concomitant power to do so. The fact that the question of lawconcerns the effect of the Charter does not change the matter. The Charter is not some holy grail which only judicial initiates of thesuperior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined bythese tribunals than by the courts.

If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisionsof these tribunals. [para. 70] [17] Abella J then went on to say (at para 78): The jurisprudential evolution leads to the following two observations: first, that administrative tribunals with the power to decidequestions of law, and from whom constitutional jurisdiction has not been clearly withdrawn, have the authority to resolve constitutionalquestions that are linked to matters properly before them.

And secondly, they must act consistently with the Charter and its values whenexercising their statutory functions.

It strikes me as somewhat unhelpful, therefore, to subject every such tribunal from which a Charterremedy is sought to an inquiry asking whether it is “competent” to grant a particular remedy within the meaning of s. 24(1). [18] The test to be followed to determine the question of the administrative tribunal’s jurisdiction to grant Charter remediesis then set out as follows (at paras 81-82): Building on the jurisprudence, therefore, when a remedy is sought from an administrative tribunal under s. 24(1), the proper initialinquiry is whether the tribunal can grant Charter remedies generally.

To make this determination, the first question is whether theadministrative tribunal has jurisdiction, explicit or implied, to decide questions of law. If it does, and unless it is clearly demonstratedthat the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction andcan consider and apply the Charter—and Charter remedies—when resolving the matters properly before it.

Once the threshold question has been resolved in favour of Charter jurisdiction, the remaining question is whether the tribunal can grantthe particular remedy sought, given the relevant statutory scheme. Answering this question is necessarily an exercise in discerninglegislative intent. On this approach, what will always be at issue is whether the remedy sought is the kind of remedy that the legislatureintended would fit within the statutory framework of the particular tribunal.

Relevant considerations in discerning legislative intent willinclude those that have guided the courts in past cases, such as the tribunal’s statutory mandate, structure and function (Dunedin) [R v974649 Ontario Inc, 2001 SCC 81]. [19] Conway dealt with the competency of the Ontario Review Board, which was a specialized statutory tribunal withongoing supervisory jurisdiction over the treatment, assessment, detention and discharge of those accused who had been found not

criminally responsible by reason of a mental disorder. Abella J concluded that the fact that the Appeal Board’s decision could beappealed to the Court of Appeal on a question of law was indicative of the Board’s power to decide legal questions and, since there wasnothing which withdrew Charter jurisdiction from the scope of the Board’s mandate, it followed that it was entitled to decideconstitutional questions, including Charter questions that arose in the course of its proceedings. Role and Function of the Social Services Appeal Board [20] The purpose of the Board, as set out in

section 2 of The Social Services Appeal Board Act, CCSM c S167 (the Act), is toprovide Manitobans with a fair, impartial and informal appeal process from decisions relating to various social services and programs. [21] It hears appeals under multiple Acts, including: (

a) decisions of the Director under The Manitoba Assistance Act; (

b) the suspension, revocation or refusal to grant a licence to a childcare facility under The Community Child Care Standards Act,CCSM c C158; (

c) an assessment or reassessment of Manitoba prenatal benefits under The Social Services Administration Act, CCSM c S165; and (

d) a determination of eligibility for entrance into the Community Living Disability Services Program. The Board is a successor at law to the Social Services Advisory Committee which existed under the previous statute and which wasunder consideration in the Fernandes decision. [22] In Fernandes, this Court was of the view that the Board lacked jurisdiction to consider questions of law altogether.

Itconcluded this on the basis that the Director, when determining whether an applicant was eligible for an allowance under the criteria setout in The Social Allowances Act, RSM 1987, c S160, and Regulations, performed nothing but a factual review of the appellant’ssituation and did not interpret or apply the law except under that Act. [23] While The Manitoba Assistance Act does not expressly confer upon either the Director or the Board the power to dealwith questions of law in general, in my view, the Board, when interpreting its statute or the application of the statute to a certain set offacts, is making a legal determination or, at least, a finding which is of mixed fact and law.

It is dealing with issues which, on occasion,need to be determined on the basis of a legal

interpretation. As noted by the interveners, members of this Court, when granting leave toappeal, have identified questions of law which have arisen before the Board, including: (

a) the meaning of the word “parent”; (

b) whether lump-sum payments fell within the standard definition of “income”; (

c) the proper definition and

interpretation of “cohabiting in a conjugal relationship”; and (

d) whether lost or stolen monies should be considered as “overpayments” and recovered from future payments.

See Teichrow v Manitoba Social Allowances Act, Director, Westman Region (1993), (MB CA), 101 DLR (4th) 456(CA); Kostiuk v Manitoba (Employment and Income Assistance, Winnipeg Central District) (1996), (MB CA), 141DLR (4th) 308 (CA); Miller v Manitoba (Director of Social Services, Winnipeg West), 1997 CarswellMan 377 (CA); and Murray vDirector, Employment and Income Assistance, Seven Oaks, 2014 MBCA 110. [24] I agree with the interveners that questions of law play an essential part of making decisions relating to the socialbenefits and programs under the various legislative schemes which end up before the Board.

Application of Conway Test [25] Because, as I have concluded, the Board does determine questions of law in performing its functions, then it hassatisfied the first prong of the Conway test. The next issue is whether the corollary ability to deal with Charter issues has been takenaway explicitly or implicitly. [26] There is nothing in its constituent statute which takes away the Board’s Charter jurisdiction, either explicitly orimplicitly.

Therefore, as stated in Conway, the Board “is a court of competent jurisdiction and can consider and apply the Charter—andCharter remedies—when resolving the matters properly before it” (at para 81). In fact, it is obligated to do so. [27] The next issue becomes whether the tribunal can grant a remedy under section 24(1) of the Charter given its statutoryauthority. To do so requires consideration of the legislative intent, namely, whether the remedy sought is the kind of remedy that theLegislature intended would fit within the statutory framework of the Board.

Relevant considerations will be the tribunal’s mandate,structure and function, also known as the functional and structural approach, as set out in R v 974649 Ontario Inc, 2001 SCC 81(Dunedin). [28] The approach is to determine whether the legislative intent was to allow for a particular remedy to be within thepurview of the tribunal. Framed broadly, it asks whether the court or tribunal in question is suited to grant the remedies sought undersection 24(1) of the Charter in light of its function and structure.

It requires a contextual assessment with some of the considerationsbeing those set out in Dunedin as follows (at paras 44-46): The function of the court or tribunal is an expression of its purpose or mandate. As such, it must be assessed in relation to both thelegislative scheme and the broader legal system. First, what is the court or tribunal’s function within the legislative scheme? Wouldjurisdiction to order the remedy sought under s. 24(1) frustrate or enhance this role? How essential is the power to grant the remedy

sought to the effective and efficient functioning of the court or tribunal? Second, what is the function of the court or tribunal in thebroader legal system? Is it more appropriate that a different forum redress the violation of Charter rights? The inquiry into the structure of the court or tribunal relates to the compatibility of the institution and its processes with the remedysought under s. 24.

Depending on the particular remedy in issue, any or all of the following factors may be salient: whether theproceedings are judicial or quasi-judicial; the role of counsel; the applicability or otherwise of traditional rules of proof and evidence;whether the court or tribunal can issue subpoenas; whether evidence is offered under oath; the expertise and training of the decision-maker; and the institutional experience of the court or tribunal with the remedy in question: see Mooring [v Canada (National ParoleBoard), (SCC), [1996] 1 SCR 75], supra, at paras. 25-26.

Other relevant considerations may include the workload ofthe court or tribunal, the time constraints it operates under, its ability to compile an adequate record for a reviewing court, and other suchoperational factors. The question, in essence, is whether the legislature or Parliament has furnished the court or tribunal with the toolsnecessary to fashion the remedy sought under s. 24 in a just, fair and consistent manner without impeding its ability to perform itsintended function.

Two sources may provide guidance in determining the function and structure of a court or tribunal: the language of the enablinglegislation and the history and accepted practice of the institution. The court or tribunal’s constituting legislation may clearly describe itsfunction and structure. However, it often may be necessary to consider other factors to fully appreciate the court or tribunal’s function,or the strengths and limitations of its processes.

Factors like the workload of the court or tribunal, the time constraints it operates under,and its experience and proficiency with a particular remedy, cannot be assessed on the face of the relevant legislation alone; rather,regard must be had to the day-to-day practice of the court or tribunal in question. [29] The function of the Board, as set out in its legislative scheme, is to act as a fair and impartial reviewer of the decisionsof the Director or other officials. It acts in a quasi-adjudicative manner with applicants having a right to be represented by advocates.

Parties appearing before it have the right to disclosure of documents and to know the case before them. Written reasons must beprovided. The Board can establish new rules, practices and procedures that it feels are required, and it has broad powers to hear anddecide appeals under the Acts and make orders with respect to the decisions of the designated officer. It plays an important role indecisions relating to benefits, both as to eligibility and level of benefits, for a number of vulnerable people in our society.

Accordingly, itwould appear that the Board has been given the tools necessary to deal with determinations of matters where Charter rights might beaffected, leading to the inference that the Legislature intended to empower the tribunal to apply the Charter (see Dunedin at para 75; andConway at para 34). [30] The requirement that the Board hold hearings within specific timelines (30 days) and render written decisions within 15days would argue against it being required to include Charter issues in its deliberations.

However, the requirement for efficiency andspeed is not determinative of legislative intent, merely a factor to consider in the overall assessment. It must be balanced against thedesire to prevent parallel proceedings which will be discussed later. [31] The Board’s expertise has been the subject of argument before us. The Act provides that the membership must beknowledgeable about social services and programs designated under the Act.

As a result, individuals appointed to the Board may beversed in social sciences but not necessarily the legal principles contemplated by the Charter. [32] While the composition of the Board and the knowledge of the appointees are relevant considerations in assessing thelegislative intention, they cannot be determinative. One should remember that the composition of this Board is a function of governmentaction. If the Board is required to deal with Charter issues, then different considerations may apply in the appointment process in thefuture.

As well, as noted in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 (at para 33): “However,as with judges, expertise is not a matter of the qualifications or ex​perience of any particular tribunal member. Rather, expertise issomething that inheres in a tribunal itself as an institution”. [33] The composition of a board should not be a limiting factor to the exercise of the jurisdiction that it may have.

If ananalysis discloses that Charter issues need to be considered in order to reach proper determinations, then that jurisdiction should not becurtailed by the present composition of the Board or the appointment process. [34] Finally, the Board is not limited to the knowledge of its members.

It can, in appropriate circumstances and whennecessary, seek outside legal advice to allow it to reach the proper decision (see Sarah Blake, Administrative Law in Canada, 6th ed(Toronto: LexisNexis, 2017) at para 2.272 and cases referred to at nn 667-73). [35] The final consideration is that, given the strong movement towards increased access to justice, there has been acorrelative movement away from approaches which lead to bifurcation of processes. A result which requires individuals, such as theappellant, to take parallel proceedings in a superior court in order to obtain a Charter remedy is to be discouraged.

There has been atendency to place Charter jurisdiction in the hands of administrative tribunals with a greater frequency and with less concern (see NovaScotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54 at para 29). [36] The exact nature of the remedy which is sought by the appellant in respect of an alleged Charter breach has not beenarticulated. What remedies are within the Board’s powers is another issue and not one which we are being asked to decide today.

I donot understand the appellant to be seeking to invalidate legislation or regulations but, rather, to have an

interpretation applied or adiscretion exercised which does not lead to a breach of his

section 15 or

section 7 Charter rights. As with any Charter decision, where acourt or tribunal is asked to frame a remedy under section 24(1), there is a broad discretion and panoply of relief which is available. Iwould not wish to circumscribe anything at this time so as to fetter the Board’s jurisdiction to formulate an appropriate remedy if itthought it warranted, other than to state the obvious, namely, that there was no request for the Board to exercise jurisdiction under

section 52 of the Constitution Act, 1982 , namely, the striking down or invalidating of a statute or regulation. Charter Values [ 37 ] In the course of the hearing of the appeal, the question was posed to counsel whether, irrespective of whether the Board was a court of competent jurisdiction for purposes of granting a section 24(1) remedy, it was required to decide any matter before it in accordance with Charter values, as discussed in Doré v Barreau du Québec , 2012 SCC 12 .

The Attorney General of Manitoba conceded that all tribunals in Canada are bound by the Charter and its values. [ 38 ] The exact scope of Charter values and their boundary is the subject of much discussion (see Audrey Macklin, “Charter Right or Charter-Lite?: Administrative Discretion and the Charter” (2014) 67 SCLR 561 , online: < digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1300&context=sclr >; and Lorne Sossin & Mark Friedman, “Charter Values and Administrative Justice”

(2014) Osgoode Hall Law School of York University Working Paper No 13/2014, online: < digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1061&context=olsrps>. Not all of the discussion supports the existence or use of Charter values in administrative law deliberations (see Gehl v Canada (Attorney General) , 2017 ONCA 319 per Lauwers JA). [ 39 ] At this juncture, it would be unwise to embark on a detailed discussion of what, if any, Charter values may come into play given that the exact nature of the remedy sought by the appellant is not yet known.

It may be that a Charter rights analysis will be determinative of the issues with no further discussion of what, if any, Charter values are relevant. Given the current state of uncertainty regarding the scope and nature of Charter values and what role they play in an administrative tribunal’s deliberations, I will offer no further comments. Conclusion [ 40 ] In my view, this Court’s decision in Fernandes is no longer good law.

I conclude that the Board does have the jurisdiction and the obligation to consider Charter issues, if properly raised before it. [ 41 ] I would allow the appeal, set aside the Board’s decision and remit the matter back to the Board. JA I agree: CJA I agree: JA I agree: JA I agree: JA