r v Director Fort Garry, 2017 MBCA 11

Citation: Harder v Director Fort Garry/River Heights, Date: 20170119 2017 MBCA 11 Docket: AI16-30-08667 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) K. A. Burwash DR. PHYLLIS GWEN HARDER ) for the Applicant ) (Appellant) Applicant ) A. J.

Ladyka ) for the Respondent - and - ) ) ) Chambers motion heard: DIRECTOR, FORT GARRY/RIVER ) December 1, 2016 HEIGHTS ) ) Decision pronounced: (Respondent) Respondent ) January 19, 2017 STEEL JA [ 1 ] This is an application for leave to appeal from an order of the Social Services Appeal Board (the Board). [ 2 ] The applicant was unable to work, due to health issues, and consequently applied for income assistance benefits in May 2009 from the Employment and Income Assistance Program of the Government of Manitoba (the Program). [ 3 ] Her health issues included an eating disorder which required nutritional supplements and/or a special diet.

The applicant would have been entitled to an additional financial benefit for a special diet but first had to submit a Therapeutic Diet & Nutritional Supplement Request Form. As a result of a miscommunication and misunderstanding, that form was not submitted until January 2013, following which the Program added an allowance of $136.93 to her budget. [ 4 ] The applicant incurred a significant amount of debt supplementing her diet on her own between 2009 and 2013. She requested payment for the special diet retroactive to her date of enrollment in the Program.

The Program denied her request, advising that the Program could only provide funding for a special diet from the date on which the request and supporting medical information were submitted which, in this case, was January 31, 2013. [ 5 ] On hearing the appeal, the Board upheld the Program’s decision at its first hearing and at a reconsideration of that decision which, at the request of the applicant, was not held until July 2016. The applicant now seeks leave to appeal this decision to the Court of Appeal.

Facts [ 6 ] The applicant’s doctor had confirmed from the very beginning that, because of her eating disorder, she required nutritional supplements and/or over-the-counter medications. The applicant was advised that income assistance was not provided for over-the-counter medications but there were certain nutritional supplements that could be provided directly to her. Unfortunately, the applicant could not tolerate these nutritional supplements. When sent to a dietician, she was only told to try the same nutritional supplements which were not beneficial for her condition.

Consequently, from May 2009 to February 2013, she was forced to purchase the special food in question herself, incurring almost $6,300 of debt. [ 7 ] The applicant insists that, although the Program was aware that she suffered from an eating disorder and had special nutritional needs, she was not told about the availability of funds for a special diet. The worker explicitly told her nothing further was available for her and no monies could be added to her budget.

She acknowledges receiving the form in question once, but thought that it needed to be filled out only if she wished to receive the three-month supply of supplements, which the Program provided directly to the client. [ 8 ] It was only in January 2013 that the applicant insists she became aware of additional funds that were available for supplemental food. She became aware, she states, not as a result of information from the Program but, rather, by luck. She came across

a pamphlet at her mental health worker’s office that discussed income assistance benefits and therapeutic diets.

She submitted therequired form and now, as indicated, receives an additional $136.93 per month to assist her with purchasing the special food she needs. [9] However, she maintains that she was never provided with any information about the therapeutic diet financialassistance from anyone at the Program, despite her intake and case workers both knowing about her situation as a result of a letter fromher doctor in 2009 detailing her medical condition. [10] On the other hand, the Program insists that they provided her with the specific form in question at least twice andperhaps three times, but it was not completed until January 2013.

It is the form which indicates exactly the nature of the special diet thatis medically required—in this case, a high calorie/high protein diet. While they acknowledge that her doctor has advised the Program ofher multiple health concerns since the time of her enrolment, they state there has never been a request made for a therapeutic diet before2013. The Program has no specified rates for non-standard diets, as they are based on individual medical needs and circumstances. Therefore, the Program needs documentation from a qualified medical professional in order to determine the cost of the special diet.

Analysis and Decision [11] Pursuant to section 23(1) of The Social Services Appeal Board Act, CCSM c S167, an appeal to the Court of Appealfrom an order of the Board may only be made with respect to a question of jurisdiction or a question of law.[1] Before such an appealmay proceed, an applicant must obtain leave to appeal from a judge of the Court of Appeal. [12] The test for leave to appeal is well known. The question must be one of law that warrants the attention of the court andthat has an arguable case of substance, that is to say, it must have a reasonable prospect of success.

See Harris et al v Director SocialServices Interlake Region, 2016 MBCA 83 at para 2; Klippenstein v Director, Point Douglas, 2011 MBCA 15 at paras 1-2; and Pelchat vManitoba Public Insurance Corp and Automobile Injury Compensation Appeal Commission, 2006 MBCA 90 at para 2. [13] When considering the third criterion as to whether there is a reasonable prospect of success, it is appropriate for thecourt to consider the standard of review that would be applied by the court on appeal on the basis that it relates to the “reasonableprospect of success” (Sterling O & G International Corp v Director of Employment Standards Division (Man), 2012 MBCA 18 at para18, 275 ManR (2d) 280 (in chambers); see also Harder v Manitoba Public Insurance Corp et al, 2012 MBCA 20 at paras 28-29, 275ManR (2d) 298; and Green v Houston Recruiting Services Ltd, 2011 MBCA 16 at para 27, 262 ManR (2d) 177). [14] The court may also consider the overarching concern for the interests of justice.

Some cases have articulated theinterests of justice as referring to broader societal concerns while using the word “injustice” as applying primarily to the interests of theparticular litigant. See R v Carpenter Fishing Corp, 2002 BCCA 104 (in chambers); 4784881 Manitoba Ltd v Khidir, 2008MBCA 49, 228 ManR (2d) 81 (in chambers); Thomas v Director, Employment and Income Assistance Programs, 2013 MBCA 16 (inchambers); and Quick Auto Lease Inc v Nordin, 2014 MBCA 32, 303 ManR (2d) 262 (in chambers).

In Rolling River School Division vRolling River Teachers’ Association of the Manitoba Teachers’ Society et al, 2009 MBCA 38, 236 ManR (2d) 249, Chartier JA, as hethen was, wrote (at para 13): [F]rom time to time, an exceptional set of circumstances may present itself where it may be judicious to grant leave even though one ormore of the three criteria are not met.

Such a circumstance is when the denial of leave would result in an injustice. [15] Obviously, in those cases where an individual injustice may exist as well as broader public concerns, a court may bemore apt to grant leave but the presence of either may be sufficient for the court to exercise its discretion. See Thomas. [16] The applicant argues that the Board erred in its

interpretation of section 5(1)(

a) of The Manitoba Assistance Act (theAct), CSSM c A150. Section 5(1)(

a) of the Act states that: Income assistance The director shall provide income assistance, in accordance with this Act and the regulations, to or in respect of a person who, in theopinion of the director is a person (

a) who, by reason of age or by reason of physical or mental ill health, or physical or mental incapacity or disorder that is likely tocontinue for more than 90 days (

i) is unable to earn an income sufficient to meet the basic necessities of himself and his dependents, if any. [17] It is submitted that, once an applicant is determined to be unable to earn a sufficient income by reason of physical illhealth, then the

section requires the Director to provide an applicant with income assistance. The requirement to provide incomeassistance begins from the date that an applicant is determined to be incapacitated. [18] Yet, the applicant submits that, contrary to section 5(1)(a), the Director added a requirement that prohibited

reimbursement from the date she became incapacitated. In denying her request, the Director stated: Correspondingly to Section 5(1) (

a) of the EIA Act which provides authority for granting income assistance for persons with disabilities, the effective date of eligibility is determined by the date which the completed assessment or all of the required information is received by the EIA office. This same policy is applied to assessing eligibility for health related items such as therapeutic diets and supplements. [ 19 ] The Board upheld the Director’s

interpretation of the

section and stated: [T]he Board upholds the Department’s practice of providing a benefit effective the date that the information needed for the provision has been received. [ 20 ] By so deciding, the applicant submits that the Board added an “effective date” when funds will be paid to a recipient of income assistance that is not contained in the actual wording of

section 5 and which is contrary to the intention of the Act and the legislative scheme it establishes. In the applicant’s situation, it is submitted, these health needs existed at the time she was found to be unable to provide for her basic needs. These health needs were known to the Program since her doctor informed it in a letter. It is argued that this is a question of statutory

interpretation which, in turn, is a question of law; it is certainly a question that affects a large number of recipients of social assistance and is a matter of public interest that warrants the Court’s attention. [ 21 ] I have broad discretion as to what question warrants the Court’s attention and is a matter of public interest. See Winnipeg Airports Authority Inc v EllisDon Corp , 2011 MBCA 51 , 268 ManR (2d) 66 . I do believe that this question, if one of law, could potentially affect a large number of vulnerable individuals and does indeed warrant the Court’s attention.

The timing of when individuals are entitled to receive the assistance that they so urgently require to meet their needs is of fundamental importance to those who must rely on the Program. [ 22 ] The real issue here is whether this is a question of law, as opposed to one of fact or of mixed fact and law. [ 23 ] The Board submits that this is, at best, a question of mixed fact and law and thus, leave should be denied. It points out that section 5(1)(

a) which establishes the duty of the Director to provide income assistance to eligible persons, specifically states that this duty shall be exercised in accordance with the Act and the regulations under the Act . [ 24 ] The Employment and Income Assistance Regulation , Man Reg 404/88R, in section 6(2) authorizes payment of an additional amount to persons who had been prescribed a special diet by a medical practitioner.

It states: 6(2) Notwithstanding any other provision of this regulation, where an applicant or recipient requires a special diet by medical prescription, the monthly basic allowance may be exceeded by an amount approved by the minister. [ 25 ] The applicant did not provide a medical prescription for a special diet until January 2013.

Thus, the Director and the Board were not adding to or deviating from section 5(1)(a), they were in fact acting in accordance with the Act and the regulations . [ 26 ] I agree with counsel for the Board that the Board did not interpret the Act and regulations as absolutely prohibiting a retroactive payment.

It stated in its decision as follows: Although the Employment and Income Assistance Program has policies regarding the effective date of enrolling a person on income assistance, and for the effective date of disability benefits, there are no specific policies regarding providing retroactive benefits for any other type of ongoing special request or need. [ 27 ] As a matter of fact, the Board has in the past ordered the Program to make retroactive payments where they believed the Program did not act with due diligence in providing the client with appropriate information.

So for example, the case of Hashmi v Director, Employment and Income Assistance , 2015 MBCA 112 , involved an application for leave to appeal an order of the Social Services Appeal Board, which granted the applicant retroactive special care shelter income allowance for a period of 12 months. In that case, the Board accepted the applicant’s evidence that she was unaware that she was eligible for the increased amount and also found that the Program had not done its due diligence in ensuring that the applicant’s needs were being met.

The applicant in Hashmi applied for leave to appeal, arguing that the period of retroactive payment should go back farther than the 12 months ordered by the Board. [ 28 ] In the case at bar, however, the Board held that the Director had exercised due diligence, but that there had been a miscommunication between the parties. The question here is a clear example of one that is mixed fact and law. It is not enough for the applicant to satisfy the criteria under section 5(1) (

a) of the Act . She must satisfy the requirements of regulations as well. In order to determine whether retroactive payments should be made for a therapeutic diet, the Board might consider a number of factors including:

• What are the applicant’s specific medical condition and dietary needs? • What communications occurred between the applicant and the Program, and when? • What documents were provided by the applicant to the Program, and when? • What prescriptions from a doctor or other medical practitioner were submitted by the applicant to the Program, and when? [29] The relief sought by the applicant would require this Court to reconsider and reweigh the factual evidence and findingsof the Board.

That does not meet the requirement of a pure question of law and accordingly, leave to appeal cannot be granted. [30] A similar issue arose in this Court in Willms v Manitoba (Director of Social Services, Winnipeg South/West), [1985] MJNo 149 (QL). The applicant in that case, like in the present matter, had asked the Board to order retroactive benefits for the cost ofspecial care. He argued that he had been given erroneous advice by Program workers in the past about whether such additional benefitswere available, again similar to the present situation.

Upon application for leave to appeal, the Court found that the Board’s decision tonot order retroactive benefits was based on factual issues, and its decision on those factual issues was final. Twaddle JA stated (at para6): The applicant asked for a retroactive adjustment. The appeal board did not grant that request, but neither did it deny the request for wantof power to do so.

No arguable point of law arises in this matter and leave to appeal is, therefore, denied. [31] In addition, an appellate court will generally apply a standard of reasonableness where an administrative tribunal isinterpreting or applying its home statute and closely-related legislation.

See Murray v Director of Employment and Income Assistance(Man), 2015 MBCA 66 at para 18, 319 ManR (2d) 219. [32] Given that section 6(2) of the EIA regulation set out the requirement of a medical prescription for a special diet in orderfor funding to be provided and given that, as the Board pointed out, case workers must rely on medical specialists for their information,the Board’s confirmation of the Program’s decision not to make a retroactive payment in this case would most likely fall within a rangeof possible, acceptable outcomes that are defensible in respect of the facts and law. [33] I am not deciding, as counsel for the Board indicated in his brief, that “neither the Program nor the Board had theauthority to provide retroactive funding for a special diet”, merely that their decision not to do so in this particular case, based on thesefacts, would most probably be held to be within the range of reasonable outcomes.

Conclusion [34] The statute allows appeals only on questions of jurisdiction or law. Other than that narrow range, it was the intention ofthe legislature to give the Board the discretion to apply the law and make factual decisions. To allow courts to intervene on factualdecisions would hamper the important objectives of finality, efficiency and proportionality. The Board is entitled to its view of the factsand the application of the law to the facts of a particular case, even if I might personally disagree with its views. [35] This particular case has unfortunate facts.

As I have come to understand it, there is a difference between over-the-counter vitamins and supplements (which are not covered), nutritional supplements (which are limited to certain ones and are delivereddirectly to the client) and a therapeutic diet (for which additional funds are added to the client’s budget). The applicant, an intelligent,articulate woman with a Ph.D. tried her best to understand all the rules and regulations with respect to the scheme of income assistance.

Although she did a significant amount of research, she did not understand this difference between nutritional supplements provideddirectly by the Program, which she could not tolerate, a standard therapeutic diet and a non-standard therapeutic diet.

I do not find thissurprising.[2] Once she understood what was required, she testified that she filled out the form immediately. [36] The department, on the other hand, maintains that it sent the applicant the correct forms at least twice and perhaps threetimes and that it did provide the appropriate information. [37] The Board concluded that the Program had taken reasonable efforts prior to January 2013 to advise the applicant of theavailability of additional funds for a special diet.

In particular, it found that the Program sent a letter to the applicant along with a copyof the special diet request form and a list of approved therapeutic diets and nutritional supplements to her as early as June 2009. [38] The parties have a different view of the facts. The applicant filed an affidavit of many pages giving her point of view.

It becomes obvious why the legislature prohibited courts from becoming involved “in an assessment or analysis of conflicting factualissues” (Shersty v Manitoba Public Insurance Corp, 2002 MBCA 108 at para 2 , and limited us to questions of law. [39] In its reasons for decision, the Board characterized the issue as arising from a series of miscommunications. It stated: The Board notes the unfortunate circumstances in this particular case. It appears to the Board, that despite both program personnel and[the applicant] acting cooperatively and in good faith, miscommunication occurred.

The Board finds neither party at fault in this regard. [40] That may be, but it is the applicant that remains more than $6,000 dollars in debt as a result of this miscommunication. It is with great reluctance that I deny leave to appeal.

JA