Canadian Multicultural Disability Centre Inc Date:, 2017 MBCA 29

Citation: Canadian Multicultural Disability Centre Inc Date: 20170301 v Director, Child and Docket: AI16-30-08715 Family Services, 2017 MBCA 29 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : CANADIAN MULTICULTURAL ) P. S. Shawa DISABILITY CENTRE INC. ) for the Applicant ) (Appellant) Applicant ) E. I. Goldenberg ) for the Respondent - and - ) ) Chambers motion heard: DIRECTOR, CHILD AND FAMILY ) February 22, 2017 SERVICES ) ) Decision pronounced: (Respondent) Respondent ) March 1, 2017 CHARTIER CJM Introduction and Criteria on Leave Applications [ 1 ] This is an application for leave to appeal from an order of the Social Services Appeal Board (the SSAB) dated November 9, 2016. [ 2 ]

Section 23 of The Social Services Appeal Board Act , CCSM c S167, provides an applicant with a very limited opportunity to appeal an order of the SSAB to this Court. Leave must first be obtained, and it can only be granted on grounds involving the SSAB’s jurisdiction or on a point of law which is not intertwined with factual determinations made by the SSAB. Moreover, it is not enough to simply raise a point of law or jurisdiction. The onus rests on the applicant 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 Harris et al v Director, Social Services Interlake Region , 2016 MBCA 83 at para 2 . [ 3 ] The last point to be made with respect to the above-mentioned criteria is that this Court may also consider the overarching concern for the interests of justice. As Freedman JA stated in Harder v Manitoba Public Insurance Corp et al , 2012 MBCA 20 , 275 ManR (2d) 298 , “If the refusal to grant leave might result in an injustice, leave may be granted” (at para 13).

Factual Background [ 4 ] For the purposes of this motion, the following facts need to be stated. After applying for a licence to operate a residential child care facility, the director of Child and Family Services wrote to the applicant denying preliminary approval to proceed with the application. The applicant appealed this decision to the SSAB. Hearing dates were scheduled for September 6 to 8, 2016, for the respondent’s presentation and September 12 to 14, 2016, for the applicant’s presentation. [ 5 ] The hearing commenced as scheduled on September 6, 2016.

On September 12, 2016, the applicant requested an adjournment and for the hearing panel to recuse itself. Both requests were denied. The applicant then advised that it did not want to continue with the hearing until it had appealed those denials to the Court of Appeal. As a result, at around noon, the SSAB adjourned the hearing indefinitely. Later that afternoon, counsel for the applicant contacted the director of the SSAB to advise her that, after further consideration, the applicant wished to proceed with the scheduled September 13 and 14 hearing dates.

At 5:04 p.m. on September 12, 2016, counsel for the applicant sent the director an email confirming their conversation and the request to continue with the hearing the next day. [ 6 ] On the morning of September 13, 2016, the director called counsel for the applicant to advise that the SSAB was not prepared to reconvene unless ordered to do so by the Court of Appeal. On September 19, 2016, the SSAB wrote to counsel for the

applicant and provided reasons regarding its decisions to deny the adjournment and recusal requests. It closed it letter with the following paragraph: After the panel’s ruling you had advised the panel that you would not be proceeding. A request was made to have the panel’s decision on the denial of the adjournment in writing in order to file with the Court of Appeal. As there was a definitive reply to the panel and the respondent on refusing to continue with the presentation of your case, the panel considers this matter adjourned on an indefinite basis pending a ruling from the Court of Appeal to reconvene.

Failing that, the SSAB will consider the appeal closed. [ 7 ] On September 23, 2016, in response to a request by counsel for the respondent to clarify the above-mentioned paragraph, the SSAB wrote that it “is not in the practice of writing decision orders on matters that have not been fully heard.” On October 12, 2016, the applicant submitted to the SSAB a request for reconsideration regarding its September 19, 2016 decision to not reconvene unless ordered to do so by our Court.

On October 24, 2016, a new panel of the SSAB considered the reconsideration request and issued a letter on October 27, 2016, stating that it was unable to grant the reconsideration request since the SSAB had not yet issued an order.

However, this new panel referred the matter back to the original panel to make a ruling “on the existing evidence.” [ 8 ] On November 9, 2016, the original panel issued an order confirming the director’s decision to deny preliminary approval “based upon the evidence it heard and received in this matter.” It also stated that while the applicant “did not make a presentation of [its] case,” it understood its arguments “through questions and statements made at the hearing”. Analysis and Decision [ 9 ] The applicant has raised no less than nine grounds of appeal.

In my view, three of these grounds are subsumed in a fourth.

Specifically, ground no. 3—making an order in a matter that has not yet been completely heard; ground no. 5—calling upon the applicant to commence its case before the respondent had completed presentation of its case; and, ground no. 8—ruling upon a matter when it had not heard the evidence of the applicant, are included in the broader ground no. 7 and which raises the following question: Did the SSAB fail to give the applicant an opportunity to be fully heard and thereby fail to abide by the rules of natural justice and procedural fairness? [ 10 ] I am also of the view that l eave with respect to the remaining five grounds can be summarily denied on the basis that they have no arguable merit because they either: 1) are overtaken by the November 9, 2016 order and have become moot (ground no. 1—regarding the SSAB’s September 19, 2016 decision to refuse to reconvene unless ordered by our Court; ground no. 6—regarding the new panel’s October 27, 2016 decision that the original panel in this matter erred; and ground no. 9—regarding the SSAB’s September 23, 2016 decision that the matter would remain adjourned unless otherwise directed by this Court); 2) do not raise a question involving the SSAB’s jurisdiction or solely on a point of law (ground no. 2—refusing to grant an adjournment); or 3) have no evidentiary basis for the claim (ground no. 4—regarding the SSAB’s refusal to recuse itself because of bias against the applicant). [ 11 ] Accordingly, this leaves for my consideration only the broader ground no. 7 which raises the issue of whether the SSAB failed to give the applicant an opportunity to be fully heard and thereby failed to abide by the rules of natural justice and procedural fairness. [ 12 ] The applicant acknowledges that it had indicated early in the afternoon of September 12, 2016, that it did not want to continue with the hearing in order to appeal to the Court of Appeal the SSAB’s denials of its requests.

It maintains, however, that its email, sent to the SSAB later that same day, made it clear that it had changed its mind and wanted to continue with the scheduled hearing dates.

It states that it never closed its case and submits that the SSAB was aware of this pointing to the SSAB’s own September 23, 2016 letter where it acknowledged that the matter had “not been fully heard.” The applicant argues that, as a result of the SSAB’s actions, it never got a chance to fully present its case. [ 13 ] The respondent submits that, by refusing to present its case on September 12, 2016, the applicant waived its right to be heard and that, in any event, the SSAB was able to delineate its primary arguments through the robust written submissions as well as through the questions and statements made by counsel for the applicant during the hearing. [ 14 ] For the reasons that follow, I will grant the applicant’s motion for leave to appeal on ground no. 7.

Given that a panel of this Court will now consider this ground, my reasons regarding why the applicant met the three criteria will remain brief. First, the issue of procedural fairness and natural justice clearly raises a question of law in that there can only be one correct answer: either there was a breach or there was not. Second, an issue which raises such fundamental principles of fairness is of sufficient importance to

warrant consideration by our Court.

Finally, I am of the view that there is arguable merit to the applicant’s submission that it was not given an opportunity to be fully heard in light of the uncontroverted evidence that: 1) the SSAB had been made aware on the same day it had adjourned the matter indefinitely, that the applicant wanted to be heard the following day (September 12, 2016 telephone call and email to the director of the SSAB by counsel for the applicant); 2) the SSAB knew that this matter had “not been fully heard” because it said so in its September 23, 2016 correspondence to counsel for the respondent; and 3) notwithstanding 1) and 2), the SSAB proceeded to rule on the merits of the matter and issued its November 9, 2016 order. [ 15 ] In the result, I will grant the applicant’s motion for leave to appeal, but only on the following question of law: Did the SSAB fail to give the applicant an opportunity to be fully heard and thereby fail to abide by the rules of natural justice and procedural fairness?

CJM