2020 MBCA 101, 2020 MBCA 101

Citation: Cann v Director, Fort Garry/River Heights, Date: 20201014 2020 MBCA 101 Docket: AI20-30-09510 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : nigel cann ) N. Cann ) on his own behalf (Appellant) Applicant ) ) A. J.

Ladyka - and - ) for the Respondent ) director, fort garry/river ) Chambers motion heard: heights ) September 24, 2020 ) (Respondent) Respondent ) Decision pronounced: ) October 14, 2020 mainella JA Introduction [ 1 ] This case raises issues about overpayment recovery, also known as clawback, of income assistance during the COVID-19 pandemic (the pandemic). [ 2 ] The applicant seeks leave to appeal an order of the Social Services Appeal Board (the Board).

The Board dismissed the applicant’s appeal and confirmed the decision of the Director of Assistance (the Director) to claw back $378 in income assistance benefits due to the applicant’s receipt of the Canada Emergency Response Benefit (the CERB). [ 3 ] For the following reasons, I am granting the application. Background Creation of the CERB [ 4 ] On March 25, 2020, Parliament enacted the COVID-19 Emergency Response Act , SC 2020, c 5, which contained a number of legislative measures in response to the pandemic, including enacting the Canada Emergency Response Benefit Act, SC 2020, c 5,

section 8 (the CERB Act ). [ 5 ] The CERB Act created the CERB as a temporary “income support” program to provide financial assistance to eligible workers to help offset the effects of the pandemic. The CERB consists of income support payments at a rate of $500 per week that can be received up to a maximum of 28 weeks for the period March 15, 2020 to October 3, 2020. [ 6 ] The CERB is one of the largest income support programs in Canadian history. As of September 20, 2020, there have been 8.83 million unique applicants for the CERB and $79.3 billion in benefits paid out by the federal government.

In Manitoba, there have been 275,280 unique applications for the CERB to September 20, 2020 (see Canada Emergency Response Benefit Statistics , 25 September 2020, online: Government of Canada <www.canada.ca/en/services/benefits/ei/claims-report.html> (date accessed 30 September 2020)). [ 7 ] The minister responsible for administering and enforcing the CERB Act is the Minister of Employment and Social Development (the Minister) (see sections 2, 4-5, 9-10, 12). Provincial and Territorial Claw Back of Social Assistance Due to the CERB

[ 8 ] Because of the urgency to get monies into the hands of Canadians as quickly as possible during the pandemic, there was not the luxury of time for extensive consultation between the federal, provincial and territorial governments as to how the CERB would affect provincial and territorial social assistance programs.

The result has been a patchwork of differing responses across Canada. [ 9 ] On April 2, 2020, the government of British Columbia announced that, in order to “complement the federal crisis measures to support our most vulnerable populations and ensure they do not fall deeper into poverty as a result of COVID-19,” it would temporarily exempt CERB payments from the calculation of income assistance or disability assistance ( New Emergency Supports for Province’s Most Vulnerable , 2 April 2020, online: Government of British Columbia <https://news.gov.bc.ca/21940> (date accessed 30 September 2020)).

On July 6, 2020, that temporary exemption for the CERB was made permanent (see Emergency Supports Extended for Vulnerable People , 7 July 2020, online: Government of British Columbia < https://news.gov.bc.ca/22565 > (date accessed 30 September 2020) ). [ 10 ] On April 9, 2020, the government of Newfoundland and Labrador took the opposite approach to that of British Columbia.

It announced that “individuals cannot receive both provincial Income Support and the CERB at the same time” ( Advanced Education, Skills and Labour , News Release, “ Public Advisory: Information for Income Support Clients Regarding the Canada Emergency Response Benefit ” (9 April 2020), online: Government of Newfoundland and Labrador < www.gov.nl.ca/releases/2020/aesl/0409n05/ > (date accessed 30 September 2020)).

Individuals collecting the CERB would be suspended from receiving income support immediately and, if there was an overlap of payments, there would be a dollar-for-dollar clawback from income support of any CERB received. [ 11 ] On April 13, 2020, the office of the Minister announced to the media that she had asked her provincial counterparts to not penalize individuals collecting the CERB by a claw back of social assistance (see Laurie Monsebraaten , “ Ottawa to the Provinces: Don’t Claw Back CERB for Workers on Social Assistance ”, The Star (13 April 2020), online: <www.thestar.com/news/canada/2020/04/13/ottawa-to-the-provinces-dont-claw-back-cerb-for-workers-on-social-assistance.html> (dated accessed 30 September 2020)) .

The Minister stated in the House of Commons on July 8, 2020: “It is unfair to people with disabilities that their supports are being clawed back, and I continue to advocate for that not to happen” ( House of Common Debates , 43- 1, vol 149, No 041 (8 July 2020) at 2545 (Hon Carla Qualtrough), online (pdf): House of Commons <www.ourcommons.ca/Content/House/431/Debates/041/HAN041-E.PDF> (date accessed 1 October 2020)). [ 12 ] On April 20, 2020, the government of Ontario took a different approach to that taken by British Columbia and Newfoundland and Labrador as to the treatment of the CERB for the purposes of its social assistance programs: the Ontario Disability Support Program and Ontario Works.

Ontario would treat the CERB as earned income but would exempt part of the CERB payments from a claw back of provincial social assistance with the claw-back formula being slightly more generous for a disabled person (see Laurie Monsebraaten , “ Ontario to Allow People on Social Assistance to Keep Part of Emergency Benefits ”, The Star ( 20 April 2020), online: < www.thestar.com/news/gta/2020/04/20/ontario-to-allow-people-on-social-assistance-to-keep-part-of-emergency-benefits.html > (date accessed 1 October 2020)). [ 13 ] On April 24, 2020, the government of Manitoba announced it would follow the general approach of Ontario (see Government of Manitoba , News Release, “ Manitoba to Join Ontario in Treatment of Emergency Benefit as Income ” (24 April 2020), online: <https://news.gov.mb.ca/news/?archive=&item=47622> (date accessed 1 October 2020)) .

The CERB would be treated as “earned income” but part of it would be exempt from claw back of employment and income assistance benefits.

The formula, as was applied to the applicant in this case, is that the first $200 of the CERB is exempt, as is 30 per cent of the remainder. [ 14 ] All jurisdictions in Canada have now adopted one of the three CERB claw-back models in relation to provincial or territorial social assistance: the exempt model (British Columbia, Yukon and the Northwest Territories); the full claw-back model (Newfoundland and Labrador, Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island and Nunavut); and the partial claw- back model (Alberta, Manitoba, Ontario and Quebec).

The claw-back formulas in the partial claw-back jurisdictions are all different (see Anne Tweddle & John Stapleton, “Canada Emergency Response Benefit (CERB) Interactions with Provincial and Territorial Social Assistance and Subsidized Housing Programs and Youth Aging out of Care” (20 August 2020), online (pdf): Maytree <www.maytree.com/wp-content/uploads/Policy-Backgrounder-CERB-interactions24Aug2020.pdf> (date accessed 2 October 2020)) . Claw Back of the Applicant’s Income Assistance Due to Receipt of the CERB [ 15 ] The applicant is unable to work due to his disability.

He is receiving income assistance and shelter assistance under The Manitoba Assistance Act , CCSM c A150 (the MAA ). [ 16 ] Sometime in the spring of 2020, the applicant applied to the Minister for the CERB via his online account with the Canada Revenue Agency. His application was approved and he received by direct deposit four weeks of income support payments totalling $2,000.

The applicant duly reported his receipt of the CERB to the Director. [ 17 ] In his affidavit filed on the leave application, the applicant deposes that he applied for the CERB because his understanding was that he was eligible and he was in desperate financial circumstances as the Director had “withheld” an additional allowance for the care of his service animal who needed urgent veterinary care.

In the applicant’s affidavit, there is a receipt from a veterinary hospital for the applicant dated June 1, 2020 for various treatments of the applicant’s service animal in the amount of $189.84. [ 18 ] The applicant kept $740 of his CERB payment and returned the remaining $1,260 to the federal government. [ 19 ] On June 1, 2020, the Director’s representative wrote to the applicant and advised that he “[did] not qualify for CERB” and he should return any such funds. The applicant was further told that, because he had kept $740 in CERB payments, he had been

overpaid $378 in income assistance as any money he received from the CERB is “treated as earned income”. The calculation of the overpayment was based on a formula of treating the first $200, plus 30 per cent of the remainder, as an exempt “work incentive”.

The overpayment would be recovered at $60 per month from the applicant’s income assistance (i.e., clawed back). [ 20 ] The legal mechanism for the overpayment recovery (i.e., clawback) were sections 20(1) and 20(3) of the MAA which provide: Recovery of payments made in error or on false statements 20(1) Where the government has provided or paid assistance or any income assistance, general assistance or shelter assistance to or for a person, if the assistance or income assistance, general assistance or shelter assistance, or any part thereof, would not have been provided or paid except for (

a) a false statement or misrepresentation made by the person; or (

b) an error; the government may recover from the person, or his executors or administrators, or his spouse, or the executors or administrators of his spouse, and, if the person is an infant, his parent or guardian or any person legally liable to pay his expenses, the amount of that assistance or income assistance, general assistance or shelter assistance or that part thereof as a debt due and owing from the person to the Crown.

Deductions to recover debt 20(3) Despite any other provision of this Act or the regulations, if a person who is a recipient incurs or has incurred a debt to the Crown under subsection (1) or (2), the director may authorize the deduction of an amount from income assistance, general assistance or shelter assistance paid to the person until the indebtedness is discharged.

The amount to be deducted must not be so large as to cause undue hardship to the person. [ 21 ] On June 17, 2020, the Director’s representative wrote to the applicant and advised that, if he would like his $60-per- month overpayment recovery reduced to a lower rate, he had to make this request in writing and “clearly explain” why the $60-per- month recovery rate was causing him financial hardship. [ 22 ] On July 7, 2020, the applicant wrote to the Director’s representative and said that the $60-per-month reduction of his benefits presented a hardship to him. [ 23 ] On July 15, 2020, the applicant appealed the Director’s decision to the Board. [ 24 ] In the report from the Director to the Board dated July 20, 2020, the Director’s representative advised that the applicant “did not meet the criteria for CERB and should not have applied for the benefit.” The $740 the applicant received was considered by the Director to be “earned income.” Using the “work incentive” formula, part of the CERB was exempt based on the first $200, plus 30 per cent of the remainder, but the rest was an overpayment to be recovered from income assistance.

The Director’s representative advised the Board that the applicant had told the Director that the $60-per-month clawback would cause him “hardship” but that he had not provided any explanation “as to what the hardship is.” [ 25 ] On July 28, 2020, the applicant wrote to the Director.

He said that the CERB should not be an overpayment because of the “worldwide pandemic.” He discussed a number of historic grievances and then said he did not get proper notice about the $60-per- month reduction and stated it would cause him and his service animal hardship because he is unable to obtain basic needs on a reduced budget. [ 26 ] On August 6, 2020, the Board heard the applicant’s appeal of the Director’s decision.

In confirming the Director’s decision, the Board decided that: (1) the applicant was not eligible for the CERB; (2) there had been a correct assessment of the overpayment; and (3) the applicant had not demonstrated that the $60-per-month recovery of the overpayment would cause him hardship. [ 27 ] The applicant has written to and attempted to speak to a representative of the Canada Revenue Agency to seek guidance about his receipt of the CERB without success. He advised it is simply impossible to get an answer from the federal government despite his best efforts.

His difficulty in dealing with the federal government is complicated by his personal circumstances which I will discuss in more detail later. Discussion Standard on Leave to Appeal [ 28 ] Section 23(1) of The Social Services Appeal Board Act , CCSM c S167 (the SSABA ) , provides a limited right to appeal an order of the Board:

Appeal to Court of Appeal 23(1) Any party to the appeal before the appeal board may appeal the board’s order to The Court of Appeal on any question involving the board's jurisdiction or on a point of law, but only after obtaining leave to appeal from a judge of The Court of Appeal. [ 29 ] The test for leave to appeal an order of the Board is well-settled. The applicant must raise a question involving the Board’s jurisdiction or of law, which excludes any issue that is intertwined with a factual determination by the Board.

The question must also be of sufficient importance to merit the attention of the province’s highest court, meaning that resolution of the issue must have importance not only to the immediate case, but to other similar disputes which are likely to arise. Finally, the applicant must demonstrate that the issue raised has arguable merit, that is to say a reasonable prospect of success.

A question of jurisdiction or of law will have a reasonable prospect of success where, taking into consideration the relevant standard of review, the issue cannot be dismissed on a preliminary examination; it requires a more thorough inquiry by a panel of the Court of Appeal (see Klippenstein v Director, Point Douglas , 2011 MBCA 15 at para 2 ; Harris et al v Director, Social Services Interlake Region , 2016 MBCA 83 at para 2 ; Harder v Director Fort Garry/River Heights , 2017 MBCA 11 at para 13 ; and Stadler v Director, St Boniface/St Vital , 2018 MBCA 103 at para 26 ). [ 30 ] As Freedman JA explained in Harder v Manitoba Public Insurance Corp et al , 2012 MBCA 20 ( Harder (MPIC) ), the Court also retains a residual discretion on any question of leave to “consider the overarching concern for the interests of justice; specifically whether denial of leave could result in an injustice” (at para 13).

That residual discretion has been accepted to be available for determinations under section 23(1) of the SSABA (see Harder (MPIC) at para 13; Thomas v Director, Employment and Income Assistance Programs , 2013 MBCA 16 at para 21 ; Murray v Director, Employment and Income Assistance, Seven Oaks , 2014 MBCA 110 at para 17 ; and Canadian Multicultural Disability Centre Inc v Director, Child and Family Services , 2017 MBCA 29 at para 3 ).

Determination of Eligibility for the CERB by the Board [ 31 ] As part of its reasons confirming the decision of the Director under section 20(1) of the SSABA , the Board said in its reasons that it has “heard a number of CERB-related appeals” and then proceeded to set out the relevant eligibility criteria for the CERB. The Board stated that it is “evident” that the applicant does not meet three of the eligibility criteria for the CERB and that CERB applicants must attest to the eligibility criteria.

The Board then stated, “Therefore, the Board determines that the Department correctly assessed the overpayment.” [ 32 ] According to the CERB Act , determinations of eligibility for the CERB are based on an application to the Minister and the Minister determining whether the applicant meets the statutory definition of a “worker” under the CERB Act (section 2; also see sections 5-6).

No other decision maker in relation to matters involving the CERB is identified in the CERB Act . [ 33 ] If a person is not eligible for the CERB, based on the statutory criteria, the Minister may determine if “a person has received an income support payment to which the person is not entitled, or an amount in excess of the amount of such a payment to which the person is entitled” (section 12(1)). [ 34 ] At first blush, the potential error of the Board making commentary about CERB eligibility appears to be a question of jurisdiction.

However, true questions of jurisdiction are rare in the administrative law context. [ 35 ] The better way of looking at the issue here is whether the Board mischaracterised the proper legal test in determining the appeal of the Director’s decision to claw back the applicant’s income assistance by considering an irrelevant factor— CERB eligibility.

That is a question of law (see Housen v Nikolaisen , 2002 SCC 33 at paras 33-36 ). [ 36 ] By its own admission in the reasons it provided, the Board is regularly considering the question of eligibility to receive the CERB in appeals of decisions of the Director to claw back income or general assistance; thus, there is sufficient importance to the correctness of the legal standard the Board is applying to warrant the attention of the province’s highest court. [ 37 ] Finally, there is arguable merit to the applicant’s position.

It appears from the wording of the CERB Act that the Minister has the exclusive responsibility to determine eligibility for the CERB. It may very well be the case that the applicant was not entitled to receive the CERB, but there is a reasonable prospect of the applicant satisfying a panel of this Court that his CERB entitlement is a matter between him and the Minister; the Board cannot consider CERB eligibility in its decision making in the manner that it did.

The applicant was entitled to have his appeal “dealt with according to the legislation, and not determined on irrelevant criteria” ( Ginter v Director, Employment and Income Assistance , 2003 MBCA 36 at para 17 ) .

Treatment of the CERB as “Earned Income” Instead of “Income Support” [ 38 ] With his usual candour, and in the best traditions of fair advocacy by Crown counsel, counsel for the Director advised the Court at the hearing that his understanding of what is going on in Manitoba in relation to the claw back of income assistance is that it is a “policy” of the Director to treat the CERB as “earned income.” [ 39 ] The formula the Director uses for claw back of income assistance due to receipt of the CERB has not been specifically created in a regulation. It flows from the Director’s

interpretation of the MAA and the Manitoba, Assistance Regulation , Man Reg 404/88R (the EIA Regulation ) . [ 40 ] The MAA does allow for the creation of rules, by way of regulation, as to what income and financial resources are exempt from the calculation of income assistance and how the amount of income assistance is calculated. Sections 19(1) (

c) and 19(1) (

d) allow for regulations: (

c) prescribing rules for determining the income and financial resources of applicants or recipients and providing that certain income or classes of income shall be excluded from, or included in, the calculation of the income and financial resources of an applicant or recipient;

(

d) prescribing rules for determining the amount of income assistance or general assistance that a recipient is entitled to receive and fordetermining whether an applicant is entitled to receive any income assistance or general assistance. [41] It is instructive to compare the approach being taken in Manitoba with that being followed in Ontario.

In Ontario, theclaw-back formula is a matter of specific laws created during the pandemic as opposed to the Manitoba approach of a policy as to theinterpretation of the law that existed prior to the pandemic. [42] The Ontario government prescribed the claw-back formula it decided to use for the CERB in relation to both of itssocial assistance programs (Ontario Works and the Ontario Disability Support Program) with specific new regulations: OntarioRegulation 168/20,

section 1 (made under the Ontario Works Act, 1997, SO 1997, c 25); and Ontario Regulation 169/20,

section 1 (madeunder the Ontario Disability Support Program Act, 1997, SO 1997, c 25). [43] In both of these Ontario regulations, there is a formula set out as to what portion of a CERB payment is to be considered“income” for the purpose of calculating assistance.

Also, in both cases, the calculation rules were made retroactive to March 1, 2020 sothat there is no confusion that anyone collecting social assistance and the CERB in Ontario is subject to a claw-back formula. [44] There is an EIA Regulation that sets out the calculation rule for determining the amount of income assistance or generalassistance where the recipient has employment earnings: 8(4) In calculating the financial resources of an applicant or recipient, the following earnings are not to be included: (

a) up to $200 of net monthly earnings, plus 30% of net monthly earnings in excess of $200 for each employed or self-employed personin a household who has been enrolled for one month or longer; (

b) up to $200 of net monthly earnings for each employed or self-employed person in a household who has been enrolled for less than30 days. 8(5) In subsection (4), “net monthly earnings” means (

a) monthly employment earnings less compulsory payroll deductions; or (

b) monthly self-employment earnings less self-employment expenses approved by the director. [45] The parties have differing characterisations of the CERB. The Director describes the CERB as “earned income”. Theapplicant sees it as something different. The CERB Act describes the CERB as an “income support payment”. What, if any, are theconsequences of this distinction for the purposes of the calculation of income assistance (or general assistance) is a question of statutoryinterpretation. [46] The

interpretation of legislation is a question of law. Because the Board is characterising the CERB as earned income,the dispute here transcends the interests of the applicant. It is a question of general importance as many Manitobans similarly situated tothe applicant are affected in a like manner by the Board’s reasoning.

The real issue here is whether there is arguable merit to theapplicant’s position that the CERB was not treated correctly by the Board for the purposes of the calculation of income assistancebecause the CERB is not truly “earned income” given it is a temporary benefit to address the effects of the pandemic. [47] In Boles v Director, River East/Transcona, 2019 MBCA 65, leMaistre JA reviewed in detail the relevant principles ofstatutory

interpretation in relation to the MAA and the EIA Regulation (at para 23): . . . The applicable principles include the following: •

Section 6 of The

Interpretation Act [CCSM c I80] mandates that, “Every Act and regulation must be interpreted as being remedialand must be given the fair, large and liberal

interpretation that best ensures the attainment of its objects.” • The modern approach to statutory

interpretation requires that, “the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo& Rizzo Shoes Ltd (Re), (SCC), [1998] 1 SCR 27 at para 21, quoting Elmer A Driedger, Construction of Statutes, 2nded (Toronto: Butterworths, 1983) at 87; see also Manitoba Housing v Amyotte et al, 2014 MBCA 54 at paras 50-52).

• The entire context of a provision must be considered before determining whether it is reasonably capable of multipleinterpretations. Ambiguity results only “where a statutory provision is subject to differing, but equally plausible,

interpretations” (BellExpressVu Limited Partnership v Rex, 2002 SCC 42 at para 62; see also para 29). • When interpreting legislation, Charter [Canadian Charter of Rights and Freedoms] values are considered only where there is a“genuine ambiguity” (ibid at para 62). • Any ambiguities in social welfare legislation “should be resolved in favour of the claimant” (Finlay v Canada (Minister ofFinance), (SCC), [1993] 1 SCR 1080 at 1114, quoting Abrahams v Attorney General of Canada, (SCC), [1983] 1 SCR 2 at 10). [48] In Boles, the Board gave careful and comprehensive reasons interpreting the relevant legislation in light of the record toarrive at a conclusion that the receipt of an income replacement indemnity payment as a result of a car accident was properly deductedfrom the recipient’s monthly income assistance.

Given that reasonableness was the applicable standard of review by the Board of thelegislation in question at the time Boles was decided, my colleague stated she was not “persuaded that there is an arguable case ofsubstance that the Board’s

interpretation of its legislation does not fall within a reasonable range of possible outcomes or

interpretations”(at para 31). [49] The circumstances here are different for two reasons. [50] To begin, the nature of the Board’s reasons here are unlike in Boles. What is before the Court are generic reasons thatexplain nothing about the Board’s view of why the CERB should be treated as earned income.

In its reasons, the Board states, “Aftercareful consideration of the written and verbal evidence submitted to it, the Board determines that the Department has calculated [theapplicant’s] overpayment recovery rate according to legislation, regulation and policy.” [51] All the Board said was that, because the applicant was not eligible for the CERB, the overpayment was “correctlyassessed”. The relationship between CERB eligibility and whether the CERB is “earned income” is not apparent to me.

Clarity isimportant because there must be some legal basis for benefits to be recovered before sections 20(1) and 20(3) of the MAA can operate.

As Kroft JA explained in Kostiuk v Manitoba (Employment and Income Assistance, Winnipeg Central District) (1997), (MB CA), 153 DLR (4th) 54 (Man CA), “benefits otherwise payable can only be decreased (that is treated as an overpayment)when an individual has wilfully failed to fulfil his or her statutory obligation or has received more benefits than he or she was lawfullyentitled to” (at p 61). [52] The other difference between this case and Boles is that the applicable standard of review of the Board’s

interpretationof the relevant legislation has changed due to the decisions of Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC65; and Bell Canada v Canada (Attorney General), 2019 SCC 66. [53] The applicant is seeking to obtain leave to challenge the Board’s order on the basis of a statutory appeal mechanismprovided for in section 23(1) of the SSABA on a “question involving the board’s jurisdiction or on a point of law”. Appellate standards ofreview would therefore apply to the Board’s statutory

interpretation relating to treatment of the CERB, if leave is granted (see Vavilov atparas 36-52; and Bell Canada at para 34). [54] In

summary, in Boles, the Court was faced with clear and comprehensive reasons and a deferential standard of review ifleave was granted on the question of statutory

interpretation. The situation here is the opposite. The Board’s reasons are generic andopaque and the standard of review, if leave is granted, will be correctness on the question of statutory

interpretation. [55] I am reminded of this Court’s comments in Custovic v Manitoba (Director, Employment & Income Assistance), 2009MBCA 86, that “this . . . legislative scheme [relating to income assistance and general assistance] is designed to assist the mostvulnerable in our society” (at para 33).

In my judgment, it is in the public interest that there be clarity as to whether or not such animportant legislative scheme is being administered within the confines of the law during a state of emergency that exists as a result of thepandemic. [56] Given that there are a large number of vulnerable persons being affected by the treatment of the CERB for the purposesof income assistance and general assistance based on a “policy,” which the Board has not justified with any reviewable reasoning, I amnot satisfied that the issue can be dismissed on a preliminary examination; it requires a more thorough inquiry by a panel of the Court ofAppeal.

I am satisfied that the applicant has a reasonable prospect of success on this important question of law if leave to appeal isgranted. Hardship of the Clawback to the Applicant [57] In his submission, the applicant provided the Court with a dystopian picture of his life when the pandemic first reachedWinnipeg. He is an anxious person who is wary of people generally.

The fear of the pandemic exacerbated his situation as he had towander the empty streets of Winnipeg with his service animal, searching for bleach and toilet paper—items that, at the time, weredifficult to find. [58] The Director asked the applicant for specifics of why the clawback would cause him hardship. He did not provide any. He submitted that the Director knew full well his personal circumstances because he has been on income assistance for many years andthat should have been sufficient evidence of hardship.

He also relies on his letter to the Director of July 28, 2020 that the $60-per-monthclawback takes away a sizeable amount of his budget for him and his service animal.

[59] In its reasons, the Board considered the issue of hardship but decided that the applicant had not proven that theclawback was causing hardship. [60] The issue for the Court is not whether I agree or disagree with the Board’s view of the sufficiency of the evidence ofhardship; rather, does the Board’s conclusion on hardship raise a question of jurisdiction or law? [61] The question of whether the applicant faces hardship because of the claw back of income assistance is a matterintertwined in the facts in the Board’s determination. At best, it is a question of mixed fact and law.

Accordingly, on the basis of section23(1) of the SSABA, it is not a matter on which leave to appeal could normally be granted. [62] I have considered whether this is such an exceptional case that I should exercise my discretion where the denial of leavecould result in an injustice. I do not think it is appropriate to do so because, if the order of the Board was not otherwise tainted by legalerror, no injustice could result from the Board’s findings as to hardship.

Other Concerns [63] In his affidavit and submissions, the applicant also raised a series of complaints as to how he has been treatedhistorically in terms of his shelter allowance and a general lack of accommodation in terms of his disability. A document from theDirector in the applicant’s affidavit indicates that the applicant has trouble budgeting and he needs to take greater care to live within hisallowance. The Board rejected the applicant’s other concerns (unrelated to the clawback arising from the CERB) as not being properlybefore it or relating to issues it had previously decided.

I see no basis to grant leave to appeal on the other concerns raised by theapplicant. Conclusions [64] Leave to appeal is granted on the following questions:

(1) Did the Board err by considering the applicant’s entitlement to the CERB in reviewing the decision of the Director to claw back$378 of income assistance benefits?

(2) Did the Board err in its treatment of the CERB for the calculation of the applicant’s income assistance benefits? [65] The Board did not appear on the leave application but requested notice in the event that leave to appeal was granted. Idirect the registrar to provide a copy of my reasons to counsel for the Board. [66] One of the realities here is that, by the time the applicant’s appeal is heard and determined, he will have had his incomeassistance clawed back in full.

His appeal right would be frustrated. [67] By virtue of section 7(1) of The Court of Appeal Act, CCSM c C240, I have the authority to order a stay if it is in theinterests of justice to do so (see Klippenstein v Manitoba Ombudsman, 2015 MBCA 15 at paras 33-34). [68] I do not have the position of the parties as to whether a stay is appropriate in light of the relevant standard set out inManitoba (Attorney General) v Metropolitan Stores Ltd, (SCC), [1987] 1 SCR 110 at 129; and RJR — MacDonald Inc vCanada (Attorney General), (SCC), [1994] 1 SCR 311 at 334. [69] I am, however, aware of a number of factors relevant to the tripart test for a stay, such as the arguable merits of theapplicant’s case, the delays that will likely occur before the appeal is heard and determined, and the fact that the clawback does affectthe lifestyle of the applicant in more than a minimal way. [70] I am also aware that, in addition to the applicant’s physical disability, his mental state impairs his ability to fullyadvance his case.

Information in the applicant’s affidavit from his psychiatrist confirms that the applicant suffers from a “MajorDepressive Disorder and Generalized Anxiety Disorder.” He has “[d]ifficulty with social interactions related to high anxiety,forgetfulness—including basic instructions” which impair his ability to do basic activities.

The applicant’s psychiatrist goes on to saythat, for the applicant, “Simple transactions are difficult and either take an inordinate amount of time or are avoided altogether.” Theapplicant’s health and safety are “compromised due to forgetfulness.” [71] The proportionate and just action at this time is to ensure that the applicant’s appeal is not frustrated by delay. [72] Accordingly, subject to either the Director or the Board requesting a hearing on a stay within two weeks of thesereasons, I will grant a stay of the order of the Board and the decision of the Director to recover an overpayment from the applicant at therate of $60 per month until the appeal is determined by this Court. [73] Should either the Director or the Board oppose a stay being granted, a time should be arranged with the applicant andthe registrar before me as soon as possible. [74] During the hearing, the applicant advised that he has had Legal Aid counsel assist him on previous appeals to theBoard.

It is in everyone’s best interests that the applicant have counsel on this matter. Accordingly, I direct the registrar to send a copyof my reasons to Legal Aid. The applicant should also contact Legal Aid directly. [75] There will be no order as to costs.

JA