Singleton v Fort Garry/River Heights (Director), 2022 MBCA 24

Citation: Singleton v Fort Garry/River Heights (Director), 2022 MBCA 24 Date: 20220216 Docket: AI21-30-09630 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN : ) A. E. M. Fenske ) for the Appellant karen singleton ) ) A. J. Ladyka (Appellant) Appellant ) for the Respondent ) - and - ) M. A.

Smith ) on a watching brief director, fort garry/river ) for the Social Services heights ) Appeal Board ) (Respondent) Respondent ) Appeal heard and ) Decision pronounced: ) February 16, 2022 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. pfuetzner JA (for the Court) : [ 1 ] Leave to appeal was granted to the appellant on one question: Did the Social Services Appeal Board (the Board) err in law by applying the wrong test in determining h er eligibility for benefits under The Manitoba Assistance Act , CCSM c A150 ( the Act )? [ 2 ] The answer, conceded by the respondent (the Director), is yes.

The issue left for this Court to determine is the proper remedy. Background [ 3 ] The appellant separated from her husband (Mr. Singleton) in 2014; however, they have not divorced. The appellant, who is disabled, received benefits under the Act on the basis of being a single person unable to earn income sufficient to meet her basic needs. In March of 2020, the appellant was facing homelessness. Mr. Singleton agreed that she could move into his home.

The appellant’s position throughout is that they have not reconciled, their relationship is akin to roommates who share living expenses and they are not spouses for the purposes of the Act . [ 4 ] After an investigation, the Director concluded that the appellant and Mr. Singleton were common-law partners, relying on both section 18(3) of the Act (which addresses the treatment of two persons who are “not legally married to each other”) and

section 8.1.4 of the program’s EIA Administrative Manual (the common-law unions policy) (see “EIA Administrative Manual”, online: <gov.mb.ca/fs/eia_manual/8.html> (date accessed 22 February 2022)). Because the appellant would not provide Mr. Singleton’s financial information to the Director, it terminated her benefits. [ 5 ] The appellant appealed the Director’s decision to the Board. The Director filed a report with the Board setting out the basis for its position that the appellant and Mr. Singleton were common-law partners (the Report).

After a hearing, at which the appellant was self-represented, the Board confirmed the decision of the Director, but on the basis of entirely different grounds. In its reasons, the Board stated: “As [the appellant] and Mr. Singleton are legally married and do not have a legal separation agreement, the provisions of The Family Maintenance Act [ The Family Maintenance Act , CCSM c F20 ] apply. Mr. Singleton has an obligation to

provide reasonable support to [the appellant].” [ 6 ] As a result, the Board agreed with the Director that the appellant was no longer a single person under the Act and that financial information for Mr. Singleton was required in order to determine her eligibility for benefits under the Act . Analysis and Remedy [ 7 ] The appellant and the Director agree, as do we, that neither it nor the Board applied the correct test to determine if the appellant was single or whether she had a spouse for the purposes of the Act . [ 8 ] The correct question to ask is whether the appellant and Mr.

Singleton were living separate and apart in the same home or whether they had reconciled and were living in a conjugal relationship as a married couple (see sections 1 (definition of “dependant”), 5(1)(

a) of the Act ; and section 1(1) of the Assistance Regulation , Man Reg 404/88R (definition of “household” and “spouse”)). [ 9 ] The sole issue for this Court to decide is the proper remedy.

Section 24 of The Social Services Appeal Board Act , CCSM c S167 states: Order of Court of Appeal 24 The Court of Appeal may (

a) quash, vary or confirm the order of the appeal board; or (

b) refer the matter back to the appeal board for further consideration in accordance with any direction of the Court. [ 10 ] The appellant asks us to quash the order of the Board and reinstate her benefits retroactive to January 27, 2021, the date they were terminated. The Director argues that we should refer the matter back to the Board for further consideration in accordance with our directions on the correct test. [ 11 ] We are not satisfied that the record contains the necessary findings and evidence to enable us to accede to the appellant’s request that we substitute our decision for that of the Board.

The Director’s investigation was conducted, and its Report prepared, on the basis of the wrong test.

Moreover, the Board’s decision was made on a different, incorrect test. [ 12 ] In these circumstances, we direct that: 1. the Director’s order cancelling the appellant’s benefits be rescinded; 2. the Director investigate and cause a new report to be prepared to allow the Board to properly assess the eligibility test set out at para 8 herein; and 3. the Board hold a new hearing and re-determine the matter applying the correct eligibility test (i.e., the test at para 8 herein) to the evidentiary record that will be before it. [ 13 ] In the result, the appeal is allowed and the matter is referred back to the Board for further consideration in accordance with these reasons.

There will be no order as to costs. JA CJM JA