Nova Scotia (Community Services) v. Cleary, 2011 NSSC 451

SUPREME COURT OF NOVA SCOTIA Citation: Nova Scotia (Community Services) v. Cleary, 2011 NSSC 451 Date: 20111206 Docket: Hfx. No. 352457 Registry: Halifax Between: Nova Scotia (Department of Community Services) Applicant v. Andrea Cleary Respondent LIBRARY HEADING Judge : The Honourable Justice Peter P. Rosinski Heard: November 9, 2011 in Halifax, Nova Scotia Subject: Administrative law / judicial review - employment support and Income Assistance Act and Regulations.

Summary: Cleary was married throughout the relevant time periods. Cleary had been paid employment assistance over a number of years and after returning to the workforce, the Department discovered that at sporadic times when she received assistance, her estranged husband lived at her residence. The Department claimed she had been overpaid and demanded approximately $24,000 being the entire amount paid to her over the time period within which her husband sporadically resided with her. An Appeal Board held that she was not “cohabiting” as defined with her husband, and therefore she had not been overpaid.

The Department sought judicial review of the Appeal Board’s decision. Issue: Did the Appeal Board err by not considering sections 7 and 15 of the Regulations, [obligation to report material changes to factors relevant to assistance eligibility and quantum] or in its definition of “cohabitation” and its application to the facts found by the board? Discussion of the appropriate standard of review applicable. Result: The Appeal Board did not err.

Although it did not expressly mention sections 7 and 15 of the Regulations, to the extent that it had to consider those sections, it must have done so given the circumstances of the case. In relation to alleged errors of law, which the Appeal Board’s

interpretation of the defined term “cohabitation” would include, the proper standard of review is correctness. The Appeal Board properly cited interpreted, and ultimately applied the definition of “cohabitation” to the facts it found.

THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET . SUPREME COURT OF NOVA SCOTIA Citation: Nova Scotia (Community Services) v. Cleary, 2011 NSSC 451 Date: 20111206 Docket: Hfx. No. 352457 Registry: Halifax Between: Nova Scotia (Department of Community Services) Applicant v. Andrea Cleary Respondent

Judge: The Honourable Justice Peter P. Rosinski. Heard: November 9, 2011, in Halifax, Nova Scotia Counsel: Ryan Brothers, for the Applicant Andrew Pavey, for the Respondent By the Court : [ 1 ] This case requires the Court to address whether estranged, yet legally married persons, can always be said to be “cohabiting” as defined in the Employment Income Support and Assistance Act and its Regulations, if they live together under one roof without any of the hallmarks of a married relationship? Background [ 2 ] Ms.

Cleary, while married to her estranged husband Blair Keizer, was in receipt of income assistance under the Employment Support and Income Assistance Act (ESIA Act) between September 2002 and January 2006. [ 3 ] Ms. Cleary started to work again on October 1, 2008. On March 20, 2011, a Department of Community Services [“Department”] Administrative Review was conducted and the reviewer concluded that Ms. Cleary was ineligible for income assistance between September 2002 and January 31, 2006 - as a result of “cohabiting” with her husband.

An overpayment notice for $34,511.95 was issued to her. [ 4 ] Thereafter, information from the Canada Revenue Agency indicated that Ms. Cleary had claimed that she was separated from her husband in 2004, therefore Ms. Cleary’s ineligibility according to the Department was re-determined to be from September 1, 2002 to November 20, 2004 and a revised overpayment notice for $24,287.42 was issued to her. The Department took the view that during the entire time period of suggested cohabitation periods Ms. Cleary was ineligible. [ 5 ] An appeal launched by Ms.

Cleary on April 21, 2011, concluded with the Assistance Appeal Board (the “Appeal Board”) deciding on June 3, 2011 that her appeal should be allowed. Although Ms. Cleary had admitted to being married to and residing with her husband, at the same address, at times, between September 1, 2002 and November 20, 2004, the Appeal Board concluded that this was not “cohabitation” as defined in s. 2(

j) ESIA Regulations which reads: “‘cohabit’ means to live together with another person as a spouse and ‘cohabitation’ and ‘cohabiting’ have corresponding meanings”. [ 6 ] “Spouse is defined in s. 2(ac) ESIA Regulations: “‘spouse’ means (

i) a husband or wife of an applicant or recipient, or

(ii) a common law partner or a same sex partner with whom an applicant or recipient is in a marriage-like relationship that is not a legal marriage.” [ 7 ] ESIA Regulations require per s. 5(1): “In order to determine the eligibility of an applicant or the ongoing eligibility of a recipient to receive assistance... the applicant or recipient shall provide the following information to a caseworker, in the case of an applicant at the time of application, or in the case of a recipient as requested at any time, during which the recipient is in receipt of assistance: (

a) where applicable, ... (

v) proof of cohabitation. ” [ 8 ] ESIA Regulations also provide in s. 6: “For the purpose of subclause 5(1)(a)(v), proof of cohabitation may be established by any relevant evidence, and shall be deemed to occur where (

a) a man and woman represent themselves to others to be husband and wife; or (

b) individuals represent themselves to others to be each other’s spouse.” [ 9 ] Department of Community Services policy (internal) 5.2.8 defines ‘cohabitation’ as: “Persons who reside together with shared financial resources such as, but not limited to, credit cards, bank accounts and loans, and who represent themselves to others to be each others spouse will be considered as a two (2) adult family unit in determining initial eligibility or ongoing eligibility.

Cohabitation is determined to exist in these situations even though there may not be a legal marriage or conjugal relationship.” [ 10 ] Regarding ESIA Regulations s. 6 and policy 5.2.8 - the Appeal Board found that: “The statutory presumption is not that married persons are deemed to cohabit... ... there was no evidence before the Board that Ms. Cleary or indeed her husband, held themselves out to others in the community as a married couple during the time period under review... Furthermore... it is important to consider that the appellant [Ms.

Cleary] has provided certain documentary information to the Department ostensibly to rebut the presumption and/or show that she was not cohabiting with her husband... none of these things are consistent with the theory of the Appellant cohabiting with Mr. Keizer.” (P. 13 Decision.)

[ 11 ] The Appeal Board found: “... it cannot be concluded on a balance of probabilities that Ms. Cleary cohabited with her husband, Blair Keizer between September 2002 and January 2006. Similarly in my respectful opinion, it cannot be concluded on the balance of probabilities that she was cohabiting with her husband between Septemer 2002 and November 2004.” (P. 2 Decision. Findings of facts.) [ 12 ] The Appeal Board elaborated: “Even accepting, as the Appellant [Ms.

Cleary] concedes, that there were a “number of separations” does such intermittent sporadic living together constitute ‘cohabitation’, as such is defined in the ESIA Regulations or as such term is legally understood? Appellant provided documentary evidence to the Department to rebut a statutory presumption found in the ESIA Regulations. Appreciating what the Board considers the state of the evidence [is] in totality, the Department has not satisfied the evidential burden it bears. ...

The evidence is quite inadequate to conclude that there was ‘cohabitation’ for any time between [September] 2002 and [November] 2004... there is no evidence on the balance of probabilities, to conclude that there was ‘cohabitation’, in the sense that the Board understands that term to be defined in the legislation.” (P. 3 Decision. Findings of fact.) [ 13 ] And later: “... there was no evidence to determine that Ms. Cleary was living with Mr. Keizer in a relationship of interdependence.

There was no evidence that the two were functioning as an economic and domestic unit - consider in this regard the Department’s policy [5.2.8]. A relationship with an estranged spouse who only lives with his spouse intermittently for brief intervals of time, apparently does not share in the burdens of childcare or pay household living expenses does not constitute “cohabitation”. [My emphasis] (P. 14 - 15 Decision analysis.) [ 14 ] The Appeal Board provided detailed factual findings and reasoning in its Decision.

Issues [ 15 ] The Department has asked this Court to conduct a judicial review of the Appeal Board’s Decision. The Department argues the Board erred:

(

i) In finding that the Respondent was not required to disclose to the Applicant that the Respondent cohabited with her husband contraryto s. 7(2) of the ESIA Regulations; (ii) in finding that the Respondent did not “cohabit” with her husband during the period in question pursuant to the ESIA Regulations; (iii) by misapplying s. 6 of the ESIA Regulations; (iv) in finding that the periods of time that the Respondent did reside with her husband had no effect on the Respondents’s eligibility. [16] These grounds were recast in the Department’s brief as: A - Did the Appeal Board err by failing to consider ss. 7 and / or 15 of the ESIA Regulations?

B - Did the Appeal Board err by finding that [Ms. Cleary] did not ‘cohabit’ with her husband at any period between September 2002to November 30, 2004 pursuant to the ESIA Regulations? (Para. 15) Standard of Review [17] At this point I should remind myself about the parameters of judicial review. I start with the Majority decision in Dunsmuir v.New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190: Issue 1: Review of the Adjudicator's Statutory

Interpretation Determination A. Judicial Review 27 As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially thatconstitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks toaddress an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in theinitiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers.

Courts, whileexercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to thenecessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated toadministrative bodies by Parliament and legislatures. 28 By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers havelegal limits, derived from the enabling statute itself, the common or civil law or the Constitution.

Judicial review is the means by whichthe courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicialreview is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes.

29 Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decisionmaker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision makertransgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or thejurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to thebody in relation to the subject matter.

This is done within the context of the courts' constitutional duty to ensure that public authorities donot overreach their lawful powers: Crevier v. Attorney General of Quebec, (SCC), [1981] 2 S.C.R. 220, at p. 234; alsoDr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. 30 In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function inmaintaining legislative supremacy.

As noted by Justice Thomas Cromwell, "the rule of law is affirmed by assuring that the courts havethe final say on the jurisdictional limits of a tribunal's authority; second, legislative supremacy is affirmed by adopting the principle thatthe concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual andpurposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledgingthat the courts do not have a monopoly on deciding all questions of law" ("Appellate Review: Policy and Pragmatism", in 2006 IsaacPitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p.

V-12).

In essence, the rule of law is maintained because thecourts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review isaccomplished by establishing legislative intent. ... 55 A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and areasonableness test applied: -- A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. -- A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). -- The nature of the question of law.

A question of law that is of "central importance to the legal system ... and outside the ...specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E.,2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62).

On the other hand, a question of law that does not rise to this level may becompatible with a reasonableness standard where the two above factors so indicate. 56 If these factors, considered together, point to a standard of reasonableness, the decision maker's decision must be approached withdeference in the sense of respect discussed earlier in these reasons. There is nothing unprincipled in the fact that some questions of lawwill be decided on the basis of reasonableness.

It simply means giving the adjudicator's decision appropriate deference in decidingwhether a decision should be upheld, bearing in mind the factors indicated. ... 62 In

summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has alreadydetermined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second,where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the properstandard of review. [per Bastarache and LeBel, JJ] [18] Very recently this approach was confirmed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General),

2011 SCC 53 : 15 In Dunsmuir and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339, the Court simplified an analytical approach that the judiciary found difficult to implement. Being of the view that the distinction between the standards of patent unreasonableness and reasonableness simpliciter was illusory, the majority in Dunsmuir eliminated the standard of patent unreasonableness.

The majority thus concluded that there should be two standards of review: correctness and reasonableness. 16 Dunsmuir kept in place an analytical approach to determine the appropriate standard of review, the standard of review analysis. The two-step process in the standard of review analysis is first to "ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.

Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review" (para. 62). The focus of the analysis remains on the nature of the issue that was before the tribunal under review (Khosa, at para. 4 , per Binnie J.).

The factors that a reviewing court has to consider in order to determine whether an administrative decision maker is entitled to deference are: the existence of a privative clause; a discrete and special administrative regime in which the decision maker has special expertise; and the nature of the question of law (Dunsmuir, at para. 55 ). Dunsmuir recognized that deference is generally appropriate where a tribunal is interpreting its own home statute or statutes that are closely connected to its function and with which the tribunal has particular familiarity.

Deference may also be warranted where a tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context (Dunsmuir, at para. 54 ; Khosa, at para. 25 ). [ 19 ] Has the jurisprudence “already determined in a satisfactory manner the degree of deference to be accorded with regard to the particular category of question(s)” in the case at Bar? [ 20 ] I conclude that the jurisprudence has done so, in relation to the Appeal Board exercising its mandate under s. 13 of the ESIA Act. [ 21 ] The Supreme Court of Canada continued on to observe: 18 Dunsmuir recognized that the standard of correctness will continue to apply to constitutional questions, questions of law that are of central importance to the legal system as a whole and that are outside the adjudicator's expertise, as well as to "[q]uestions regarding the jurisdictional lines between two or more competing specialized tribunals" (paras. 58, 60-61; see also Smith v.

Alliance Pipeline Ltd., 2011 SCC 7 , [2011] 1 S.C.R. 160, at para. 26 , per Fish J.). The standard of correctness will also apply to true questions of jurisdiction or vires. In this respect, Dunsmuir expressly distanced itself from the extended definition of jurisdiction and restricted jurisdictional questions to those that require a tribunal to "explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter" (para. 59; see also United Taxi Drivers' Fellowship of Southern Alberta v.

Calgary (City), 2004 SCC 19 , [2004] 1 S.C.R. 485, at para. 5 ). ... 21 But given the recent developments in the law of judicial review since Dunsmuir and its emphasis on the deference owed to administrative tribunals, even in respect of many questions of law, we must discuss whether all decisions on questions of law rendered by the Tribunal and similar bodies should be swept under the standard of correctness.

At this point, we must acknowledge a degree of tension between some policies underpinning the present system of judicial review, when it applies to the decisions of human rights tribunals . 22 The nature of these tribunals lies at the root of these problems. On the one hand, Dunsmuir and Khosa, building upon previous jurisprudence, recognize that administrative tribunals are generally entitled to deference, in respect of the legal

interpretation of their home statutes and laws or legal rules closely connected to them. On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, must still be reviewed on a standard of correctness , in order to safeguard a basic consistency in the fundamental legal order of our country. The nature of the "home statute" administered by a human rights tribunal makes the task of resolving this tension a particularly delicate one.

A key part of any human rights legislation in Canada consists of principles and rules designed to combat discrimination. But, these statutes also include a large number of provisions, addressing issues like questions of proof and procedure or

the remedial authority of human rights tribunals or commissions. [My emphasis] [22] And further at paras. 28 - 30: 28 In Dunsmuir, the majority of this Court described reasonableness as ... a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness:certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, theymay give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptableand rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable,referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly withthe existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned withwhether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.[para. 47] 29 Reasonableness is therefore a deferential standard that shows respect for an administrative decision maker's experienceand expertise. The concept of deference is fundamental in the context of judicial review, as this Court held in the seminal case ofCanadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227.Deference to an administrative tribunal reflects recognition of interpretive choices.

Such a recognition makes it possible to ask whetherthe tribunal or the court is better placed to make the choice (Macklin, at p. 205). 30 The concept of deference is also what distinguishes judicial review from appellate review. Although both judicial and appellatereview take into account the principle of deference, care should be taken not to conflate the two. In the context of judicial review,deference can shield administrative decision makers from excessive judicial intervention even on certain questions of law as long as thesequestions are located within the decision makers' core function and expertise.

In those cases, deference would therefore extend to protecta range of reasonable outcomes when the decision maker is interpreting its home statute (see R. E. Hawkins, "Whither Judicial Review?"(2010), 88 Can. Bar Rev. 603). [My emphasis] [23] The upshot of these decisions is to remind courts that in cases of judicial review, the standard of review must be very carefullyconsidered. [24] The case at Bar involves a review of a decision of the Appeal Board’s citation, and

interpretation of “cohabitation”, astatutorily defined term within the ESIA Regulations, and the consequent application of that definition to the facts found by the AppealBoard. Position of the parties Department of Community Services [25] The Applicant, Department of Community Services, suggests that the jurisprudence has determined that:

(

i) on the first issue [error by failing to consider s. 7 and / or 15 of ESIA Regulations] the standard of review is correctness; whereas (ii) on the second issue [error by finding that Ms.

Cleary did not ‘cohabit’ with her husband at any time between September 2002 andNovember 30, 2004] the standard of review is reasonableness, as viewed in light of the Decision as a whole, even if that issue is one ofmixed law and fact. - Paras. 23 - 24 Brief. [26] The Department relies on two recent decisions of Justice Moir, regarding the definition of “special need” in the ESIARegulations to support their position: - Legere v. Nova Scotia (Department of Community Services) 2010 NSSC 67 - Campbell v.

Nova Scotia (Department of Community Services) 2010 NSSC 166 [27] Justice Moir concluded in Legere: 9 The findings of fact of an appeal board under the Employment Support and Income Assistance Act are reviewable only fortheir reasonableness in light of the decision as a whole and the record, but an

interpretation of the statute or regulations isreviewable for its correctness: Nova Scotia (Department of Community Services) v. Brenna, [2005] N.S.J. No. 121 (S.C.) upheld onother grounds 2006 NSCA 8 , [2006] N.S.J. No. 18 (C.A.), Willis v. Nova Scotia (Department of Community Services), 2007NSSC 274 , [2007] N.S.J. No. 391 (S.C.). 10 Brenna and Willis were decided before Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] S.C.J. No. 9, but they areconsistent with the "pragmatic and functional approach" developed through the long line of cases beginning with Canadian Union ofPublic Employees, Local 963 v.

New Brunswick Liquor Corp., (SCC), [1979] S.C.J. No. 45, that now goes by the lessinteresting name "standard of review analysis": Dunsmuir, para. 63. 11 In particular, Brenna and Willis follow the basics of the functional and pragmatic approach, now the standard of review analysis, asstated in para. 64 of Dunsmuir: The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1)the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3)the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of thefactors, as some of them may be determinative in the application of the reasonableness standard in a specific case. 12 There is no privative clause protecting decisions of the assistance appeal board. 13 The board is not specialized. One who possesses the following is qualified under s. 4(4) of the Assistance Appeal Regulations, N.S.Reg. 90/2001: (

a) experience in human or social services;

(

b) an ability to conduct meetings; (

c) communication and writing skills; (

d) an ability to apply and interpret enactments; and (

e) an ability to think analytically. 14 The general purpose of the statute is to provide financial assistance to people in need. The purpose of the scheme for appeals is to adjudicate the entitlement of persons to the assistance. 15 As I said, the issues involve legislative

interpretation, the daily work of the courts, and fact finding. The legislation allows fact finding without a record. 16 So, I follow Brenna and Willis. 17 Mr. Potter argues that the issues involve mixed questions of law and fact, and the standard for those is reasonableness. In my assessment it is possible to distinguish the decision-maker's legislative

interpretation from his findings of fact and his application of the

interpretation to the facts. As such, it is unnecessary to introduce the complex concept of mixed issues into this review. See para. 164 of Justice Deschamps' dissent in Dunsmuir. [My emphasis] [ 28 ] He reiterated this position succinctly in Campbell at para. 17 . [ 29 ] In

summary, Justice Moir concluded that in relation to the ESIA Act and Regulations, the Appeal Board’s findings of fact will attract a reasonableness standard, whereas its

interpretation of statute / regulations will attract a correctness standard. Andrea Cleary [ 30 ] Ms. Cleary argues that the standard of review in this case for both issues is correctness: (

i) on the first issue [error by failing to consider s. 7 or 15 ESIA Regulations] the standard of review is correctness ; and (ii) on the second issue [error by finding that Ms. Cleary did not ‘cohabit’ with her husband at any time between September 2002 and November 30, 2004] the standard of review is correctness because the Department is not primarily asserting that the Appeal Board made a mistake as to its facts, but rather that it failed to apply the proper law (definition of “cohabitation”) to the facts.

[ 31 ] This difference of opinion between the parties as to the standard of review applicable to issues one and two is driven by their different characterizations of the “particular category of question” (per Cromwell and Le Bel, JJ in Canada (Canadian Rights Commission) 2011 SCC 53 (at para. 16 ). Specifically regarding the “cohabitation” definition, the Department views this as a primarily factual / evidence enquiry by the Appeal Board, whereas Ms. Cleary views it as a question of whether the Appeal Board applied the proper definition of “cohabitation” to the facts.

What then is the proper characterization of the particular category of question? [ 32 ] The Department argues in regard to issue number one [error by failing to consider s. 7 and / or 15 of the ESIA Regulations]: “At the core of this judicial review is whether the Appeal Board failed to consider s. 7 and / or 15 of the Regulations” - para. 56 Brief; [ 33 ] Or similarly: The crux of this matter ... is whether the Appeal Board erred by failing to consider s. 7 and / or 15 of the Regulations. Put simply, did the Appeal Board fail to consider whether unreported changes to [Ms.

Cleary’s] living circumstances between September 2002 to November 2004, affected her eligibility? - para. 42. [ 34 ] The main complaint of the Department is that the Appeal Board found as a fact that, while periodically residing with her husband between September 2002 and November 30, 2004, she did not “cohabit” with him, and yet, assuming that Ms. Cleary had an obligation to report this, she did not once do so. These two aspects of the Appeal Board Decision were conflated by the Board, leading it to overlook Ms.

Cleary’s obligation to report any changes to her living arrangements. [ 35 ] Consequently, since “it is clear from the Regulations that the income of a spouse, while living with the recipient [for any length of time] would affect his / her ‘budget deficit’ calculation, [and the eligibility or quantum of assistance for which she was eligible] the Appeal Board must have “failed to consider s. 7 or 15 of the Regulations...” [ 36 ] Ms.

Cleary argues that, while a generalized obligation exists to disclose “changes” to the recipients’: “living arrangements, employment history, health and financial circumstances” [s. 7(1) ESIA Regulations]; and that “fraud, misrepresentation, non disclosure of facts or other cause] that has resulted in assistance being improperly provided to the recipient in assistance being improperly provided to the recipient”, may result, triggering the Department of Community Services’ obligation to correspondingly “reduce, discontinue or suspend assistance” [s. 15(3) ESIA Regulations], it is not so in every case of a change in circumstances.

Specifically s. 7 only applies to existing ongoing recipients of assistance, because none of the consequences in s. 15 Regulations are applicable to past recipients such as Ms. Cleary’s. As a past recipient, s. 15 ESIA Regulations is not applicable to her, she says, but rather the focus must be on any alleged “overpayment”, and the authority of the Appeal Board in that regard is found in s. 14 ESIA Act for past recipients. [ 37 ] Ms. Cleary also argues that because eligibility for assistance is at issue, only material changes (ie. “which may affect their eligibility”) - para. 30 Ms.

Cleary’s brief) need to be reported. She argues that the onus to prove overpayment is therefore necessarily on the Department as it seeks to establish and rely on the notion that there was an “overpayment” in the case at Bar. [ 38 ] She notes that the purpose of the ESIA Act is to provide assistance to those that are eligible, and therefore “in need” by definition. Although her husband lived with her intermittently, his presence was not demonstrated by the Department to be of any material consequence to her eligibility during the relevant time period.

[ 39 ] Thus, at its core, the parties herein disagree as to what is the extent of the obligation to report in ss. 7 and / or 15 of the ESIA Regulations, and whether the Appeal Board properly considered the facts it found in that light? [ 40 ] The first issue is a question of law - involving the proper citation,

interpretation and application of law [ie. the alleged failure to consider applicable statutory/regulatory provisions]; the second issue [i.e. “cohabitation”] also involves the proper citation,

interpretation and application of law. Both attract a standard of correctness in my view. [ 41 ] While the “cohabitation” issue may arguably have two components - firstly whether the Board properly interpreted the Act and Regulations; and secondly, whether the Board properly applied that

interpretation to the facts; such disaggregation of the components of an alleged mixed law and fact error does not yet have the blessing of a majority of the Supreme Court, but the notion has been commented on in Dunsmuir , by Deschamps, J. at para. 164; Binnie, J. at para. 142 (and Le Bel and Bastarache, JJ. at paras. 66 and 71 where they do not directly address this issue). [ 42 ] In my view, the fact that the category of question would have been traditionally seen in the appeal context as one of mixed law and fact, may not be determinative in the case of judicial reviews, where a reasonableness standard of review can apply to questions of law, so also to questions of mixed law and fact.

Much will depend on the precise nature of the legal issue at play. Where here, it is the proper definition of “cohabitation”, and its application to the facts that is in issue, I am inclined to see the core issue as closer to a legal than factual issue - in the appeal context, the comments of Cromwell, J. (as he then was) in R v.

Grouse 2004 NSCA 108 at para. 43 are interesting, however I remind myself that this is a judicial review, where a reasonableness standard of review can be appropriate even for questions of law, namely those that are, not of central importance to the legal system and outside the specialized area of expertise of the administrative board.

The jurisprudence has decided the applicable standard of review. [ 43 ] I note that in a recent case regarding what is a “special need”, Justice Bourgeois agreed with Justice Moir as to the standard of review as cited by him in Legere / Campbell supra, (paras. 9 - 17 and 17 respectively) see Riley v. Department of Community Services 2011 NSSC 387 , paras. 16 and 22 . [ 44 ] Similarly, see Hood, J. in Cleary v. Department of Community Services 2010 NSSC 231 at para. 1 regarding the

interpretation of Regulation ESIA s. 69; Justice Murphy in Department of Community Services v. MacKinnon 2011 NSSC 12 paras. 8 - 13 and my similar decision in Department of Community Services v.

Boudreau 2011 NSSC 126 regarding the applicability of the ESIA Act or Social Assistance Act to persons with special need; paras. 30, 40 - 42. [ 45 ] If the Appeal Board failed to consider, when it should have, or misinterpreted or misapplied, the relevant law, such as the applicability of ss. 7 and 15 ESIA Regulations or the proper definition and applicability of “cohabitation”, then it will have made an error law; and the standard of review regarding that proper characterization of issue one will be correctness (upon which both parties agree, I might add) as I find it is for issue two as well. [ 46 ] I see the Appeal Board’s

interpretation of “cohabitation” as the determinative aspect. Though arguably not being a general legal question, but rather one specific to this Appeal Board to which a reasonableness standard of review could apply, I conclude that the jurisprudence has decided the matter of the proper standard of review. So I need not engage in a distinct analysis of the issue. Even if I am wrong, and a reasonableness standard of deference should be applied to the Appeal Board’s

interpretation and application to the facts of the definition of “cohabitation”, my conclusion herein to uphold the Appeal Board’s decision would be the same in either case. [ 47 ] I note that Department of Community Services policy 4.1.1(13) [in contrast to policy 5.2.8] also defines ‘cohabit’, in identical terms to s. 2(

j) ESIA Regulations: “Means to live together with another person as a spouse and cohabitation and cohabiting have corresponding meanings.”

[ 48 ] This is elaborated upon in s. 5(1)(e)(vi) ESIA Regulations, which requires the mandatory authorization to release information respecting the confirmation of “... living with another person in a relationship of interdependence functioning as an economic and domestic unit”; and in policy 5.2.8. [ 49 ] I note at this juncture that the policy does not add any further value to this analysis, and moreover I question whether policy is even to be considered by courts in such cases unless it carries the stamp of legislation or subordinate legislation - see Department of Community Services v.

MacKinnon supra, paras. 14 - 17 ; Dunsmuir supra paras. 27 - 29 ; and Cleary supra at para. 4 . Merits of the Judicial Review application Did the Appeal Board have to expressly consider s. 7 and / or 15 of the ESIA Regulations? [ 50 ] Ms. Cleary’s initial position is that the Appeal Board was asked to determine whether the Department of Community Services decision, that she (as a past recipient), was overpaid assistance, was “in compliance with” the Act and Regulations.

She argues that the onus to establish any “overpayment” is on the Department, and that in examining whether the Department has met that onus, the Appeal Board would necessarily have to consider the definition of “cohabitation”, but that the fact that as a recipient she may have had an obligation to report any material changes in her living arrangements pursuant to s. 7 Regulations does not place this proof of “overpayment” onus on her, rather than the Department. [ 51 ] Moreover, Ms.

Cleary argues that the Appeal Board did not need to expressly consider s. 7 or 15 ESIA Regulations, because the authority to determine and collect any overpayments lies in the ESIA, not the Regulations - para. 43 brief. [ 52 ] Nevertheless, Ms.

Cleary notes that the Appeal Board necessarily addressed the issues embedded in ss. 7 or 15 ESIA Regulations, although not directly referencing the sections, so that either the Appeal Board advertently (though not expressly) considered the sections or inadvertently did consider them by considering the issues embedded in those sections. [ 53 ] A review of some of the relevant sections of the Act and Regulations would be helpful at this stage. The ESIA Regulations [ 54 ] First I will examine ss. 3 - 9 of The Regulations which deal with “assistance” in general.

Section 5 is prefaced by a sub- heading: Additional Information required [ 55 ]

Section 5 is a list of items that “the applicant or recipient shall provide... in the case of a recipient, as requested at any time during which the recipient is in receipt of assistance: (1)(

a) where applicable, ... (v)“proof of cohabitation”;

... [ 56 ]

Section 6 reads: 6 For purposes of s. 5(1)(a)(v) “proof of cohabitation” may be established by any relevant evidence and shall be deemed to occur where (

a) a man and woman represent themselves to others to be husband and wife; or (

b) individuals represent themselves to others to be each other’s “spouse”. [ 57 ]

Section 7 reads: 7

(1) An applicant or recipient shall provide such information as a caseworker may require with respect to living arrangements... of the applicant or recipient and the spouse and dependent child of the applicant or recipient.

(2) An applicant or recipient shall give notice to a caseworker of any change that affects the information provided pursuant to ss. (1) immediately upon the occurrence of the change and the notice shall be in writing if so requested by the caseworker.” [ 58 ]

Section 11, under the sub heading “Eligibility” reads: An applicant is not eligible to receive assistance if at the time of the application, the applicant’s changeable income is equal to or greater than the applicant’s expenses. [ 59 ] Section 15(3) deals with the consequences of a failure to comply with

section 7 (ie. where there has been “fraud, misrepresentation, non disclosure of facts or other cause that has resulted in assistance being improperly provided to the recipient”), which are limited to a case worker reducing, discontinuing or suspending assistance to a recipient. [ 60 ] The Department argues that: these sections obligate Ms.

Cleary to continually report any changes to relevant eligibility criteria, especially as listed in s. 5 of the Regulations, including “proof of cohabitation”; and therefore she bears the onus of establishing her eligibility for any of the assistance received between September 2002 and November 30, 2004 as all those amounts are presumptively an “overpayment”.

The Department starts from the position that there is no presumption of entitlement to assistance and consequently the applicant/recipient always bears the onus of establishing entitlement. [ 61 ] The undisputed facts include (found by the Appeal Board) as summarized at para. 57 Department of Community Services brief: (

a) When she applied for Income Assistance Sept. 13/02, Ms. Cleary disclosed that she was separated from her husband. (

b) Ms. Cleary received Income Assistance Sept. 13/02 to 2006 [since revised to Nov. 30/04 as period of cohabitation];

(

c) Ms. Cleary was married to her husband throughout; (

d) Ms. Cleary admitted in her November 19/09 affidavit para. 9 that: “[her] marriage was difficult, with a number of separations leading to a final separation in the early part of 2006"; (

e) an April 13, 2011 Canadian Revenue Agency letter for the tax year 2003 suggested that Ms. Cleary claimed to be separated Feb. - Aug. 2003 and Oct. - Nov. 2003; (

f) Her husband lived with her, but moved out for considerable periods of time. [ 62 ] The Department submits that the Appeal Board was therefore compelled to conclude that: 1. Ms. Cleary and her husband periodically resided together between September 2002 and November 30, 2004; 2. Ms. Cleary had “cohabited” with her husband in that time period (not more precisely identified periods); 3. Ms. Cleary had an obligation to report these “changes” as they would necessarily have affected her eligibility for income assistance.

The Appeal Board consequently was in error to not have expressly considered whether the decision the Department made is in compliance in its reasons with both the Act and the Regulations, and it should have expressly referred to “the applicable provisions of this Act and the Regulations” [s. 13(4) ESIA Act]. Did the Appeal Board err in its consideration (if any) of ss. 7 / 15 ESIA Regulations? [ 63 ] A useful starting point is to examine whether these sections were drawn to the attention of the Appeal Board? [ 64 ] Ms.

Cleary says that even if the Appeal Board did not expressly refer to ss. 7 and 15 of ESIA Regulations, it did not have to do so since “the authority to determine and collect an overpayment lies in the Act and not in the Regulations” - para. 43 brief. [ 65 ] Notably in its written “submission” [Supplemental Record unsigned affidavit of Denise MacDonald-Billard] pp. 5 - 6, the Department specifically drew the Appeal Board’s attention to ss. 7 and 15 as some of the “applicable sections of the ESIA Regulations and Act”; and at Tab L [Supplemental Submission by Department of Community Services] para. 11 the Department clearly states its position that the “ESIA Act and Regulations do not have any provision that allow married individuals to reconcile for any period without their eligibility for benefits being affected”. [my emphasis] [ 66 ] Ms.

Cleary in her written submission to the Appeal Board referred the Board to the s. 7 ESIA Regulations at para. 53 brief - Tab 5; and s. 15(3) ESIA Regulations at para. 60 brief; received by the Board May 16, 2011. [ 67 ] Clearly the parties drew those sections (s. 7 and 15 ESIA Regulations) to the attention of Appeal Board. [ 68 ] On May 30, 2011, a hearing was held. On June 3, 2011, the Appeal Board rendered its decision.

[ 69 ] The Decision repeatedly cites s. 6 ESIA Regulations, which is the “deemed” cohabitation definition which the Department argued created a presumption of cohabitation in this case. The Board was well aware of the significance and application of s. 6 ESIA Regulations. [ 70 ] Although the Appeal Board did not expressly refer to s. 7 or 15 ESIA Regulations, I am satisfied on a review of the entire circumstances and the written decision as a whole that: 1. They were brought to the attention of the Appeal Board; 2. The Appeal Board was fully aware of the relevant provisions of the ESIA Act and Regulations; 3.

The Appeal Board was aware that recipients have an ongoing obligation to report material changes in their (eligibility for assistance) circumstances; 4. Having found that there was no material change in the (eligibility for assistance) circumstances of Ms. Cleary [ie. while at times her husband was living in her residence, it was not established that they were “cohabiting”] there was no obligation on her to report such non-material changes under s. 7 of The ESIA Regulations. [ 71 ] As Ms. Cleary argued, I agree that the onus is not on her to establish no “overpayment”.

Her non reporting, even if of material changes in circumstances, does not cause the ultimate onus to shift to her to demonstrate that there was no “overpayment” as defined in s. 3(1)(

f) of the ESIA Act. The Department asserted that there was an overpayment - once they have paid monies, having accepted Ms. Cleary’s entitlement to such monies, it is the Department’s onus to then establish any claimed overpayment. It is also their onus to establish “cohabitation” in the case at Bar. [ 72 ] Therefore I find that the Appeal Board did not err under s. 13(4) of the Act in not expressly referring to ss. 7 or 15 Regulations in its Decision, though I am confident that it was aware of the obligations imposed on Ms. Cleary by s. 7 of the ESIA Regulations. Did the Appeal Board err in concluding that Ms.

Cleary was not “cohabiting” with her husband between September 2002 and January 2006? [ 73 ] I find that in essence this issue involves a consideration of whether the Appeal Board properly cited, interpreted and applied the law applicable to Ms. Cleary’s eligibility for assistance between September 2002 and November 30, 2004 (or January 2006),with particular reference to the definition and applicability of the term “cohabitation”. [ 74 ] I have already concluded that the appropriate standard of review is correctness for this issue. Thus the Appeal Board must have been correct in its

interpretation of, and application to the facts of, the meaning for “cohabitation”. (

i) Did the Appeal Board cite the applicable law and interpret it correctly? [ 75 ] The Department argued that since it is undisputed that Ms. Cleary had lived with her legally married husband during the relevant time period when she received assistance, therefore she must have been ineligible for the same level of assistance for some period thereof. [ 76 ] Clearly her eligibility and level of assistance are dependent on what is her “chargeable income” [s. 2(

i) Regulations] and “expenses” [s. 2(

o) Regulations] which will combine to determine her “budget deficit” [s. 2(

g) Regulations] if any, given the other

information she is also required to provide, under s. 5 ESIA Regulations and any section 7 (1) or 7(2) changes, to assess those factors. [77] S. 5(1)(a)(

v) ESIA Regulations requires a recipient to provide “where applicable... ‘proof of cohabitation’”. [78] Although sections 5(1)(a)(v) “proof of cohabitation”; 5(1)(e)(vi) authorization for release of information “respecting theconfirmation of living with another person in a relationship of interdependence functioning as an economic and domestic unit”; andsection 6, the presumption of cohabitation where persons “represent themselves” to others as spouses, all appear at first blush to haveapplicability only to so called “common law” partners [s. 2(1)(

a) Regulations], that is not necessarily always so. [79] There is no reason why an estranged legally married couple should be excluded from being able to argue that while livingtogether they are nevertheless not “cohabiting”, in the sense the legislators intended in the ESIA Act and Regulations. While thisscenario is legally possible, it will require exceptional circumstances before it is successfully demonstrated to be so. [80] What meanings the legislators intended the relevant ESIA Act and Regulations to mean requires one to turn to the principles ofstatutory

interpretation. [81] Statutory

interpretation was recently commented on by the Court of Appeal in R v. R.V.F., 2011 NSCA 71 per Beveridge, JAat para. 29 (albeit in the context of the criminal law (i.e. Youth Criminal Justice Act and Federal

Interpretation Act): A word or phrase should not be examined in isolation, but in context and in accord with the recognized principles of statutoryinterpretation. The correct approach to statutory

interpretation is straightforward and oft repeated. Recently in Cape Breton (RegionalMunicipality) v. Nova Scotia (Attorney General), 2009 NSCA 44, MacDonald, C.J.N.S. wrote: [36] The Supreme Court of Canada has endorsed the "modern approach" to statutory

interpretation as expounded by Elmer Driedger,Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87: ... the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme ofthe Act, the object of the Act, and the intention of Parliament. See Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27 at 41; Canada (House of Commons) v. Vaid, 2005 SCC30, [2005] 1 S.C.R. 667; and Imperial Oil Ltd. v. Canada; Inco Ltd. v. Canada, 2006 SCC 46, [2006] 2 S.C.R. 447. See also: Coates v. Capital Health District Authority, 2011 NSCA 4; Nova Scotia (Health) v.

Morrison Estate, 2011 NSCA 68, at para.14. [82] As required, I will consider: 1 - what is the meaning of the text found in the Act and Regulations? 2 - What did the "legislature" intend in writing the relevant Act and Regulations as it did? What was its purpose? 3 - What are the consequences of my proposed

interpretation?

[ 83 ] Keeping in mind that the purpose of the ESIA Act and Regulations is to provide assistance to those in need, married couples are presumptively eligible as a couple; and in circumstances such as in the case at Bar, an effectively single parent should similarly be eligible. Whether, and to what extent they actually receive assistance is a very fact specific question in each case. [ 84 ] My best attempt at applying the spirit and words of the Supreme Court of Canada regarding the proper statutory construction of legislation such as the ESIA Act and Regulations leads me to conclude that “cohabit”, as defined in s. 2(

j) of the Regulations, (which reads: “means to live together with another person as a spouse”) must be interpreted as applicable to legally married and common law relationships. Moreover, whether married or not, sections 5(1(a)(v), 5(1)(e)(vi) and 6 of the Regulations are all applicable to such persons, because it may be necessary to go beyond the apparent status of persons as married or not, to properly assess their need for assistance. [ 85 ] The upshot of these observations is that Ms. Cleary is not presumptively disqualified from being included in the narrower definition of “cohabitation” as defined in s. 2(

j) Regulations: that is, as a still legally married person she, like common law spouses, can at law claim not to be “living together with another person as a spouse ”, and therefore be eligible as an effectively single parent, even though her legally married husband did live at the same address with her for some period of time. This is so if she can demonstrate that she and her husband did not live together in a relationship of interdependence functioning as an economic and domestic unit. [ 86 ] Sections 5(1)(e)(vi), 2(ja) and 2(ac) should be read harmoniously with the definition of “cohabitation” with s. 2(j).

The reality is that the ESIA Act and Regulations are intended to provide assistance to those in need. To otherwise interpret these sections would defeat that intention by slavish adherence to a strict

interpretation which is unwarranted. [ 87 ] To answer whether persons are living together with one another “as a spouse”, clearly requires an examination of the true circumstances of that “living arrangement” - whether they are “common law” partners or legally married. [ 88 ] In my opinion, the Appeal Board did not err in citation of the applicable law, or in its

interpretation of what are the parameters of "cohabitation" as defined in the ESIA Regulations. [ 89 ] The Appeal Board found here that: A relationship with an estranged spouse who only lives with his spouse intermittently for brief intervals of time, apparently does not share in the burdens of child care or pay household living expenses, does not constitute “cohabitation”.

That term connotes, as the definition in Black’s law Dictionary , supra , suggests, that there is evidence of the “mutual assumption of those marital rights, duties and obligations which are usually manifested by married people”. [ 90 ] Moreover, the Appeal Board could reasonably have concluded the facts it found in the case at Bar; and having properly applied the law to those facts, that there was not “cohabitation” as contemplated by the ESIA Regulations. [ 91 ] Ultimately an overpayment is assessed on the “chargeable income” and “expenses” of Ms. Cleary.

The Appeal Board did not err in citing as applicable the various references in the ESIA Regulations regarding “cohabitation”. Having found it was not established on a balance of probabilities that Ms. Cleary was cohabiting with her husband, the Appeal Board properly held that there was no period of ineligibility for assistance, and therefore no overpayment demonstrated by the Department. Conclusion [ 92 ] The Appeal Board cited the proper law, interpreted it correctly, and was entitled to conclude on the facts it found, which were

reasonably found so in my view, that the Department of Community Services had not, as it had the onus, established that it had made an overpayment to Ms. Cleary between September 2002 and November 30, 2004 or September 2002 and Janaury 2006. [ 93 ] I will hear the parties on costs. Ms. Cleary to file her submissions by December 12, 2011. Department of Community Services to file by December 19, 2011. J.