Court of Appeal grants leave to appeal Charter issues in income assistance benefits caseStadler v Director, St Boniface/ St Vital, 2018 MBCA 103 (CanLII)
Keywords: Leave to appeal; Income Assistance Benefits; s. 15 of the Charter
The Applicant is physically disabled. He cannot work. Instead, he receives income assistance under the Manitoba Assistance Act, CCSM c A150. Section 12.1(2) of the applicable Regulation (Man Reg 404/88R) includes an obligation to make “…all reasonable efforts…to obtain the maximum amount of compensation, benefits or contribution to support and maintenance that may be available under another Act or program, including an Act of Canada or a program provided by the Government of Canada.”
After the Applicant turns 60, the Respondent Director, St. Boniface/St. Vital requires him to apply for Canada Pension Plan (CPP) benefits. He decides not to do so. His thinking: if he waits until he turns 65, the benefits would be greater. Pursuant to s. 12.1(4) of the Regulation, the Respondent Director suspends the Applicant’s income assistance. The Applicant then,
- applies for CPP;
- has his income assistance reinstated; and
- appeals the decision of the Respondent Director to suspend in the first place.
The Applicant’s appeal is to the Social Services Appeal Board. The Board dismisses the appeal and finds it does not have jurisdiction to entertain the Applicant’s s. 15 Charter arguments. On appeal to the Court of Appeal, the Court determines that the Board must consider the principles of the Charter (see Stadler v Director, St Boniface, 2017 MBCA 108 (CanLII)). The Board considers s. 15 of the Charter but comes to the same conclusion: “Section 12.1(2) of [the Regulation] does not violate the Section 15 equality rights of [the applicant].”
The Applicant seeks leave to appeal and the Court of Appeal decides that leave should be granted in this matter.
This decision is important because it affirms the import of the Charter in decisions of the Social Services Appeal Board. It also clarifies the applicable test for leave to appeal in the Court of Appeal for Manitoba and provides a clear example of judicial restraint. Here, Hamilton J.A. declined to wade too far from shore, judging it more appropriate to set out the applicable question for the full Appeal panel’s consideration.
Citing Pelchat v Manitoba Public Insurance Corp and Automobile Injury Compensation Appeal Commission, 2006 MBCA 90 (CanLII); Winnipeg Airports Authority Inc v EllisDon Corp, 2011 MBCA 51 (CanLII); Stadler v Director, St Boniface, 2016 MBCA 37 (CanLII); and Harder v Director Fort Garry/River Heights, 2017 MBCA 11 (CanLII), the Court of Appeal set out the criteria for granting leave to appeal as follows:
- leave is granted only for a question of law or jurisdiction (as stated at s. 23(1) of The Social Services Appeal Board Act, CCSM c S167);
- there must be an “arguable” case with a “reasonable” prospect of success; and
- the question must raise an issue warranting the attention of the Court or which “…will assist in determining similar disputes.” (See paras. 14-15).
The Court of Appeal noted that, as it would be granting leave to appeal in this case, its reasons would be “…intentionally brief”. (See para. 9). That being said, the Court elaborated upon its second stated criteria (i.e. whether the Applicant has raised an arguable case) and set out at length Justice Abella’s articulation of the “analytic approach required” for a s. 15 analysis in Kahkewistahaw First Nation v Taypotat, 2015 SCC 30 (CanLII) – which case Supreme Advocacy LLP argued (successfully, for the Appellant). (See paras. 24-25).
For the Court of Appeal, the Applicant’s s. 15 question required thorough examination and would more appropriately be conducted by a panel of the Court. (see para. 26, citing Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (CanLII) at para 74).
Accordingly, the Court concluded the Applicant’s appeal warrants the attention of the Court and set out the question to be addressed as follows:
“Did the Board err in concluding that section 12.1(2) of the Regulation does not violate the equality rights of the applicant under section 15 of the Charter?” (See para. 27).
Counsel for the Applicant: Karen Burwash (Peter J. Moss, Law Office, Winnipeg)
Counsel for the Respondent: Alan Ladyka (Department of Justice, Winnipeg)
Counsel for the Attorney General of Manitoba: Deborah Carlson (Department of Justice, Winnipeg)
On a watching brief for the Social Services Appeal Board: Vivian Rachlis (Thompson Dorfman Sweatman LLP, Winnipeg)