Court of Appeal Decision of the Week

Grounds for Leave at C.A.; Common Law Relationships

Case: Harris et al v Director, Social Services Interlake Region, 2016 MBCA 83 (CanLII)

Keywords: Common Law Relationships; Social Services Appeal Board; General Assistance; The Social Services Appeal Board Act, CCSM c S167; Leave to Appeal

Synopsis:

The Applicants, Mr. Kevin Harris and Ms. Melissa Touchette, seek leave to appeal an order of the Social Services Appeal Board confirming a decision terminating payment of general assistance to both Appellants; assessing an overpayment of $20,861.39 and $15,296.19.

The “sole issue” before the Board is whether they were in a common law relationship; the Board finds they are in such a relationship as per s. 18(3) of The Manitoba Assistance Act, CCSM c A150:

Common-law relationships

18(3) Where two persons who are not legally married to each other are living together under circumstances that indicate to the director that they are cohabiting in a conjugal relationship, they shall, for the purposes of this Act and the regulations, be treated in the same manner as two persons who are legally married, and any application by either or both of them for income assistance, general assistance or shelter assistance shall be dealt with in every respect in that manner.

The Applicants submit the Board erred in relying on provisions of the Employment and Income Assistance EIA Administrative Manual without considering whether there was economic/financial interdependence or how their respective disabilities may have affected the nature of their friendship – denying their equality rights under s. 15 of the Charter.

The Court of Appeal finds the Applicants’ grounds are, “at best”, questions of mixed fact and law rather than questions of jurisdiction or points of law alone. As such, leave to appeal is denied.

Importance:

Pursuant to s. 23 of The Social Services Appeal Board Act, CCSM c S167, there is a “very limited opportunity” to appeal. Leave must first be obtained, and only on the following grounds:

  • any question involving the Board’s jurisdiction; or
  • on point of law (for the Court of Appeal, at para. 2, one which is not intertwined with factual determinations made by the Board).

Citing Klippenstein v Director, Point Douglas, 2011 MBCA 15 (CanLII) at para 2, the Court of Appeal (the Chief Justice writing) confirmed “it is not enough to simply raise a point of law or jurisdiction”. Rather, the onus rests on the Applicants to also demonstrate the issues in the case have “arguable merit” – which is to say a reasonable prospect of success and be of sufficient importance to warrant the Court of Appeal’s attention. (para. 2).

The Court of Appeal found the reasons of the Board “clearly show” it considered whether there was economic or financial interdependence; cited the evidence of such interdependence. Furthermore, a “fair reading” of the Board’s reasons demonstrate, for the Court of Appeal, that the Board had considered the Applicants’ disabilities in reaching its decision. The Court of Appeal commented on documents, signed by the Applicants, which self-identified the couple as “common law” or “long-term boyfriend/girlfriend”. (para. 6).

Citing Steffen v Bryer et al, 2004 MBCA 83 (CanLII) at para 26, 184 ManR (2d) 310, the Court of Appeal confirmed it had previously decided the question of whether two people are cohabiting in a conjugal relationship is “one of fact for the decision-maker to determine on the evidence”. Since the Court of Appeal found the Applicants’ leave application requested the Court to apply the facts to the law, the question was of mixed fact and law and not law alone, as required by the s. 23 of The Social Services Appeal Board Act, CCSM c S167. (paras. 9-10).

Counsel for the Applicants: Zilla Jones (Jones Law Office, Winnipeg)

Counsel for the Respondents: Alan Ladyka (Department of Justice, Winnipeg)

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Posted: Wednesday, September 14, 2016