Nova Scotia (Community Services) v. Brenna

Nova Scotia (Community Services) v. Brenna Court Court of Appeal Date 2006-01-18 Citation 2006 NSCA 8 Docket CA 247979 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Chief Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA); Cromwell, Thomas A. (Honourable Justice) Document Type Decision Relations Library Sheet - Nova Scotia (Community Services) v. Brenna - 2006 NSCA 8 - 2006-01-18 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Nova Scotia (Community Services) v. Brenna, 2006 NSCA 8 Date: 20060118 Docket: CA 247979 Registry: Halifax Between: Anthony Brenna Appellant v. Her Majesty the Queen in Right of the Province of Nova Scotia, as represented by the Minister of Community Services Respondent Judges: MacDonald, C.J.N.S.; Cromwell and Saunders, JJ.A. Appeal Heard: January 18, 2006, Halifax, Nova Scotia Written Judgment: January 18, 2006 Held: Appeal dismissed per oral reasons for judgment of Cromwell, J.A.; MacDonald, C.J.N.S. and Saunders, J.A. concurring. Counsel: Graham Steele, for the appellant Terry Potter, for the respondent Reasons for judgment: [1] This is an appeal from an order of Edwards, J. which quashed a decision of the Assistance Appeal Board and remitted the matter to a differently constituted Board for re-hearing. [2] While we do not accept the judge’s reasons for his decision, we agree with his result. I should add that we have had submissions and authorities drawn to our attention which were not before the judge. [3] The issue before the Board was whether the Department had been justified in discontinuing Mr. Brenna’s benefits and finding an overpayment on either of two bases: (i) that he failed to disclose his ownership of certain real property; and, (ii) that he had refused to provide additional financial information or a proper authorization for the Department to obtain it when such had been demanded. The Board’s obligation was to “ ... determine the facts and whether the decision made, on the basis of the facts found by the board, [was] in compliance with ...[the Act] ...”: s. 13(2) Employment Support and Income Assistance Act, S.N.S. 2000, c. 27. Where the Board determines that the decision is contrary to the Act and the regulations, it is to vary or reverse the decision in accordance with the Act and the regulations: s. 13(3). [4] It is apparent from the reasons of the Board that it failed both to make critical findings of fact and to reach conclusions about how the Act ought to be applied to the facts. It did not make a finding as to whether Mr. Brenna failed to disclose his ownership of property or whether he had failed to provide financial information when it was demanded. It did not determine whether the decision was contrary to the Act and the regulations. The Board thus, in our view, failed fundamentally to discharge the tasks assigned to it under ss. 13(2) and 13(3) of the Act. On any standard of review, that is a reversible error. The appellant says in his factum that the test on judicial review is whether the tribunal did its job. In this case, the Board did not do the job assigned to it by the Act. [5] The appeal is dismissed without costs. As Edwards, J. ordered, the matter will be remitted to the Board, differently constituted, for a new hearing. Cromwell, J.A. Concurred in: MacDonald, C.J.N.S. Saunders, J.A.