Smith v. Nova Scotia (Community Services)

Smith v. Nova Scotia (Community Services) Court Supreme Court Date 2009-03-05 Citation 2009 NSSC 86 Docket Hfx 301934 Judge/Registrar/Adjudicator Scaravelli, Nicoll M. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF NOVA SCOTIA Citation: Smith v. Nova Scotia (Community Services), 2009 NSSC 86 Date: 20090305 Docket: Hfx 301934 Registry: Halifax Between: Carl Smith Applicant v. The Department of Community Services (Income Assistance) Respondent Judge: The Honourable Justice N. M. Scaravelli Heard: March 5, 2009, in Halifax, Nova Scotia Counsel: Andrew Pavey, for the Applicant Terry D. Potter, for the Respondent By the Court: (Orally) [1] This matter involves an application under Civil Procedure Rules (1972) for an Order in the nature of Mandamus compelling the Respondent, Department of Community Services to comply with an Order of the Income Assistance Appeal Board, dated September 17th, 2007. Carl Smith, the Applicant, is disabled and has been a long term recipient of income assistance benefits from the Department of Community Services. [2] Mr. Smith’s income assistance was terminated in May 2006 due to failure to disclose requested information. He re-applied for income assistance in may 2007. His application was again denied based on failure to provide requested information. He appealed the decision and the appeal was heard by the Assistance Appeal Board on September 6, 2007. The Board allowed the appeal and found that Mr. Smith was “a person in need” as defined in the Employment Support and Income Assistance Act (ESIA). The Board ordered that his assistance was to be effective the date that he was assessed which was June 27, 2007. [3] Rather than comply with the Board’s decision, the Department of Community Services in October 2007, requested further financial information from Mr. Smith. The reason, as stated in the Affidavit of Mr. Thompson, income assistance case worker, was that “after having the opportunity to review in detail the documents presented at the hearing, a number of questions arose about Mr. Smith’s income, which is another important aspect of eligibility.” [4] Mr. Smith refused to comply with the request. As a result on December 6th, 2007 the Department sent notice of ineligibility to Mr. Smith based on non-disclosure. Mr. Smith originally intended to appeal the Department’s decision. A series of correspondence followed between Mr. Smith’s counsel and Department of Community Services. Ultimately the Department was provided further information and Mr. Smith’s eligibility was reinstated from October 27th forward. However, the Department continues to refuse to reinstate eligibility from June 27th to September 7th as a period covered by the Order of the Assistance Appeal Board. [5] The issue is whether the Court should grant an Order in the nature of Mandamus compelling the Respondent to implement the Appeal Board’s decision awarding the Applicant benefits from June 27th to September 30th , 2007. [6] Our courts have repeatedly adopted the criteria from Rawdon Realties Limited v. Rent Review Commission (1982), 56 N.S.R. (2d) 403 (N.S.T.D.), where the court stated: In order for a mandamus to lie, or an order in the nature Mandamus to lie, there must be: 1. Standing, a sufficient legal interest in the parties making the application. 2. No other legal remedy, equally convenient, beneficial and appropriate. 3. A duty to the applicant by the parties sought to be coerced to do the act requested. 4. The duty owed must not be of one of a discretionary nature but may be established either at common law or statute. 5. The act requested to be done must be required at the time of the application, not at some future date. 6. There must be a request to do the act and that request must have been refused. [7] The Respondent’s position with respect to not complying with the decision of the Appeal Board is that the basis for granting the appeal was that the Applicant did not have the assets as alleged by the Department. That following the decision of the Appeal Board, the Department reviewed the documentation provided at the appeal hearing which the Department says, raised concerns about the applicant’s income. Therefore, it is argued, the Department was entitled to request further information regarding Mr. Smith’s income regardless of the decision of the Appeal Board. [8] As stated in the respondent’s brief: While the appeal board may have determined the applicant’s eligibility within the context of the information before it, the appeal board decision does not conclude the issue of eligibility. In this case, the department clearly had the right to request additional information from the applicant; especially when presented with new information at the appeal hearing that raised questions about the applicant’s finances. [9] As for the criteria for granting an order for mandamus, the Respondent’s position is that the Applicant has another legal remedy than mandamus which is an appeal of the Respondent’s most recent decision on eligibility. [10] The ESIA defines person in need as follows: 3(g) ‘person in need’ means a person whose requirements for basic needs, special needs, and employment services as prescribed in the regulations exceed the income, assets and other resources available to that person as determined pursuant to the regulations. [11] The effect of an Appeal Board decision is set out at Section 14 of the Assistance Appeal Regulations. Effect of appeal decisions 14(1) a decision of an appeal board binds both the appellant and the minister; (2) an appeal board decision is retroactive to the date of the decision that is being appealed. [12] The Respondent’s position appears to be that it can ignore an Appeal Board decision simply by demanding further information even when the Appeal Board has made a finding on eligibility. The determination that Mr. Smith was a person in need meant that he met the criteria set out in the definition that included his income assets and other resources available at the time. This information was produced at the appeal hearing. The Respondent did not request an adjournment to examine financial information. Moreover, the Respondent did not seek judicial review of the Appeal Board decision. Nowhere in the Act or Regulations is there a provision providing the Respondent is permitted to make further requests for information relating to the very subject matter the Appeal Board was dealing with. Accepting the Respondent’s position would create a situation where the Appeal Board’s decision would not bind the Department if the Department chooses to request further information. The actions of the Respondent following the Appeal Board decision amounted to a determination that the Appeal Board was wrong to make its decision as a result of lack of more information regarding Mr. Smith’s income. [13] If the Respondent had the right to ignore decisions of the Appeal Board, the Appeal Board’s function would be meaningless. [14] In Dewolf v. Halifax City) (1979), 37, N.S.R. (2d) 259: 19 It seems to me that there was a clear legal right established to have the decision of the Appeal Board enforced. The respondents have argued that the decision of the Appeal Board derogates from the requirements of the Act and the Regulations in that the Appeal Board failed to properly exercise its judicial functions under the Act in making a determination of whether the DeWolf's were ‘persons in need’ under the Social Assistance Act. Since the board so erred, the respondents argue that the provisions of regulation 36 would apply and that the Director and the Social Services Committee were entitled to implement the decision in accordance with the provisions of the Act and the Regulations. Even if it meant in this case a complete refusal and rejection of the Appeal Board's decision. 20 I cannot accept this argument because it would mean that the establishment of the Appeal Board would be meaningless. If the findings of the Appeal Board as established were subject to acceptance or rejection by that group which it was intended should implement those findings, then the whole system would break down and the appeal board would serve no useful prupose [sic] at all. I cannot believe that the intent of the legislation was to set up an Appeal Board whose decisions could be totally ignored. 21 It is my feeling that Regulation 36 was designed to apply to procedural matters where the Appeal Board perhaps made an Order providing for benefits in excess of that allowed by the Act and the Committee would adjust the benefits to fit the legislation. Insofar as the basic finding of the Appeal Board is concerned however, it seems to me that the Director and the Social Services Committee were bound by that decision and are bound by the regulations to implement that decision subject to any action the Committee might take to question the decision of the Board by way of perogative writ. 22 I have no difficulty in interpreting Regulation 36 as providing the authority to the director and the social services committee to vary an Order of the Board in certain procedural details in its implementation of that Order, but not as authority to reject the entire finding of the Appeal Board because the Committee does not agree with it. [emphasis added.] [15] The same reasoning applied by Glube, C.J.S.C. (as she then was) in Parker v. Campbell; Parker v. Director of Family Benefits (N.S.) (1987), 80 N.S.R. (2d) 361; 1987 Carswell NS 262 (S.C.T.D.): 15 The Director in the present case has taken it upon himself to decide that the finding of the Appeal Board is wrong. The DeWolf case held the Director may review for procedural errors only and may not review the Board's findings of fact or law. If the Director disputes the Appeal Board's decision, the remedy is to make an application for an order in the nature of certiorari. It is not for the Director to unilaterally decide that a review board's decision fails to comply with the Act or Regulations. That is for the court to determine. 16 Until a higher court declares otherwise, I am bound by the decision in DeWolf as is the Director whose only discretion is if the Appeal Board makes a procedural error. Such was not the case in the case at bar. When the Director takes it upon himself to overrule a decision of an Appeal Board, he is denying the applicant the right to natural justice by taking away the applicant's right to make submissions and to be heard. [16] While the above cases were decided under a different statutory scheme, these cases provide a strong basis upon which to conclude that mandamus is available in circumstances similar to that present in this application. [17] I reject the Respondent’s submission that the appropriate remedy for the Applicant is to appeal the Department’s most recent decision on eligibility. In fact the Respondent refused to comply with the decision of the Appeal Board and the Applicant should not be required to appeal the Respondent’s refusal to abide by an existing appeal decision. As to the other requirements of mandamus; the Applicant has a legal interest in the outcome of the proceeding; the duty to the Applicant arises from the Appeal Board’s decision which binds the Respondent as per the regulations; the regulations also confirm the Respondent has no discretion, either as to whether the decision is binding generally or as to the time period effected. As to timing, the Act was required to be done when the Appeal Board released its decision, retroactive to June 2007. [18] As to the requirement that a request be made, although the Applicant provided further information to the Respondent, he was consistent in his demand that the Respondent comply with the Order of the Appeal Board with respect to assistance effective June 2007. [19] Accordingly, the Court will grant the application for an Order in the nature of Mandamus compelling the Respondent to implement the Appeal Board’s decision of September 2007. The Applicant shall have costs in the amount of $750.00 exclusive of disbursements. J.