MacInnis v. Nova Scotia (Community Services)

MacInnis v. Nova Scotia (Community Services) Court Supreme Court Date 2014-11-26 Citation 2014 NSSC 422 Docket Syd 423672 Judge/Registrar/Adjudicator Murray, Patrick J. (Honourable Justice) Document Type Decision Relations Library Sheet - MacInnis v. Nova Scotia (Community Services) - 2014 NSSC 422 - 2014-11-26 - Library Sheet Decision Content SUPREME COURT OF Nova Scotia Citation: MacInnis v. Nova Scotia (Community Services), 2014 NSSC 422 Date: 20141126 Docket: Syd. No. 423672 Registry: Sydney Between: Emma Lorraine MacInnis Applicant v. Nova Scotia (Department of Community Services) Respondent Revised Decision: The text of the original decision has been corrected according to the attached erratum dated December 2, 2014. Judge: The Honourable Justice Patrick J. Murray Heard: October 6, 2014, in Sydney, Nova Scotia Oral Decision: October 17, 2014 Written Decision: November 26, 2014 Counsel: Emma Lorraine MacInnis, self-represented Adam Neal, for the Respondent, Nova Scotia (Department of Community Services) By the Court (Orally): Introduction [1] This is an application for judicial review. The Applicant is Emma Lorraine MacInnis. The Respondent is Nova Scotia Department of Community Services. The Applicant is seeking a review of the decision of the Department. [2] That decision found that Emma Lorraine MacInnis was no longer eligible to receive income assistance because she had received unreported income. She was unable to provide an explanation that satisfied the Department or provide the information they requested of her to support her position. Her position is that she had receipts to verify the transactions and in particular, the deposits in her bank account. [3] The appeal hearing was held on December 10, 2013. The decision of the Appeal Board denying her benefits was dated December 11, 2013. [4] The period for which she was denied benefits based on the eligibility review was between January, 2011 and May, 2012, a period of 29 months. [5] The Applicant had been in receipt of income assistance during this period. Following a review, the Department determined that Ms. MacInnis was in receipt of unreported “chargeable income” during that period and had liquid assets. [6] The Respondent terminated the income assistance. Ms. MacInnis appealed the decision to the Assistance Appeal Board. [7] At the appeal hearing the Appellant provided information to the Board and attempted to show that she did not have chargeable income or liquid assets; the income was from her daughter, she said, which was for payments of her daughter’s bills and to deposit money and pay bills for other family members. [8] The Appeal Board rejected the Applicant’s appeal and upheld the decision, that she did not provide the required information, thus making her ineligible for income assistance. [9] At the crux of the Appeal was the Respondent’s ability or lack of ability to explain the deposits to her bank account at RBC, including the bills which she said were paid, not on her behalf, but on behalf of others, whom she was asked to help. [10] These included her daughter, her granddaughter and, her father (who recently passed away), and others. [11] The Applicant is disabled and claims to have a poor memory. She has stated this is due to a brain injury, which has affected her ability to recall and thus explain clearly, her financial situation and that of her family members. [12] There is no question on the record before me, that the Applicant’s finances were intertwined with several others, and that unravelling the account so as to come up with a clear picture, was and is a daunting task. [13] Ultimately, the Department found she did not meet the minimum requirements expected of any person receiving income assistance, to report a change in her circumstances, and to explain and account for her income. [14] The Appellant submits, through no fault of her own, she was unable to do that. The Appeal Board, she says, did not assist her. She provided the information necessary to explain the transactions in her bank account but the Board did not go further to assist her in bringing the information forward. [15] If they had, she submits, there would be no chargeable income. [16] In failing to do so the Board erred, submits the Applicant. [17] As a result, the Applicant submits the Board’s decision is reviewable as it was incorrect in law and unreasonable in respect of the Board’s findings. [18] In total there are seven (7) Grounds upon which the Applicant seeks a judicial review. Those grounds are as follows: 1. The Assistance Appeal Board did not making findings of fact that were reasonable in light of the decision as a whole. 2. The Board failed to interpret the Statute and Regulations correctly. 3. The Board failed to correctly apply the law in its review of the evidence presented to it by the Applicant. 4. The Board did not consider the evidence provided by the Applicant with regard to monies received and did not consider the individual transactions to determine whether or not any over payment had been made. 5. The Board mistakenly determined that monies received by the Applicant was chargeable income to the Applicant. 6. The Board erred by determining that the Applicant had a dependent child or was receiving money from a dependent child. 7. The Board erred by not reviewing documents in possession of the Applicant, available at the time of the hearing. [19] I will address these Grounds of Appeal in this decision. Before doing so, I will state that I do not intend to be lengthy in my decision and do not intend to belabour the reasons for my decision. [20] First, I am satisfied that the appropriate standard of review has already been decided by the jurisprudence. The appropriate standard of review in this matter is “reasonableness”. [21] In reaching that conclusion I rely primarily on the decision of Fichaud, J.A. in Jivalian v. Nova Scotia (Community Services), 2013 NSCA 2, a case submitted by the Respondent, at paragraphs 13 and 14. I have also read and considered the decision of Rosinski, J.A. in Nova Scotia (Department of Community Services) v. Cleary, 2011 NSSC 451at paragraphs 17 to 47, and in particular paragraphs 29, 43 and 46, as well the decision of Bourgeois, J. in Nova Scotia (Department of Community Services) v. MacInyre, 2012 NSCA 106. [22] These decisions reach different conclusions on the standard of review, but I am satisfied that Jivalian provides the appropriate guidance in this case, due mainly to the Board here reviewing its own (“home”) statute and the regulations pursuant thereto. [23] None of the exceptions which would suggest the standard of correctness, as alluded to in the Supreme Court of Canada cases of (Canada Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3S.C.R. 471 and Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] s S.C.R. 654, are present here. [24] Turning next to the decision of the Appeal Board in this matter, the Employment Support Income Assistance Act, S.N.S. 2000, c.27, has a provision which states in fact what the Appeal Board’s decision must contain. [25] The “Powers and Duties” of the Appeal Board are contained in paragraph 13 of the Employment Support Income Assistance Act. [26] Notably, section 13(4) states that a decision of the Board shall contain the facts found by the Board, a statement of the issue in the Appeal, the applicable provisions of the Act and the Regulations, and a statement of the reasons for the Board’s decision. [27] The decision of the Board does contain findings of fact. A key finding is that Ms. MacInnis was unable to account for all deposits made to the bank. [28] The decision, also, makes a finding that a portion of the money deposited to her account was used for home improvements. It finds that receipts were not provided to verify these improvements. [29] This finding appears to be in error. It is noted in the Step 1 - Administrative Review, that receipts totalling $7,389.03 representing home repair costs on behalf of the Applicant’s daughter were provided to the Eligibility Review Officer (ERO). They may not have been provided at the appeal hearing itself, but they were verified in the record at Tab 3 under the Summary and Recommendation of Ms. Caverzan, the ERO. [30] The decision does not contain a statement of the issue “per se” under a separate hearing “Issue”. The decision does, however, at the outset, under the heading “Introduction” state that a decision was made to discontinue assistance to Ms. Lorraine MacInnis for, and then in bold in the decision, “failing to provide requested information”. In my view this was intended to identify the main issue, namely, failure to provide requested information. [31] The decision does reference numerous provisions of the Act and Regulations states that the Board found were applicable. [32] Once again, in my view, not all of the applicable regulations were contained in the Decision. As an example, there is Regulation 7(1) which requires a recipient to provide such information as a caseworker may require with respect to, among other things, the recipient’s financial circumstances. There is also section 7(2), which requires a recipient to give notice to a caseworker of any change that affects the information provided, which would include financial circumstances. [33] I note, however, that these sections were appropriately referred to in the Eligibility Review by the ERO. [34] I note also that the Appeal Decision did cite sections of the Act and the Regulations with similar requirements and sanctions for not complying, such as Regulation 15(3) and 15(4) which require assistance to be discontinued where there has been: 1) non-disclosure; and 2) a change in circumstances that relates to a recipient’s eligibility. [35] Finally, the decision does include a statement of the reasons of the Board, which are summarized in the Conclusion portion of this Decision. [36] I note upon my review that there is arguably more than one reason given by the Board for its decision: 1) non-disclosure; and 2) chargeable income. It states the decision appealed from was failure to provide requested information. A second issue therefore not cited as such; was chargeable income. [37] It states Ms. MacInnis shows excess chargeable income in her bank account. [38] Having considered this I find one issue relates to the other. This means failure to provide information has resulted in chargeable income. [39] Although there are these shortcomings in the decision, I do not consider them to be serious enough, to warrant of themselves, that the decision be quashed. [40] The standard of reasonableness is one of the deference. On these points or flaws I have mentioned, I find they are not so serious so as to render the decision unreasonable or outside the range of possible outcomes. [41] It is clear from the Act and Regulations that a recipient of assistance had a duty to report, and that failing to meet that duty could and in some cases will, result in the recipient being declared ineligible for assistance. [42] In this case that occurred due to a failure to report and account for chargeable income, the latter which is deemed to include 100% of unearned income received by a recipient, (in this case Ms. MacInnis), pursuant to Regulation 47(1)(c). [43] I turn now to my decision with respect to the Grounds for Review. [44] Having reviewed the record, the submissions on appeal, the oral submissions, the Grounds for Review and all relevant file materials I find as follows. [45] With respect to the Grounds for Review as contained in the Application for Judicial Review, I find there is no merit to grounds 1, 2, 3, 4 and 6. [46] Subject to my discussion in relation to grounds 5 and 7, I find that the Appeal Board made reasonable findings of fact, reasonably interpreted the statute and regulations, and applied the law in a reasonable manner, to the evidence before it. [47] Further, the Board considered the monies received and, within reason, the individual transactions in assessing whether there was an overpayment. [48] Upon my review with respect to Ground #6, the Board’s finding was that it was Ms. MacInnis as Recipient, not a dependent child that was in receipt of 100% of unearned income. [49] It is in respect to Grounds for Review in #5 and #7 that I have concerns whether the Appeal Board acted reasonably, having regard to the circumstances of the Applicant. [50] Ground #5 reads as follows: The Board mistakenly determined that monies received by the Applicant was chargeable income to the Applicant. [51] Ground #7 reads as follows: The Board erred by not reviewing documents in possession of the Applicant available at the time of the hearing. [52] It is evident from the vast materials provided by the Applicant in Tab 5 of the Record, that she made considerable efforts to account for the income shown as received by her in her bank account. [53] It is further evident from the Record that she had few accounts in her own name. For example, Nova Scotia Power, Eastlink, and other institutions were not in her own name. There is a letter from her daughter, Lorraine Carey, confirming her mother was paying bills for her such as heat (oil) and electricity, in addition to the “property renovations.” [54] The lack of these accounts in her name, coupled with evidence in the bank statements that these bills were being paid only supported, to some extent at least, the Applicant’s position on the appeal, that she was paying others’ bills with the income in her account. [55] There is no question that Ms. MacInnis fell short in explaining these matters. The decision says so. In particular, the statements do not reflect the significant rent payment of $600.00 per month, to any degree. [56] In this respect, the decision of the Appeal Board was entirely reasonable. [57] Still, I have grave concerns as to whether Ms. MacInnis was able to fully convey and explain all of the documentation which she provided. The decision itself states she did not. [58] On the one hand, Ms. MacInnis acknowledged she did not provide all the receipts needed to reconcile her bank account. The Board recognized however, the importance of providing some assistance when it said. “It is not possible for these calculations to be done to assist her without receipts.” [59] On the other hand, Ms. MacInnis states, and this is contained in the decision, that she could not remember where the monies from her bank account were spent. This could be due to her disability and/or her injury which she claims prevented her from giving a full explanation. [60] In her rebuttal memorandum, she stated at paragraph 11: “I do suffer from a mental disability that stops me from comprehending things.” [61] Failure to account for the rent is a glaring omission in that it represents a substantial and important aspect of the monthly assistance. I do note however, that the decision reflects that she advised that oil bills were paid in lieu of rent, but that there was no record of any cheques. The receipt for oil in Tab 5 showed it was paid by cash and that there are eight (8) more receipts. Was Ms. MacInnis mistaken as to how she paid the oil bills, which she said were in excess of $5,000.00? [62] Public monies place some extra emphasis on accountability. The Applicant was entrusted with the confidence of others to care for and manage their money, and so there must at a minimum, have been a level of competency in the Applicant by those that knew her well, to manage such things. [63] The issue however is, is the decision of the Board is reasonable? [64] The Applicant submitted in legal argument that the onus is on the Department to establish that there was an overpayment. The Department did so in their decision, prior to the Appeal. It concluded that there was $16,900.23 in funds for which verification was not provided. The information the Department of Community Services requested was to establish proof of the reasonable disposition of the monies in the Applicant’s bank account. [65] The decision held and found the information was not forthcoming. [66] It cannot be said for these reasons, that the decision was unreasonable. There are however, other aspects of the Record that suggest it would have been reasonable for the Respondent and perhaps the Board, to assist the Applicant further in reviewing the documentation she provided, so as to assess and re-calculate the overpayment. [67] Included in those materials are cheques payable to her father for his pension. This supports her position. Included as well are cheques from her daughter, two of those for $500.00 combined for a deposit of $1,000.00 – one of the sums which as mentioned in the decision the Applicant was unsure of. [68] There was an amount of $800.00 which was said to be the amount payable to the Applicant’s daughter’s tenant at the apartment in Sydney Mines, according to the letter on file from the tenant. [69] Let me be clear. It was perhaps unwise for the Applicant to do what she did in trying to help all of these people. In the process she harmed herself, it seems. [70] Let me be clear again, none of this on its face would explain the Applicant’s first statement of fact which was simply that the money was there for “home improvements”, period. [71] I am not suggesting that the procedure on Appeal lends itself to assisting the Appellant or that the Board was in a good position to verify the Applicant’s documents for her. [72] In the end however, I think an injustice could be avoided if a recalculation of the Applicant’s entitlement can be achieved from this process. One can see how or why the Appellant might have been confused, as she says she was. [73] The Applicant sought an order, in the alternative that the decision be quashed and the Board directed to recalculate the Applicant’s entitlement to income support, based on the documents she provided. [74] In order to quash the decision I must find it to have been unreasonable. The policy of the Department as cited in the Decision states at 5.17.3 that assistance will be discontinued where there has been non-disclosure of facts or other cause that has resulted in assistance “being improperly provided to the Respondent”. [75] The key words of the Respondent’s policy, as cited in the decision are: “assistance being improperly provided to the Respondent”. [76] I am satisfied on the Record that until a recalculation is completed, it cannot be said that the Applicant was improperly provided assistance. [77] Without a recalculation, the decision to rely on Regulation 47, which deems that 100% of unearned income is chargeable income, was unreasonable, in my respectful view. [78] I am therefore allowing the Application for Judicial Review, and directing by order that a recalculation of the Applicant’s entitlement be completed, preferably by the Eligibility Review Officer, who is familiar with this matter. [79] It may result that the conclusion will be the same. However, it will serve to “clear the air” and provide due process to the Applicant. [80] In reaching this decision, I am mindful of the Affidavit of Ms. Caverzan filed on the motion for fresh evidence, which said that Ms. MacInnis was treated fairly in all respects. I accept that and do not fault the Board in that regard, in any respect. [81] I have been persuaded however, by the sincerity of the Applicant and her Reply Memorandum in which she described her difficult circumstances. [82] The purpose of the Act is to facilitate the movement of persons in need toward independence. As Rozinski, J. stated, in Cleary a “slavish adherence” to the provisions therein, cannot always achieve that end. [83] In my respectful view, this is one of those cases. On the record before me it appears that the Applicant was attempting to assist others in need, in particular her own family. Conclusion [84] In conclusion, Civil Procedure Rule 7 deals with Judicial Review. Pursuant to Rule 7.11, I may grant any order that will give effect to my decision on Judicial Review, including a direction under Rule 7.11(c). [85] I am therefore allowing the Application, quashing the Board’s decision and directing that Ms. MacInnis’ entitlement to income support be recalculated by the Respondent. [86] This concludes my decision in this matter. Murray, J. SUPREME COURT OF Nova Scotia Citation: MacInnis v. Nova Scotia (Community Services), 2014 NSSC 422 Date: 20141126 Docket: Syd. No. 423672 Registry: Sydney Between: Emma Lorraine MacInnis Applicant v. Nova Scotia (Department of Community Services) Respondent ERRATA TO DECISION DATED OCTOBER 17, 2014 Judge: The Honourable Justice Patrick J. Murray Heard: October 6, 2014, in Sydney, Nova Scotia Written Release: Date of Erratum to Decision: November 26, 2014 ddddddNovember December 2, 2014 November 25, 2014 PLEASE NOTE Erratum: At Page 4, Paragraph 21 (in line 4), the name “Rozinski” shall be replaced with the name “Rosinski”. And at Page 4, Paragraph 21 (in line 4) the name Bourgeois, JA” shall be replaced with the name “Bourgeois, J”.