Falkiner et al. v. Director of Income Maintenance (Ont.) et al., (2000) 136 O.A.C. 100 (CA)

• Court: Court of Appeal (Ontario)
• Case Date: July 13, 2000
• Jurisdiction: Ontario
• Citations: (2000), 136 O.A.C. 100 (CA)

Falkiner v. Income Maintenance Dir. (2000), 136 O.A.C. 100 (CA)

MLB headnote and full text

Temp. Cite: [2000] O.A.C. TBEd. JL.059

Sandra Falkiner, Deborah Sears, Cynthia Johnston-Pepping and Claude Marie Cadieux (appellants/respondents in appeal/respondents to motion) v. Director, Income Maintenance Branch, Ministry of Community and Social Services and Attorney General of Ontario (respondents/ appellants/moving parties) and Canadian Civil Liberties Association (intervener)

(M26102/M26092)

Indexed As: Falkiner et al. v. Director of Income Maintenance (Ont.) et al.

Ontario Court of Appeal

Osborne, A.C.J.O.

July 24, 2000.

Summary:

The Ontario Divisional Court, in a decision reported at (2000), 134 O.A.C. 324, held that the definition of "spouse" contained in s. 1(1)(d) of Regulation 366 under the Family Benefits Act was un­constitutional. The court did not include a temporary sus­pension of its decision. The appellants, the Minister of Community and Social Services and the Ontario Attorney General, sought leave to appeal the decision and requested a stay pending determination of the leave motion and, if granted, the appeal.

The Ontario Court of Appeal, per Osborne, A.C.J.O., stayed the decision on the condi­tion that, so long as the stay remained in effect: (a) the Ministry would not refer for prosecution any new cases involving welfare fraud allegations based on s. 1(1)(d) and would attempt to ensure that no charges were laid by the Crown; and (b) the Ministry would attempt to ensure that any pending welfare fraud charges based on s. 1(1)(d) were adjourned or stayed by the Crown.

Practice - Topic 8952

Appeals - Stay of proceedings pending appeal - When appellant entitled to stay - The definition of "spouse" contained in s. 1(1)(d) of Regulation 366 under the Fami­ly Benefits Act was declared un­constitutional - The Minister of Com­munity and Social Services and the Ontario Attorney General sought a stay pending their motion for leave to appeal and the appeal - They claimed irreparable harm to the public interest based on administrative inconvenience and associated financial costs - The Ontario Court of Appeal, per Osborne, A.C.J.O., considered the risk of financial hardship to those deemed ineli­gible or those who could face welfare fraud prosecutions - The court stayed the deci­sion, but on the condition that: (a) the Ministry would not refer for prosecution any new cases involving welfare fraud allegations under s. 1(1)(d) and would attempt to ensure that no charges were laid by the Crown; and (b) the Ministry would attempt to ensure that any pending welfare fraud charges for welfare fraud under s. 1(1)(d) were adjourned or stayed by the Crown.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - [See Practice - Topic 8952 ].

Social Assistance - Topic 4

General - Application of legislation - [See Practice - Topic 8952 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114, refd to. [para. 5].

Manitoba (Attorney General) v. Metropol­itan Stores Ltd., [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 18 C.P.C.(2d) 273; 38 D.L.R.(4th) 321, refd to. [para. 5].

Wellcome Foundation Ltd. v. Novopharm Ltd., [1992] 45 C.P.R.(3d) 202; 59 F.T.R. 81 (T.D.), refd to. [para. 9].

Mushkegowuk Council v. Ontario (1999), 126 O.A.C. 285 (C.A.), dist. [para. 14].

Horsefield v. Registrar of Motor Vehicles (Ont.) (1997), 102 O.A.C. 285; 35 O.R.(3d) 304 (C.A.), refd to. [para. 19].

Statutes Noticed:

Family Benefits Act Regulations (Ont.), Regulation 366, sect. 1(1)(d) [para. 4].

Counsel:

Janet E. Minor, for the appellants, Director of Income Maintenance et al.;

Barnet Kussner and Kim Mullin, for the respondents, Falkiner et al.;

Martin Doane, for the intervener.

This motion was heard on July 13, 2000, by Osborne, A.C.J.O., of the Ontario Court of Appeal, who delivered the following endorsement on July 24, 2000.