Savary v. Nova Scotia (Department of Community Services), (2009) 278 N.S.R.(2d) 185 (SC)

• Judge: Murphy, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 30, 2008
• Jurisdiction: Nova Scotia
• Citations: (2009), 278 N.S.R.(2d) 185 (SC);2009 NSSC 123

Savary v. N.S. (2009), 278 N.S.R.(2d) 185 (SC);

    886 A.P.R. 185

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. JN.005

Donna Savary (applicant) v. Department of Community Services (N.S.) (respondent)

(Hfx No. 282058; 2009 NSSC 123)

Indexed As: Savary v. Nova Scotia (Department of Community Services)

Nova Scotia Supreme Court

Murphy, J.

April 15, 2009.

Summary:

The Department of Community Services advised Savary that she was ineligible for continued assistance because her assets were "greater than allowed under the program regulations." The Employment Support and Income Assistance Board denied her appeal. Savary sought a declaration that the Department and the Board erred in holding that settlement funds she received were "assets" rather than "income". She also requested a declaration that certain expenditures using those funds fell within the exceptions provided by s. 55(4) of the Employment Support and Income Assistance Regulations, and sought a certiorari order quashing the Board's decision.

The Nova Scotia Supreme Court dismissed the application. The Department and the Board applied an analysis ("reasonable dissipation") that was not authorized by s. 55(4) of the Regulations. However, the court was not satisfied that the Board's result was correct, and therefore declined to order certiorari or grant a declaration.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Nova Scotia Supreme Court considered that the Supreme Court of Canada revised the standard of review analysis in Dunsmuir v. New Brunswick (2008) - Specifically, in place of the three categories under the former "pragmatic and functional" approach to determining the standard of review, the two standards were correctness and reasonableness - The court noted the new "standard of review analysis" in Dunsmuir required the reviewing court to determine whether "the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question" - See paragraphs 7 and 8.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - The applicant, a recipient of income assistance, sought a declaration that the Assistance Appeal Board erred in holding that settlement funds she received were "assets" rather than "income" - She relied on case law that suggested review of a decision of the Board respecting a question of law was on a standard of correctness, citing Woodard v. Social Assistance Appeal Board (1983) (N.S.T.D.) and Willis v. Nova Scotia (Minister of Community Services) (2007) (S.C.) - The Nova Scotia Supreme Court stated that it "hesitated to rely too heavily on Woodard, which was decided under a different assistance regime than the present proceeding, and at a time when the law relating to judicial review was less well developed" - While Willis provided a strong basis upon which to conclude that correctness was the proper standard of review, it was decided prior to Dunsmuir (2008) (SCC) - On a weighing of the relevant Dunsmuir factors, the court was satisfied, for reasons similar to those in Willis, that correctness was the appropriate standard of review - Neither the Employment Support and Income Assistance Act or the Assistance Appeal Regulations provided a privative clause protecting decisions of the Board from judicial review - There was no dispute as to the relevant facts and no need for the Board to reach conclusions on disputed facts - The issue was fundamentally one of legal interpretation - Nor did the Board have any special expertise that supported deference on judicial review - See paragraphs 9 to 16.

Administrative Law - Topic 9116

Boards and tribunals - Judicial review - Review of administrative policy or discretion - According to the applicant, a recipient of income assistance, nothing in the Employment Support and Income Assistance Regulations (N.S.) precluded her from using settlement funds to repay debts incurred for basic needs, or prejudiced her eligibility for continued assistance - The Assistance Appeal Board stated that "policy" precluded expenditures for repaying debt - The Nova Scotia Supreme Court confirmed that a departmental policy did not have the force of law - However, the applicant failed to establish that the departmental policy of not automatically treating debt repayment as a matter of "basic need" was unauthorized by the Employment Support and Income Assistance Act or the Regulations - The Board's conclusion was correct on this point - Debt repayment was presumptively not a "basic need" expenditure - The exception might be where the debt payment was necessary in order to maintain or obtain a "basic need" - See paragraphs 26 to 28.

Social Assistance - Topic 3

General - Interpretation of legislation - The applicant was advised by the Department of Community Services that she was ineligible for continued assistance because her assets were "greater than allowed under the program regulations" - The applicant submitted that the Assistance Appeal Board applied the wrong analysis under s. 55(4) of the Employment Support and Income Assistance Regulations - The legislation permitted recipients to maintain a specified level of assets without losing eligibility for benefits - The Nova Scotia Supreme Court was satisfied that the Board's assessment of the applicant's expenditures "through the prism of 'reasonable dissipation'" was in error - "Subsection 55(4) of the regulations does not contemplate a reasonableness analysis. It speaks only of 'approved by a supervisor' with respect to shelter in clause (a) and of 'proof to the satisfaction of the supervisor that assets were spent for a purpose set out in clause (a), (b), (c) or (d).' On a plain reading of subs. (4), once the supervisor is satisfied that assets were spent for a designated purpose (and approves an expenditure for shelter), the recipient 'shall not be prejudiced.' There is no discretion to allow or disallow expenditures that fall within the designated categories on the basis of reasonableness" - See paragraphs 18 to 25.

Social Assistance - Topic 855

Claims - Benefits - Entitlement - Bars - Income of applicant - Savary, a recipient of income assistance, received settlement monies of $13,000 - She paid off various personal debts - The Department of Community Services advised her that she was ineligible for continued assistance because her assets were "greater than allowed under the program regulations" - An administrative reviewer approved certain expenditures ($2,384.08) as "reasonable dissipation" of the assets, and regarded the remaining as excess assets - Savary appealed to the Assistance Appeal Board, where she argued that some of the expenditures constituted "basic needs" and should have been allowed - The Board denied her appeal - The Nova Scotia Supreme Court declined to grant certiorari or grant a declaration that certain expenditures fell within the exceptions provided by s. 55(4) of the Employment Support and Income Assistance Regulations - Although the Board applied an analysis ("reasonable dissipation") that was not authorized by s. 55(4), the Board's result was correct - See paragraphs 17 to 32.

Social Assistance - Topic 1028

Claims - Appeal to courts or judicial review - Standard of review - [See Administrative Law - Topic 9102 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 7].

Woodard v. Social Assistance Appeal Board (1983), 64 N.S.R.(2d) 429; 143 A.P.R. 429 (T.D.), refd to. [para. 9].

Willis v. Nova Scotia (Minister of Community Services) (2007), 258 N.S.R.(2d) 116; 824 A.P.R. 116; 2007 NSSC 274, refd to. [para. 9].

Stewart v. Social Assistance Appeal Board (N.S.) et al. (2001), 193 N.S.R.(2d) 354; 602 A.P.R. 354; 2001 NSSC 65, refd to. [para. 27].

Glasgow v. Nova Scotia (Minister of Community Services) (1999), 178 N.S.R.(2d) 115; 549 A.P.R. 115; 1999 CarswellNS 234 (S.C.), refd to. [para. 27].

Borden v. Halifax (City) (1991), 109 N.S.R.(2d) 261; 297 A.P.R. 261 (T.D.), refd to. [para. 27].

Statutes Noticed:

Employment Support and Income Assistance Act Regulations (N.S.), Employment Support and Income Assistance Regulations, Reg. 184/2009, sect. 55(3), sect. 55(4) [para. 18].

Employment Support and Income Assistance Act, S.N.S. 2000, c. 27, sect. 3(a) [para. 21].

Counsel:

Vince Calderhead, for the applicant;

Terry D. Potter, for the respondent.

This application was heard in Halifax, Nova Scotia, on September 30, 2008, before Murphy, J., of the Nova Scotia Supreme Court (Special Chambers), who delivered the following decision on April 15, 2009.