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GOVERNMENT ASSISTANCE PROGRAMS - Social assistance - Recovery from recipient - Overpayments

Monday, November 16, 2020 @ 9:03 AM  

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Application by Cann for leave to appeal an order by the Social Services Appeal Board confirming a decision to claw back income assistance benefits. The applicant received provincial income and shelter assistance benefits due to his inability to work caused by a disability. In 2020, the applicant applied for and obtained a Canada Emergency Response Benefit (CERB) totalling $2,000. He reported his receipt of the CERB to the provincial Director. The applicant deposed he required additional assistance for urgent veterinary care of his service animal. The applicant kept $740 of the CERB and returned the remainder to the federal government. The applicant subsequently received notice from the provincial benefits provider that he did not qualify for CERB and that he consequently had received an overpayment of $378 in provincial benefits based on the CERB being treated as earned income. The Director proposed recovery through a $60 per month reduction in future benefits. The applicant indicated that the proposed reduction would result in hardship and appealed. The Board confirmed the Director’s decision and ruled that the recovery of the overpayment would not cause the applicant hardship. The applicant sought leave to appeal to the Court of Appeal.

HELD: Application allowed. An arguable ground was raised over whether the Minister, as opposed to the Board, had exclusive responsibility to determine eligibility for the CERB. The correctness of the Board’s characterization of the CERB as earned income raised a question of general importance that was in the public interest given the state of emergency caused by the pandemic. The Board’s reasons were not clear on the relationship between CERB eligibility and its status as earned income, which was relevant to the issue of the legal basis for recovery of an overpayment. The applicant had a reasonable prospect of success on the issue. The Board’s conclusion on the issue of hardship was a question of mixed fact and law and therefore was not a matter on which leave to appeal could be granted. Leave to appeal was thus granted on the issue of whether the Board erred in considering the applicant’s entitlement to the CERB and erred in its treatment of the CERB for calculating the applicant’s provincial benefits. The Board’s decision was stayed pending determination of the appeal.

Cann v. Fort Garry/River Heights (Director), [2020] M.J. No. 237, Manitoba Court of Appeal, C.J. Mainella J.A., October 14, 2020. Digest No. TLD-November162020001