Coins and dollar bills.

Cann v Director, Fort Garry/River Heights, 2020 MBCA 101 & 2021 MBCA 75

Case Reporter

Written by Nick Noonan

One of the more intriguing pandemic-related pieces of jurisprudence had surprisingly little to do with business law, but is worth profiling nonetheless, given its unique nature. The case (two cases in the same matter, heard a year apart because of various appeals before being finally disposed of) revolves around an appeal by Nigel Cann against a decision of the Director of Fort Garry/River Heights, concerning the clawback of $378 from Cann’s monthly income assistance benefits because he received a payment under the Canada Emergency Response Benefit (CERB) program.

Cann, a person with a disability receiving income assistance for over 10 years, applied for and received a CERB payment of $2,000 in the spring of 2020. He kept $740 of the payment and returned the balance to the federal government. The Director treated Cann’s CERB payment as “earned income” and applied an exemption of $362, considering the remainder of $378 as a financial resource that reduced Cann’s income assistance. The Director advised Cann that his income assistance benefits should have been reduced by $378 for the month of May and that the overpayment would be recovered through deductions from his future income assistance benefits at the rate of $60 per month.

The Court faced two main issues. First, did the Board err by considering Cann’s entitlement to the CERB in reviewing the decision of the Director to claw back $378 of income assistance benefits? Second, did the Board err in its treatment of the CERB for the calculation of Cann’s income assistance benefits?

The policies on CERB clawback across Canada represent an inconsistent patchwork. British Columbia, Yukon and the Northwest Territories do not impose a clawback. Newfoundland and Labrador, Saskatchewan, New Brunswick, Nova Scotia, Prince Edward Island and Nunavut use a full-clawback model. Ontario, Alberta, Quebec and Manitoba employ a partial clawback policy, though they all differ. The Federal government has asked provinces not to impose a clawback.

Cann’s application for the CERB was driven by his understanding of eligibility and desperate financial circumstances, including the province’s withholding of an additional allowance for his service animal’s care. The Director of Assistance for River Heights and Fort Garry ordered the clawback of $378, leading to Cann’s appeal to the Social Services Appeal Board, which confirmed the Director’s decision. Cann, representing himself, sought leave to appeal to the province’s appeal court.

The provincial authorities argued that the Board did not err, confirming the treatment of the $740 as “earned income,” subject to clawback according to “work incentive” provisions. This calculation allowed Cann to keep $362, but the remaining CERB payment of $378 reduced Cann’s income assistance benefit.

In granting leave, Justice Mainella noted the “patchwork” of policies across Canada regarding CERB clawbacks. The Manitoba approach treated the CERB as analogous to “net monthly earnings,” using an overpayment calculation based on a formula treating the first $200, plus 30% of the remainder, as an exempt “work incentive.”

Justice Mainella highlighted that Cann’s case raised important questions about the Social Services Appeal Board’s decision to uphold the $378 clawback. The differing characterizations of the CERB, described by the Director as “earned income” and by the Canada Emergency Response Benefit Act as an “income support payment,” raised questions of statutory interpretation. The real issue was whether the CERB was not truly “earned income” given its temporary nature to address the pandemic’s effects.

Cann, now assisted by a Legal Aid lawyer, argued that the Social Services Appeal Board erred by focusing on his eligibility for the CERB, rather than considering whether the $740 was exempted from the calculation of financial resources under the Manitoba Assistance Act [MAA]. He contended that the $740 was a “liquid asset” and should not have affected his monthly income assistance benefit payment.

The Court of Appeal hearing panel agreed with Cann’s argument, ruling that the $740 was a liquid asset and should have been exempted from the calculation of financial resources. Justice leMaistre noted that it was a one-time payment and did not have “the character” of regularity. The panel also ruled that the board erred in its decision on Cann’s entitlement to the CERB, focusing on whether the $740 was a financial resource as defined by the MAA.

The decision in Cann’s case offers a detailed exploration of the legal challenges surrounding the CERB and its interaction with provincial income assistance programs. It underscores the importance of precise statutory interpretation and the need to consider the specific provisions and intentions of the relevant legislation.

However, the judgment may also invite reflection on the broader implications of the decision. The court’s ruling, while legally sound, raises questions about the potential inconsistencies in the treatment of emergency benefits across different jurisdictions. The case highlights the challenges of applying traditional legal interpretations to unprecedented government programs and serves as a reminder of the multifaceted nature of legal interpretation. The decision’s focus on the specific provisions of the MAA, while necessary for the resolution of Cann’s appeal, leaves open broader questions about the adaptability and responsiveness of the legal system in times of crisis. It stands as a testament to the complexity of legal decision-making in a rapidly changing social and economic landscape, and the ongoing challenge of balancing individual rights, statutory provisions, and broader policy considerations.

The views and opinions expressed in the blogs and case reporter are the views of their authors, and do not represent the views of the Desautels Centre for Private Enterprise and the Law, the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.