IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Ogilvie v. Nova Scotia (Community Services), 2004 NSSC 102
Date: 20040512
Docket: SH 208510
Registry: Halifax
Between:
Pearl Ogilvie - applicant
- and -
Minister of Community Services - respondent
Docket: SH 210555
Registry: Halifax
Between:
Janet Sparks - applicant
- and -
Minister of Community Services - respondent
D E C I S I O N
Judge: The Honourable Justice Suzanne M. Hood
Heard: May 12, 2004 in Chambers at Halifax, Nova Scotia
Written Release: May 28, 2004 (Oral decision May 12, 2004)
Counsel: Claire McNeil for the applicant
Terry Potter for the respondent
By the Court:
[1] As I have indicated, I have concluded that Regulation 50(1) is invalid. It provides as follows:
50(1) Net profit from a business is deemed to be at least equal to the minimum wage hourly rate for 40 hours of work per week.
[2] The regulation-making power contained in the Employment Support and Income Assistance Act, S.N.S. 2000, c.27 which is relevant in this case is s. 21(m). It provides that the Governor-in-Council may make regulations respecting the determination of the income, assets and other resources that are available to a person in need and respecting the exclusion of a principal residence from such assets.
[3] In Way v. Covert et al, [1977] N.S.J. No. 204 (CA), Justice Flinn said:
While it is true, as counsel states, that the detail, as to how the scheme of family benefits will work, is left to Regulation, it is trite law that a regulation cannot stand if it is inconsistent with its parent statute ...
He also cites Booth v. R., [1915] 21 D.L.R. 558 (S.C.C.) and The Grand Trunk Pacific Railway Co. v. The City of Forth William (1910), 43 S.C.R. 412:
The parent Statute here, the Family Benefits Act, establishes a basic standard of eligibility for benefits. It is a 'person in need' (or a 'family in need') who is eligible for benefits. The Regulations cannot be inconsistent with this basic standard of eligibility.
[4] In Gach v. Manitoba, [1973] M.J. No. 4, the Manitoba Court of Appeal said at p. 10:
In seeking, by Regulation, to make the resources of a parent part of the resources of an applicant, the Lieutenant Governor in Council was not 'carrying out the provisions of the Act', it was enlarging those provision in a material way. The Regulation sought to effect a substantial and inconsistent addition to the Act and in our view clearly exceeds the regulation-making powers accorded the Lieutenant Governor in Council by the enabling legislation.
[5] Although the regulation-making power contemplates regulations which will determine, among other things, the income of the applicant, the regulation-making power uses the word “available”. In my view, the deemed income provided for in Regulation 50(1) is not income which is “available” to the person seeking income assistance. According to the usual rules of statutory interpretation, all words used must be considered to have a meaning and the rules of statutory interpretation provide that the meaning is to be its ordinary meaning unless otherwise defined.
[6] By no means is the income deemed to be that of the applicants in this case available to them in the ordinary meaning of that word. The regulation-making power does not refer to an authority to deem income to be available. The difficulty in some cases of determining income of self-employed persons is not sufficient reason to overcome the ordinary meaning of the word “available” in terms of income in the case of self-employed persons. Furthermore, as the Supreme Court of Canada referred to in Re Rizzo and Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 which was followed in Morine v. L & J Parker Equipment Inc., [2001] N.S.J. No. 114 (a decision of the Nova Scotia Court of Appeal), benefit conferring statutes, of which this is one, are to be interpreted in a “broad and generous” manner. In the case of any doubt, the benefit of that doubt is to be given to the person seeking the benefit or to the claimant.
[7] In my view, the statute in this case does not authorize the creation of this Regulation. The Regulation in fact expands upon the provisions of the Act.
[8] Subject to certain limitations, the Employment Support and Income Assistance Act is to provide assistance to persons in need. Its purpose is set out in s. 2 as follows:
2 The purpose of this Act is to provide for the assistance of persons in need and, in particular, to facilitate their movement toward independence and self-sufficiency.
[9] Section 7(1) of the Act provides:
7 (1) Subject to this Act and regulations, the Minister shall furnish assistance to all persons in need.
A person in need is defined in s. 3(g) as follows:
3(g) 'person in need' means a person whose requirements for basic needs, special needs and employment services as prescribed in the regulations exceed the income, assets and other resources available to that person as determined pursuant to the regulations.
[10] Because of limits on eligible expenses, setting a deemed income level for self-employed persons, based upon a forty hour work week at minimum wage, eliminates most self-employed persons from eligibility for assistance or, at best, severely limits the level of assistance which they could receive. It does not seem to be in dispute that persons with income levels at the present rates, approximately $960.00 per month (minimum wage for 40 hours per week), would in most cases be ineligible for income assistance under the Employment Support and Income Assistance Act and the regulations as presently constituted. In my view, it is inconsistent with the purpose of the Act because a person otherwise in need would not be assisted. I believe very clear language would be required to produce that result and there is no such clear language in the Act. Therefore, this regulation is inconsistent with the Act because it takes away eligibility from those who would otherwise be eligible.
[11] I will now deal with the issue of the actual remedy to be granted. The remedy sought is to quash the two decisions of the two Social Assistance Appeal Boards and I order that to be done. I also declare the Regulation invalid. In terms of the specifics, the applications by both Mrs. Ogilvie and Ms. Sparks are to be considered as of the date of their original applications without regard to Regulation 50(1). I note that in Way v. Covert, Justice Pugsley ordered that Ms. Way's payments would be reinstated and even set the specific amount of the reinstatement.
[12] With respect to Mrs. Ogilvie, her application was for special needs coverage. Her application is to be considered based upon her income without regard to Regulation 50(1). However, upon looking at the file on the Ogilvie matter, it appears that there were a number of other issues that were considered there. I do not think, based upon that, I can go so far as to say that she shall be granted assistance or what the amount of it would be, as it seems to me that some of these other issues were not dealt with simply because the whole thing was disposed of on the basis of Regulation 50(1). All I will say with respect to that case is that when it is reconsidered in the future it is to be done without regard to s. 50(1) of the regulations.
[13] With respect to Ms. Sparks, her application was rejected because she was self-employed and without consideration of the income she had from self-employment. In my view, her application is, of course, to be considered without regard to Regulation 50(1) but she is to be given an opportunity to provide information on her business, or income and expenses, and the income available to her from that business, as is provided for in Regulation 47(2)(e). It provides that chargeable as income to her is one hundred percent of the net profit from the business. That is the basis on which her claim for assistance should be based.
[14] The applicants in this case seek costs. The respondent says the issue is one of public importance and there should be no costs award. The applicants are represented by Dalhousie Legal Aid and have incurred no actual out-of pocket expenses. As I indicated, one of the purposes of costs is to provide substantial but not complete indemnification of the costs of the successful party. That is not the case here but this was an important issue, it has not been previously litigated and, in view of that, I exercise my discretion to award no costs.
Hood, J.