Nova Scotia Court of Appeal – Housing

Citation: G.(R.) v Nova Scotia (Department of Community Services), 2018 NSCA 69 (CanLII)

Excerpt follows // Emphasis added   Link to full decision on CanLII http://canlii.ca/t/ht66k


[36]         Apart from the discretion found in s. 46, G.(R.) qualified for total assistance of $810 per month to cover her basic needs, including shelter. However, she was unable to secure housing that met her health needs caused by her medical condition.

The Board’s decision

[37]         The Board determined that s. 46 of the Regulations provided discretion to further increase G.(R.)’s shelter allowance. The Board found an increase was necessary to protect her health and safety. For convenience, I repeat s. 46:

46  A supervisor may exempt an applicant or recipient from the provisions regarding the calculation of the budget deficit where a supervisor considers it necessary to

[clause 46(a) repealed: O.I.C. 2011-308, N.S.Reg. 251/2011]

(b) protect the health or safety of an applicant or recipient, or dependent child or spouse of an applicant or recipient; or

(c) preserve the dwelling of an applicant or a recipient.

[38]         The Board’s findings of fact and reasons are as follows:

[ . . . ]  She has been diagnosed with the medical condition of multiple chemical sensitivities. Because of her disability she was approved a shelter allowance of $535 per month pursuant to s. 45 of the Regulations. G.(R.) reported having difficulty finding an apartment that accommodated her medical needs. In April 2016 she advised DCS that she wished to move into an apartment with monthly rent of $850 and electrical costs of approximately $40 per month. She requested a higher shelter allowance to accommodate the rent at the new apartment. DCS denied this request on April 13, 2016. G.(R.) appealed the decision. On May 10, 2016 the decision was upheld by DCS on the basis that G.(R.) did not qualify for an exemption for barrier-free access. The decision notes that “although the Department does acknowledge the diagnoses of multiple chemical sensitivities, it does not provide incremental shelter funding for this diagnosis through regulations of (sic) policy”

The normal calculation of the applicant’s budget deficit would be calculated under Regulation 45, as a diagnosed disable (sic) individual. Regulation 46 however allows a supervisor to exempt a recipient from the provisions regarding the calculation of the budget deficit when it’s necessary to protect the health and safety of the recipient.

Regulation 46 clearly identifies that there will be circumstances where in the case of the Health and Safety of a person there may be a need to expand or have allowances to the calculations of needs if the health and safety of an individual are in danger.

Therefore when a need arises that is unique and the Health and Safety of an individual is affected there must be a mechanism for the department to deal with this. Regulation 46 isn’t one that is expected to be used to override or supersede regulations that are in place to deal with every circumstance. When a client supplies well documented medical information that clearly shows that a major health concern and long term impact to health is at risk the board believes there must be a way for the department to address these concerns. In the appellants case the needs for accommodations are numerous, unique and well out of the norm for her to be safe and healthy.

Regulation 46 allows for a supervisor to exempt an applicant or recipient from the provision regarding the calculation of the budget deficit if it is necessary to protect the health and safety of the applicant or recipient. In order for the health of the appellant to be protected due to a unique medical condition that requires specific accommodations.

The Board finds that the budget required by the appellant exceeds the maximum of $535 and should be covered at $850 per month; the appellant has provided medical documentation to fully support this need.  The appellant also paid 50% of the rent as a damage deposit and she hasn’t claimed a damage deposit in the past so she should therefore be reimbursed for the damage Deposit in the amount of $425, as per Policy 6.2.29 “An applicant/recipient may be eligible for security/damage deposits, under the following circumstances:

  1. The health and safety of the client/family is in question.

[ . . . ]

[39]         I note that the Board refers to “health and safety” conjunctively; however, s. 46 reads “health or safety”. Nothing turns on this, I simply point out that the terms are disjunctive. It appears obvious that in this case, the Board was satisfied the increase was necessary to meet both G.(R.)’s health and safety needs.

Decision of the reviewing judge

[40]         Next, I turn to the reasons of the reviewing judge. She asked herself this question:

[39]  What is a reasonable interpretation of the phrase “A supervisor may exempt an applicant or recipient from the provisions regarding the calculation of the budget deficit” as set forth in s. 46 of the Regulations?

[41]         Her reasoning came down to this:

[45]  A reasonable interpretation of s. 46 is that it allows a supervisor to deem a recipient or an applicant to have a budget deficit.  Having a budget deficit means that that individual may access allowances and special needs in stated circumstances; i.e. where it is necessary to do so to protect the health or safety of the individual, or his or her dependent child or spouse or to preserve the individual’s dwelling.  In other words, an applicant or recipient who is not then a “person in need” may nonetheless be provided with assistance.

[47]  G.(R.) is a person in need of assistance.  She does not need to be deemed so.  G.(R.) has no chargeable income.  Section 45 of the Regulations sets out an exhaustive list of the circumstances where a person may have an increased shelter allowance, and the maximum of that increase is to $535.  G.(R.) has allowed expenses for shelter in the maximum amount of $535.

[48]  The Board’s interpretation of s. 46 has the effect of removing the regulatory cap on shelter allowances, a result inconsistent with the scheme of the Act as a whole.

[50]  I conclude that an interpretation of s. 46 which removes the cap on the amount of allowance on basic needs (shelter) is an unreasonable interpretation.

Position of the parties

[42]         G.(R.) argues that the interpretation of s. 46 adopted by the Board falls well within the range of acceptable outcomes. In contrast, she says the interpretation adopted by the reviewing judge, offends principles of statutory interpretation and should be rejected. She says the reviewing judge essentially replaced the Board’s acceptable interpretation with her own and that was an error. I agree. G.(R.) points to the discretionary nature s. 46 affords a decision-maker and makes the valid point that the reviewing judge had to pay attention to the significant deference owed to the Board.

[43]         The DCS urges a very narrow interpretation of s. 46 which the plain wording of the section cannot bear. The DCS suggests that s. 46 should be focused on the income side of the budget deficit calculation and is intended to assist, over a very short term, those who might not otherwise qualify for income assistance because their income is too high. In the alternative, the DCS says that even if total allowable expenses were also exempted, s. 46 was not intended to provide shelter assistance outside the allowance of $535 under s. 45. In short, the DCS says the Board’s decision falls outside the range of acceptable outcomes and the interpretation adopted by the reviewing judge was reasonable.

[44]         The reviewing judge was correct in her selection of reasonableness as the standard of review. However, with respect, I disagree with her application of the standard.

[45]         The interpretation adopted by the reviewing judge ignores the plain wording of s. 46. It says, and I repeat, “A supervisor may exempt an applicant or recipient from the provisions regarding the calculation of the budget deficit…”. The exemption relates to the amounts to be used in the calculation of the budget deficit and G.(R.)’s shelter expense is part of that calculation. To put it simply, s. 46 allows the supervisor to exempt an individual from the limitations otherwise imposed on the calculation of the budget deficit. Nothing in s. 46 leads to the narrowed interpretation adopted by the reviewing judge and which the DCS continues to advocate for on appeal.

[46]         In G.(R)’s case, the Board found that she was exempted from the $535 shelter limit and increased the expense/allowance to $850 for the purpose of determining her budget deficit. Under s. 30, 100% of that budget deficit is then the available assistance (s. 30 is reproduced in ¶32 above). That approach logically flows from the simple and straightforward wording of s. 46. Given the absence of any ambiguity, the clear words of s. 46 must dominate the analysis. And in any event, the Board’s interpretation is harmonious with the scheme and object of the ESIA, and the clear intention expressed by the legislature. To accept the position of the DCS would gut the otherwise clear meaning of the provision.

Conclusion

[47]         As required by s. 13(2)(b) of the ESIA, the task before the Board was to determine the facts and whether the denial of assistance, based on the facts as found by the Board, were compliant with the ESIA and Regulations. The Board’s findings of fact respecting G.(R.)’s medical condition and housing needs are solidly supported on the record. The Board’s findings were not challenged by DCS in the court below nor on appeal. Based on its factual findings, the Board exercised the discretion afforded under s. 46 to exempt G.(R.) from the provisions limiting the calculation of her budget deficit.

[48]         I am mindful that the DCS has budgetary concerns and that social assistance funding is not unlimited. But, as the Board found, s. 46 is not to be used to generally override or supersede the Regulations that are in place with budget calculations. However, when G.(R.) satisfied the Board there was a major health concern and a long-term risk to health, the Board found it had the ability to act.

[49]         The Board was interpreting its home statute and supporting Regulations. The outcome of the Board’s clear reasoning path fell within an acceptable range given the facts and the law. Subject to the caveat that it is only necessary to meet either criteria under s. 46(b) (health or safety), I repeat that the interpretation given by the Board was not only one of several permissible outcomes—it was the only

reasonable conclusion that could be drawn when reading the words in their grammatical and ordinary sense, harmoniously with the scheme and object of the ESIA, and the intention of the legislature. Even if the interpretation adopted by the reviewing judge were sustainable, which I reject, when there is more than one permissible outcome, it is the Board, not the court, that chooses among them.

[50]          For the foregoing reasons, I would allow the appeal and order the DCS to pay costs to the Dalhousie Legal Aid Service in the amount of $3,000.00 inclusive of disbursements.

Van den Eynden, J.A.

Concurred in:

Farrar, J.A.

Bourgeois, J.A.

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