Judicial Discretion in EIA Appeals: A Nexus with Access to Civil Justice?

Written by Rebecca Penner, Robson Hall 2L student

Access to Justice (A2J) has been widely recognized as an issue of growing importance in Canadian society. It is a multi-faceted problem, characterized by a need to keep courts and tribunals operating efficiently so that cases can be heard in a timely manner, and by individual constraints on financial resources to facilitate a legal action, to name but a few. Government run Legal Aid and contingency pay structures attempt to address the expense of seeking legal support, but the impact of poverty and rising costs of living remain a present and pressing barrier. Poverty is a driving factor in limiting individuals’ access to justice in civil courts; an individual who cannot put food on the table cannot fund a divorce case. When the need to engage legal support coincides with a challenging season of life, facilitating access to justice becomes increasingly important. While Manitoba does offer financial legal aid for family law cases, eligibility is assessed based on gross family income. Individuals earning enough to disqualify themselves from legal aid may still not have sufficient funds to pursue a family law action and other types of civil files rarely fall under Legal Aid’s eligibility.

The Manitoba Employment and Income Assistance Act enables the government to provide eligible Manitobans with financial support in times of need. By drawing attention to the role of judicial discretion in granting leave to appeal on employment and income assistance (EIA) decisions, we investigate the role of immediate access to financial resources as a component of A2J. Where individuals do not have the resources to meet their daily needs, they will not be able to take the steps necessary to engage the legal system for civil matters.

Employment & Income Assistance

While most people may think of EIA as the temporary financial support one applies for in-between jobs, the program operates more widely. It provides income supports for rental assistance, disability and health purposes, and other personal needs that may not covered by other programs. Manitobans who receive EIA support may be vulnerable, low-income, or facing new and unavoidable expenses.

Applications for EIA can be either approved or denied, and there are various reasons why someone may dispute a decision relating to income assistance. Applications may be denied outright for not qualifying under prescribed requirements within The Manitoba Assistance Act, the primary legislative foundation of EIA, or payments may be suspended when an individual’s situation changes.[1] Under the Act, individuals can be required to repay money, be subject to fines, or even face imprisonment if they make a false statement in a form. Even merely failing to inform the assistance office of relevant changes in one’s circumstances within one month of the change can trigger these penalties.[2]

Even the average person would find it burdensome to navigate the ever-changing network of government webpages, office phone numbers, on-hold calls, and case numbers necessary to move forward a claim for an appeal. This says nothing of challenges faced by those who do not have access to transportation, a stable home address with a primary phone number, or reliable internet. Imagine further the difficulties posed by navigating this web when English is not your first language, or when one is new to Manitoba or Canada.

When one’s application for EIA is denied, or their existing payments are terminated, their recourse is to appeal to the Social Services Appeal Board (SSAB). If the SSAB dismisses their claim or decides against them, their last option is to seek leave to appeal to the Manitoba Court of Appeal (MBCA).[3]

Miranda v. Director, Social Allowances Act (Winnipeg West)

Miranda v. Director, Social Allowances Act (Winnipeg West)[4] is a situation where the role of judicial discretion enabled an immigrant family to proceed with their EIA appeal claim despite missing a deadline for filing a leave to appeal application. The applicants were new immigrants to Canada, sponsored by their daughter. When the primary income-earner lost his job, he applied for EIA but was denied on the basis that his daughter was sponsoring them and should be covering expenses. As a result of delays which were no fault of the applicants, they missed a court deadline to file certain documents. Judicial discretion allowed their claim to be heard, which enabled the couple to present evidence that, while their sponsor was providing shelter, she was not able or willing to provide further financial assistance. In the end, their application for leave to appeal was granted on the basis that the question of law raised in the appeal was an important one for the court to address, as it would clarify key elements of relevant policy guidelines, such as the degree of financial responsibility required by sponsors of new residents to Canada.

In Miranda, the Court was able to use discretion to recognize that the delay was not the fault of the applicants, and to assess when a claim warrants the attention of the court. Judicial discretion can be applied to ensure that claims with merit are not disposed of on minor technical issues, like missed deadlines. Though this is not a new statement, it is worth remembering the connection between administrative systems and A2J, particularly as the Manitoba legislature continues to modify how the SSAB functions.

In 2022, the Manitoba government passed an amendment to the Social Services Appeal Board Act which would allow appeals by the SSAB to be heard by only one member, instead of a panel of three.[5] While the Manitoba government says that this is in an effort to economize the numerous appeals to the SSAB to ensure a greater number are heard,[6] one must consider the potential impact of allowing decisions to be heard by a “panel” of one. Many appeals from the SSAB already challenge the accuracy of the SSAB’s discretion on interpretation of policies and regulations, often successfully.[7] This could have the incidental effect of increasing appeals to the MBCA, which would do little to address the Court’s already lengthy timelines to hear appeals.

There is no perfect solution when it comes to increasing A2J. While judicial discretion is not a panacea, it can have the effect of enabling more individuals to have their EIA decisions heard, even if delayed.

[1] The Manitoba Assistance Act, C.C.S.M. c. A150.

[2] Ibid., at s. 22(1).

[3] The Social Services Appeal Board Act, C.C.S.M. c. S167 s. 23.

[4] Miranda v. Director, Social Allowances Act (Winnipeg West), 1995 CanLII 16277 (MB CA) [Miranda].

[5] Bill 13, The Social Services Appeal Board Amendment Act, 4th Sess, 42nd Legislature.

[6] News Release – Manitoba, “Manitoba Government Introduces Legislation That Would Amend The Social Services Appeal Board Act” (7 March  2022), online: Manitoba Government https://news.gov.mb.ca/news/index.html?item=53657&posted=2022-03-07[https://perma.cc/PA4Y-3BEW].

[7] Murray v Manitoba (Director Employment and Income Assistance), 2014 MBCA 110; Cann v Fort Garry/River Heights (Director), 2021 MBCA 75; Ginter v. Director, Employment and Income Assistance, 2004 MBCA 36; Stadler v Director, St Boniface/St Vital,2018 MBCA 103.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of 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.

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