COVID-19: New Manitoba Case on “claw backs” of CERB from Social Assistance Payments

In Cann v Director, Fort Garry/River Heights, 2020 MBCA 101, the Manitoba Court of Appeal recently granted leave to appeal in a challenge to the Manitoba Government’s “claw back” of the Canada Emergency Response Benefit (“CERB”) from social assistance recipients.

The applicant was receiving benefits under the Manitoba Assistance Act (the “MAA”), which is similar to the Ontario Disability Support Program Act (“ODSPA”) in Ontario. In spring 2020, he successfully applied for and received a CERB payment in the amount of $2,000 for a four-week period.

The Director of Assistance (the “Director”) who administers Manitoba’s income assistance framework, claimed the applicant was ineligible for CERB and characterized the CERB payment as “earned income” based on an interpretation of relevant provisions in the MAA. Manitoba’s claw back formula was then applied resulting in a $378 overpayment for the applicant.

The applicant appealed the Director’s Decision to the Social Services Appeal Board (the “SSAB”), based on the hardship the “claw back” would cause” for him. The SSAB upheld the decision finding there was no evidence of hardship to the applicant, that he was not eligible for the CERB and the overpayment was calculated correctly.

Despite the federal government’s request that CERB payments not be subject to a claw back, a “patchwork” of inconsistent provincial and territorial responses to the CERB emerged across the country.

Manitoba has adopted a similar claw back model to Ontario, whereby CERB payments would be considered “earned income” and therefore subject to a claw back based on a formula. However, unlike Ontario, Manitoba’s treatment of the CERB is a matter of policy, not regulation, creating less clarity on how CERB payments are and ought to be treated.

Why this decision is important:

The decision paves the way for an appellate level court to address two key issues:

1. Whether CERB payments are “earned income” or “income support” for the purposes of determining the amounts for provincial income assistance payments;

2. Whether an administrative tribunal can make an eligibility determination regarding CERB payments when such payments may affect a social assistance program within its jurisdiction.

The decision also raises important access to justice issues, First, as a matter of public interest and fairness, it is critical for decision-makers to provide clear, detailed reasons for their findings. Second, although the court declined to grant an appeal of whether the applicant would face hardship as a result of the claw back, it did recognize that many people receiving the CERB are from vulnerable groups and this vulnerability makes the questions above even more critical to clarify.

We will continue to monitor legal developments stemming from this case, and other CERB matters. In the meantime, if you require legal assistance, we encourage you to reach out to your regular PooranLaw lawyer, or any member of our team.

Note: This article provides general information only and does not constitute, and should not be relied upon as, legal advice or opinion. PooranLaw Professional Corporation holds the copyright to this article and the article and its contents may not be copied or reproduced in any form, in whole or in part, without the express permission of PooranLaw Professional Corporation.