[2011] N.S.J. No. 193

2011 NSSC 126

Nova Scotia Supreme Court

P.P. Rosinski J.

March 29, 2011

The Nova Scotia Supreme Court supported the decision to award a mother of a special needs child increased funding to pay personal care workers for their assistance with her son. This was notwithstanding the existence of a directive that limited the amount of funding available for respite help.

Mrs. Boudreau receives funds in trust from the Department of Community Services ("the Department"), pursuant to the Services to Persons with Disability, to assist her in providing care to her child who requires constant assistance. These funds pay for part-time and full-time personal-care workers ("PCWs"). Mrs. Boudreau sought approval from the Department to obtain extra funding to pay her PCWs because she found that she was unable to retain the continuous services of PCWs to care for her child because she was unable to pay them a sufficient hourly rate. In 2010 she had a turnover of seven PCWs. Whereas the Department funded Mrs. Boudreau to pay $10 an hour and $12 an hour for part-time and full time PCWs respectively, the average hourly rate is $14 per hour plus benefits for PCWs.

The Department denied Mrs. Boudreau's application for increased funding. She appealed the decision to a casework supervisor but the Department's decision was upheld. Mrs. Boudreau then appealed the matter to the Assistance Appeal Board ("Board") which allowed the appeal. The Department in this action sought judicial review. In particular, the Department requested an Order in the nature of certiorari quashing the decision of the Board and returning the matter to be re-heard before a differently constituted appeal board. For reasons outlined below, the Court upheld the Board's decision and held that the Department's obligation clearly included the additional funding Mrs. Boudreau requested. The Department's request for an Order in the nature of certiorari was declined.

The Court clarified that Mrs. Boudreau's son was receiving assistance pursuant to s. 19 of the Social Assistance Act, R.S.N.S. 1989, c. 432 ("SAA"), as opposed to s. 12 of the Employment Support and Income Assistance Act, S.N.S. 2000, c. 27 ("ESIAA"). The Court also accepted, and the parties agreed, that the standard of review was correctness.

The Court was satisfied that the reasons provided by the Board were sufficient to allow the Court to assess the correctness of the decision. The Court also held that upon interpretation of the relevant legislation, the Department has a clear obligation to provide assistance to Mrs. Boudreau's son. The relevant questions were: (1) how great is that obligation and (2) whether the Board erred. Since the Court found that the assistance to Mrs. Boudreau's son was essential and his special need was not a discretionary item in which a higher amount of money "may" be included in the calculation of the recipient's budget deficit, the Court found that the Department's obligation clearly included the additional funding as requested. Even if the the decision by the Department under the legislation was discretionary, the Court stated that the Department was obliged to provide assisted funding to Mrs. Boudreau. Notably, the Court also pointed out that neither under the SAA nor ESIAA are there legislated dollar maximum amounts for required assistance. The directive which capped the amount of funding available for respite care did not govern as it was not legislated.