Finlay v. Canada (Minister of Finance), 1993 CanLII 129 (SCC), [1993] 1 SCR 1080

minicounsel

The Minister of Finance of Canada, the Minister of National Health and Welfare of Canada and the Attorney General of Canada Appellants

Robert James Finlay Respondent

and

The Attorney General of Quebec, the Attorney General of Manitoba, the Attorney General for Alberta and the National Anti‑Poverty Organization Interveners

Indexed as: Finlay v. Canada (Minister of Finance)

File No.: 22162.

*1992: March 23.

*Present: Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin and Stevenson JJ.

**Rehearing: 1993: January 28; 1993: March 25.

**Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

on appeal from the federal court of appeal

Social welfare ‑‑ Social assistance ‑‑ Overpayments ‑‑ Manitoba making deductions from social assistance payments in order to recover overpayments ‑‑ Provinces required to "take into account the basic requirements" of persons in need in order to be eligible for federal cost sharing ‑‑ Whether deductions violate Canada Assistance Plan or agreement between Manitoba and federal government ‑‑ Canada Assistance Plan, R.S.C., 1985, c. C‑1, s. 6(2)(a), (b) ‑‑ Social Allowances Act, R.S.M. 1987, c. S160, s. 20(3).

Social welfare ‑‑ Social assistance ‑‑ Rates ‑‑ Manitoba allowing municipalities to set own rates of assistance ‑‑ Whether practice violates Canada Assistance Plan ‑‑ Canada Assistance Plan, R.S.C., 1985, c. C‑1, s. 4.

Respondent, who suffers from permanent disabilities, receives social assistance from the Manitoba government. The province began making deductions from his assistance payments to permit recovery of overpayments it had made. Respondent brought an action, as a public interest litigant, seeking a declaration that the federal contribution payments to the Manitoba social assistance scheme under the Canada Assistance Plan (CAP) are illegal so long as the Manitoba Social Allowances Act (SAA) continues to authorize reducing an allowance below the level of basic requirements or so long as Manitoba permits its municipalities to establish their own rates of assistance. CAP requires a province to provide financial assistance in an amount or manner that "takes into account the basic requirements" of a person in need in order to be eligible for federal contribution. The trial judge found that Manitoba's scheme for deductions for overpayments violated CAP, but that CAP did not prohibit municipalities from setting social assistance rates. The Federal Court of Appeal concluded that Manitoba was breaching CAP on both grounds. This appeal is to determine (1) whether deductions from an individual's social assistance to permit recovery of overpayments violate CAP or the agreement between Manitoba and the federal government made pursuant to CAP; and (2) whether Manitoba's practice of permitting municipalities to establish their own rates of social assistance independent of provincial scrutiny violates CAP.

Held (La Forest, L'Heureux‑Dubé, Cory and McLachlin JJ. dissenting): The appeal should be allowed.

(1) Recovery of Overpayments

Per Lamer C.J. and Sopinka, Gonthier, Iacobucci and Major JJ.: Given the nature and objects of CAP, which is a spending statute, the conditions attached to the federal government's contribution are not designed to dictate the precise terms of the provincial legislation, but rather to promote legislation which achieves substantial compliance with the objectives of CAP. Section 6(2)(a), in requiring the province to "take into account" the basic requirements of a person in need, requires assistance to be provided in an amount that is compatible with an individual's basic requirements, and thus requires something more that mere "consideration" of those requirements, but it does not require a province to provide an amount of assistance that "fulfils" or "equals" basic requirements for each payment period. The words used do not suggest such a rigid requirement, and some flexibility in the standard imposed on the provinces is to be expected having regard to the context of CAP. In s. 6(2)(b), the words "take into account" have a different meaning and indicate that a province must consider the factors listed in determining who is a person in need and how much assistance should be provided.

Under the SAA and Social Allowances Regulation, Manitoba provides an allowance for "basic necessities", which essentially correspond to the "basic requirements" in CAP, but also provides, in s. 20(3) of the SAA, for deductions to be made from this basic amount to permit the recovery of overpayments. The effect of this provision is to allow for the gradual recovery of an amount that should not have been paid out in the first place. Once that recovery is completed the individual will have received exactly that to which he or she is entitled, if the payments over the entire duration are considered, and will thus have received an amount consistent with basic requirements. Such provision for the recovery of overpayments is foreseen in CAP and the Regulations thereunder, and the Manitoba plan for preventing and recovering overpayments has received federal approval. Section 20(3) of the SAA, added in 1980, specifically limits deductions to recover overpayments to amounts that "would not cause undue hardship to the recipient", and there remains a right of appeal under s. 9, including the ground of appeal that the amount of social allowance or municipal assistance granted is insufficient to meet the individual's needs. Deductions from an individual's social assistance to permit recovery of overpayments therefore do not violate CAP or the agreement between Manitoba and the federal government.

Per L'Heureux‑Dubé, Cory and McLachlin JJ. (dissenting): In order to be eligible for federal contribution to the costs of social assistance, the provinces must have in place a scheme which provides for the basic requirements of the person in need. Other benefits are not required as a condition of federal assistance, but will be subject to cost sharing if undertaken. Section 6(2)(a) of CAP requires that the province "take into account" the basic requirements of the person in need. The French version of the provision makes it clear that the province is not merely obliged to consider or "look at" the person's basic requirements in determining what it will pay, but must provide a sum "compatible" with them. Section 6(2)(b) is broader in scope, referring to "budgetary requirements" rather than the narrower concept of "basic requirements". Its purpose is to ensure that in determining who is a person in need and in fixing the amount of the payment, the needs and means of the recipient are taken into account. The Parliamentary debates relating to the adoption of CAP support the conclusion that s. 6(2)(a) was intended to ensure that the provinces meet the "basic requirements" of persons in need. They indicate that s. 6(2)(a) sets the minimum level of assistance, while s. 6(2)(b) provides that eligibility for that assistance shall be determined by a needs test. An interpretation which ensures that at least the basic requirements of the person in need are satisfied also complies with the principle that when faced with general language or contending interpretations arising from ambiguity in statutory language, a court should adopt an interpretation which best assures adequacy of assistance.

The deductions for overpayment made by Manitoba violate the minimum requirements of CAP for federal contribution. The Manitoba allowance for basic necessities includes food, clothing, personal needs, household supplies, shelter, utilities and fuel. This list corresponds exactly to the "basic requirements" in CAP. Any deduction from the amount allotted to provide for these items would therefore result in payments below the minimum level specified by CAP. While the Manitoba allowance also provides for certain items beyond the "basic requirements", it is clear that they would be provided only in unusual circumstances and that none of them would enhance the recipient's spending position, since they are all destined to reimburse third parties. Since recipients of social assistance in Manitoba thus never personally receive more than their basic requirements, any deduction will necessarily deprive them of a portion of their basic requirements, unless they have some other source of funds. On the evidence, the respondent in this case did not have another source of funds, with the result that the deductions deprived him of the basic necessities of life.

Per La Forest J. (dissenting): McLachlin J.'s reasons on the first issue were agreed with, apart from her reliance on the legislative debates, on which no opinion was expressed.

(2) Setting of Rates by Municipalities

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Iacobucci and Major JJ.: There is nothing in CAP or the agreement between Manitoba and the federal government that requires the rates of assistance to be set by the provincial authority rather than municipalities. The role identified in CAP for the province or provincial authority is to establish the applicable criteria for the provision of assistance; nowhere does CAP require that the actual dollar rates for assistance be set by the provincial authority. This is consistent with the fact that such rates may legitimately vary significantly among municipalities in accordance with local conditions and in different localities in a municipality. Pursuant to s. 4 of CAP, the agreement with a province may provide for payment with respect to assistance provided by a provincially approved agency, and representatives of the various municipalities are listed in Schedule B to the Manitoba agreement as provincially approved agencies. It is thus sufficient if the province has established appropriate criteria which conform with CAP for the identification of persons in need and the determination of the amount of assistance to be provided, and Manitoba has done this in The Municipal Act.

Per Lamer C.J. and La Forest, L'Heureux‑Dubé, Cory and McLachlin JJ.: CAP permits rates for social assistance to be set by the municipalities. Provided that the province establishes the test for a "person in need", as Manitoba has done in The Municipal Act, the application of that test may be left to its delegates, the municipalities.

Cases Cited

By Sopinka J.

Referred to: Re Finlay and Director of Welfare (Winnipeg South/West) (1976), 71 D.L.R. (3d) 597; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607.

By McLachlin J. (dissenting)

Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; R. v. Sullivan, [1991] 1 S.C.R. 489; R. v. Mailloux, [1988] 2 S.C.R. 1029; R. v. Vasil, [1981] 1 S.C.R. 469; Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2; Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; Kerr v. Metropolitan Toronto (Department of Social Services, General Manager) (1991), 4 O.R. (3d) 430; Damon v. Secretary of Health, Education and Welfare, 557 F.2d 31 (1977); Brown v. Bates, 363 F. Supp. 897 (1973).

Statutes and Regulations Cited

Canada Assistance Plan, R.S.C., 1985, c. C‑1, ss. 1, 2, 3, 4, 6(1)(a), (2)(a), (b), 7.

Canada Assistance Plan Regulations, C.R.C. 1978, c. 382, ss. 2(2), 3(b).

Municipal Act, R.S.M. 1988, c. M225, ss. 449, 450(1), 451(1), (4), 452.

Social Allowances Act, R.S.M. 1987, c. S160, ss. 1, 2, 3, 4, 6, 7(1), (2), 9(1), (3), 20(1), (3).

Social Allowances Regulations, S160-404/88R, s. 5, Sch. A.

Social Services Administration Act, R.S.M. 1987, c. S165.

APPEAL from a judgment of the Federal Court of Appeal, [1990] 2 F.C. 790, 71 D.L.R. (4th) 422, 115 N.R. 321, affirming a declaration by the Federal Court, Trial Division (1989), 57 D.L.R. (4th) 211, 25 F.T.R. 45, that federal contribution payments to the Manitoba social assistance scheme are illegal. Appeal allowed, La Forest, L'Heureux‑Dubé, Cory and McLachlin JJ. dissenting.

Eric A. Bowie, Q.C., Faye E. Campbell, Q.C., and Harry Glinter, for the appellants.

G. Patrick S. Riley and John A. Myers, for the respondent.

Louis Rochette and Dominique Rousseau, for the intervener the Attorney General of Quebec.

W. Glenn McFetridge, for the intervener the Attorney General of Manitoba.

Beverley Bauer, for the intervener the Attorney General for Alberta.

Arne Peltz, for the intervener the National Anti‑Poverty Organization.

//Lamer C.J.//

The following are the reasons delivered by

Lamer C.J. -- I concur in the reasons of Justice Sopinka. I also concur in the reasons of Justice McLachlin and of Justice Sopinka as regards the disposition of issue No. 2.

//La Forest J.//

The following are the reasons delivered by

La Forest J. (dissenting) -- I have had the advantage of reading the reasons of my colleagues, Justice Sopinka and Justice McLachlin. I agree with McLachlin J.'s disposition of issues 1(a) and (b) set forth in her reasons. This I do for the reasons she gives, apart from her reliance on the legislative debates, upon which I express no opinion. I also agree with her disposition of issue 2 for the reasons given by her and by Sopinka J.

I would therefore dispose of the appeal as she does except that I would award costs throughout on a party and party basis.

//McLachlin J.//

The reasons of L'Heureux-Dubé, Cory and McLachlin JJ. was delivered by

McLachlin J. (dissenting) -- This case raises the issue of whether provincial social assistance schemes must provide the basic living requirements of persons on assistance in order to be eligible for cost‑sharing grants from the federal government under the Canada Assistance Plan, R.S.C., 1985, c. C-1 (formerly R.S.C. 1970, c. C-1) ("CAP"). The issue arises as a consequence of the Province of Manitoba's practice of making deductions from the basic living allowance of recipients in order to recapture alleged overpayments.

Mr. Finlay, a resident of Manitoba, qualifies for social assistance under the Manitoba scheme because of lifelong disabilities, including severe epilepsy, which render him unable to provide for himself. At the relevant time, his monthly social assistance allowance for food, clothing and personal needs was $213.40; in addition he was entitled to a rent allowance (up to $45.00 per month), utilities and fuel.

In February of 1974, Manitoba commenced making deductions from his assistance payments on account of alleged overpayments. The first overpayment, of $207.70, related to shared accommodation; the second, $109.00, was for moving costs; and the third, $796.00, for proceeds of a business development grant. Mr. Finlay did not profit in the sense of gaining extra living expenses from these alleged overpayments. For example, the moving overpayment resulted from a demand by the Province that he move because his apartment was too big. He complied. Because he cannot drive due to his medical condition, he hired someone to move him. He paid that person $189.00. After he had moved and after the province had paid for the move, the province advised him that he was entitled to a maximum moving allowance of $80.00. He was therefore deemed to have received an overpayment of social assistance in the sum of $109.00.

The province proceeded to attempt to recover the overpayments by making deductions of 5 percent from Mr. Finlay's basic living allowance. Mr. Finlay was told that this would go on for ten years, until the overpayments had been recouped. As a consequence of the deductions, Mr. Finlay was left with less money than he needed to live. In order to make ends meet, he did not eat three days a month. He lost sixty pounds. At this point the deductions stopped, presumably on compassionate grounds.

Mr. Finlay attempted to appeal the deductions under the appeal process provided under the Manitoba Social Allowances Act, R.S.M. 1987, c. S160. He was unsuccessful. He then brought these proceedings, seeking, inter alia, a declaration that Manitoba's conduct of making deductions from what it has determined were the basic requirements of recipients violates the Canada Assistance Plan.

Mr. Finlay's situation is not unique. The evidence presented at the trial in 1987 established that similar deductions were being made from 11 percent of Manitoba welfare recipients, or about 5,000 people. The province did not suggest on the hearing before us that the situation has improved.

The Issues

The appeal raises the following issues:

Does the deduction of money for overpayments violate CAP and the agreement between the federal government and Manitoba made pursuant to CAP?

(a) Does CAP (and the agreement made pursuant to it) require that a province provide a minimum standard of social assistance benefits equivalent to the basic requirements of the person in need?

(b) If the answer to (a) is yes, do the deductions at issue in this case violate the minimum standard of social assistance required by CAP?

Does the practice in Manitoba of permitting municipalities to establish their own rates of social assistance independent of provincial scrutiny violate CAP?

The Scheme

The Canada Assistance Plan is one of a number of plans in force in Canada by which the federal government contributes to the cost of services provided by the provinces. Adopted in 1966, CAP provides for contribution by the federal government to provincial social assistance and welfare services for persons in need. The plan sets out the conditions for obtaining federal assistance and by s. 4 authorizes the Minister of National Health and Welfare to enter into agreements with the provinces in respect of federal contributions. An agreement was made with Manitoba March 20, 1967.

The relevant provisions of CAP are as follows:

An Act to authorize the making of contributions by Canada toward the cost of programs for the provision of assistance and welfare services to and in respect of persons in need

WHEREAS the Parliament of Canada, recognizing that the provision of adequate assistance to and in respect of persons in need and the prevention and removal of the causes of poverty and dependence on public assistance are the concern of all Canadians, is desirous of encouraging the further development and extension of assistance and welfare services programs throughout Canada by sharing more fully with the provinces in the cost thereof;

THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

This Act may be cited as the Canada Assistance Plan.

INTERPRETATION

In this Act,

"assistance" means aid in any form to or in respect of persons in need for the purpose of providing or providing for all or any of the following:

(a) food, shelter, clothing, fuel, utilities, household supplies and personal requirements (hereinafter referred to as "basic requirements"),

(b) prescribed items incidental to carrying on a trade or other employment and other prescribed special needs of any kind,

(d) travel and transportation,

(e) funerals and burials,

(f) health care services,

(g) prescribed welfare services purchased by or at the request of a provincially approved agency, and

(h) comfort allowances and other prescribed needs of residents or patients in hospitals or other prescribed institutions;

"Minister" means the Minister of National Health and Welfare;

"person in need" means

(a) a person who, by reason of inability to obtain employment, loss of the principal family provider, illness, disability, age or other cause of any kind acceptable to the provincial authority, is found to be unable, on the basis of a test established by the provincial authority that takes into account the budgetary requirements of that person and the income and resources available to that person to meet those requirements, to provide adequately for himself, or for himself and his dependants or any of them, or

(b) a person under the age of twenty‑one years who is in the care or custody or under the control or supervision of a child welfare authority, or a person who is a foster‑child as defined by regulation,

and for the purposes of paragraph (e) of the definition "assistance" includes a deceased person who was a person described in paragraph (a) or (b) of this definition at the time of his death or who, although not such a person at the time of his death, would have been found to be such a person if an application for assistance to or in respect of him had been made immediately before his death;

"prescribed" means prescribed by regulation;

"provincial authority" means the provincial Minister or other official or body specified by the province in an agreement entered into under section 4 as being charged with the administration of the provincial law;

"provincial law" means the Acts of the legislature of a province that provide for

(a) assistance, or

(b) welfare services in the province,

under conditions consistent with the provisions of this Act and the regulations, and includes any regulations made under those Acts;

"provincially approved agency" means any department of government, person or agency, including a private non‑profit agency, that is authorized by or under the provincial law or by the provincial authority to accept applications for assistance, determine eligibility for assistance, provide or pay assistance or provide welfare services and that is listed in a schedule to an agreement under section 4;

PART I

GENERAL ASSISTANCE AND

WELFARE SERVICES

Interpretation

In this Part,

"agreement" means an agreement made under section 4;

"contribution" means an amount payable by Canada under an agreement.

Agreement Authorized

Subject to this Act, the Minister may, with the approval of the Governor in Council, enter into an agreement with any province to provide for the payment by Canada to the province of contributions in respect of the cost to the province and to municipalities in the province of

(a) assistance provided by or at the request of provincially approved agencies pursuant to the provincial law; and

(b) welfare services provided in the province by provincially approved agencies pursuant to the provincial law.

Terms of Agreement

. . .

(2) An agreement shall provide that the province

(a) will provide financial aid or other assistance to or in respect of any person in the province who is a person in need described in paragraph (a) of the definition "person in need" in section 2, in an amount or manner that takes into account the basic requirements of that person;

(b) will, in determining whether a person is a person described in paragraph (a) and the assistance to be provided to that person, take into account the budgetary requirements of that person and the income and resources available to that person to meet those requirements;

(d) will not require a period of residence in the province as a condition of eligibility for assistance or for the receipt or continued receipt thereof;

(e) will ensure the provision by law, not later than one year from the effective date of the agreement, of a procedure for appeals from decisions of provincially approved agencies with respect to applications for assistance or the granting or providing of assistance by persons directly affected by those decisions;

(f) will ensure the maintenance and availability, for examination and audit by the Minister or any person designated by him, of such records and accounts respecting the provision of assistance and welfare services in the province as the agreement or the regulations may require; and

(g) will provide the Minister with copies of all Acts of the legislature of the province referred to in the definition "provincial law" in section 2 and of all regulations made under those Acts.

Payment of Contributions

Contributions or advances on account thereof shall be paid, upon the certificate of the Minister, out of the Consolidated Revenue Fund at such times and in such manner as may be prescribed, but all such payments are subject to the conditions specified in this Part and in the regulations and to the observance of the agreements and undertakings contained in an agreement.

The relevant provisions of the 1967 Agreement are as follows:

The Province agrees

(a)to provide financial aid or other assistance to or in respect of any person in the province of Manitoba who is a person in need described in subparagraph (i) of paragraph (g) of Section 2 of the Act in an amount or manner that takes into account his basic requirements;

(b)in determining whether a person is a person described in subclause (a) of this clause and the assistance to be provided to such person,

(i)except prior to April 1st, 1967, to obtain from such person or from a responsible person on his behalf, an application for assistance in form and content satisfactory to the provincial authority, and

(ii)to take into account that person's budgetary requirements and the income and resources available to him to meet those requirements,

provided that

(iii)in taking into account that person's income and resources, The Province may determine the income and resources of that person on a daily, weekly, monthly or other periodic basis acceptable to the provincial authority but in calculating that income shall include as income the whole of any income maintenance payment;

Shortly after CAP's adoption, it was realized that the Plan did not allow the federal government to make contributions to the provinces with respect to overpayments to assistance or welfare recipients. In March 1971 the Canada Assistance Plan Regulations were amended to allow for federal cost sharing in respect of overpayments to persons subsequently found to be ineligible for all or part of such assistance. At the same time the amendments required the provinces to set up a scheme for recovery of overpayments. On November 24, 1971, the federal government approved the Manitoba plan for preventing and recovering overpayments on certain conditions. Manitoba subsequently informed Ottawa that the conditions had been fulfilled, and final federal approval was issued on February 29, 1972.

The relevant provisions of the Canada Assistance Plan Regulations, now C.R.C. 1978, c. 382, are as follows:

. . .

(2) For the purposes of the Act and these Regulations,

"budgetary requirements" means the basic requirements of a person and his dependants, if any, and any other of the items and services described in paragraphs (b) to (h) of the definition "assistance" in section 2 of the Act that, in the opinion of the provincial authority, are essential to the health or well‑being of that person and his dependants, if any;

"personal requirements" means items of a minor nature, other than the ordinary requirements of food, shelter, clothing, fuel, utilities and household supplies, that are necessary in day to day living to a person's health or well‑being, and, without limiting the generality of the foregoing, includes items relating to

(a) personal care, cleanliness and grooming,

(b) the observance of religious obligations, and

Expressions Defined for the Purposes of Particular Provisions

of the Act

For the purposes of

(b) paragraph 5(1)(a) of the Act, "cost to the province and to municipalities in the province" in a year means payments made in the year

(i) by the province, and

(ii) by municipalities in the province,

and includes

(iii) depreciation allowances, and

(iv) payments by way of assistance provided by or at the request of a provincially approved agency to persons who were considered to be persons in need and who are subsequently found to have been ineligible for all or part of such assistance, where the provincially approved agency has implemented a plan to prevent any such payments and to recover any such payments and the plan is satisfactory to the Minister or a person designated by him . . . .

In Manitoba, federally cost‑shared payments to persons in need fall under two provincial statutes, The Social Allowances Act ("SAA") and The Municipal Act, R.S.M. 1988, c. M225. The SAA provides assistance to single‑parent families, to persons with long‑term medical disabilities and to persons who are generally unable to provide for themselves (in brief, it was said, to "unemployable persons"). The Municipal Act provides assistance to persons who are employable but have been unable to find employment, to persons with short‑term disabilities, and to single parents who have been separated from marriage for less than 90 days.

In July 1980, the SAA was amended, adding s. 20(3), which authorizes the deduction of overpayments. However, such deductions were also made prior to this amendment pursuant to s. 9(1).

The relevant provisions of the SAA are as follows:

Definitions.

1In this Act,

"basic necessities" means the things and services to which reference is made in section 2;

"cost of the basic necessities" or "cost of his basic necessities" means the cost, as established in the regulations, of those basic necessities with respect to which a regulation is made under section 6;

Provision of essential supplies services, and care.

2Subject as herein provided, the Government of Manitoba and each of the several municipalities in the province may take such measures as are necessary for the purpose of ensuring that no resident of Manitoba, lacks

(a) such things, goods, and services as are essential to his health and well‑being, including food, clothing, shelter, and essential surgical, medical, optical, dental, and other remedial treatment, care, and attention; and

(b) an adequate funeral upon his death.

Payment of monthly social allowance.

3For the purpose mentioned in section 2 the government, through and at the discretion of, the director, may, out of the Consolidated Fund with moneys authorized by an Act of the Legislature to be so paid and applied, grant and pay to or for a recipient monthly or more frequently, an amount in money sufficient to pay the cost of the basic necessities of himself and his dependants.

Determination of amount.

4The amount to be paid to or for any recipient under section 3, shall be determined after consideration of, and shall be based on the requirements in respect of, his basic necessities and those of his dependants, if he has dependants.

Establishment of cost of basic necessities.

6 The Lieutenant Governor in Council may, by regulation made by order in council, establish, for the purpose of this Act and as at the time of the making of the regulation, the cost of the several basic necessities or of those the cost of which should, in his opinion, be established from time to time.

Fixing of amount by director.

7(1) If he deems that an applicant should receive a social allowance, the director shall, in accordance with the regulations and subject to subsection (2), by his written order fix the amount of the social allowance that shall be paid to him.

Sufficient for basic necessities.

7(2) In accordance with the regulations, the director shall fix an amount that, in his opinion, will be sufficient to provide the applicant with an income sufficient to pay the cost of his basic necessities.

Discontinuance, reduction, suspension or increase in allowance.

9(1) Where, on the basis of information received by the director, the director is of the opinion that the social allowance being paid to a recipient

(a) should be discontinued; or

(b) should be reduced; or

(d) should be increased;

the director, may by written order direct that the social assistance be discontinued, reduced, suspended or increased, as the case may require.

Right of appeal.

9(3) An applicant or a recipient or a person who has applied for, or is or was receiving, municipal assistance from a municipality may appeal to the appeal board where he feels his treatment was unfair because

(a) he was not allowed to apply or re‑apply for social allowance or municipal assistance;

(b) his request for social allowance or municipal assistance or increase in social allowance or municipal assistance was not decided upon within a reasonable time;

(d) his social allowance or municipal assistance was cancelled, suspended, varied or withheld; or

(e) the amount of social allowance or municipal assistance granted is insufficient to meet his needs.

Recovery of payments made in error or on false statements.

20(1) Where the government has provided or paid assistance or any social allowance to or for a person, if the assistance or social allowance, or any part thereof, would not have been provided or paid except for

(a) a false statement or misrepresentation made by the person; or

(b) an error;

the government may recover from the person, or his executors or administrators, or his spouse, or the executors or administrators of his spouse, and, if the person is an infant, his parent or guardian or any person legally liable to pay his expenses, the amount of that assistance or social allowance or that part thereof as a debt due and owing from the person to the Crown.

Deductions from recipients.

20(3) Notwithstanding any other provision of this Act or the regulations, where under subsection (1) or (2), a person who is liable to pay an amount of social allowance paid to him as a debt to the Crown in right of Manitoba, is a recipient the director may authorize the deduction of an amount that would not cause undue hardship to the recipient from each subsequent payment of social allowance to that person until the amount of the indebtedness of that person is discharged.

The Manitoba Social Allowances Regulation, S160‑404/88R, provides in Schedule A to s. 5 for the costs of basic necessities, according to the number of adult persons and the number and ages of the children. The monthly rate for "food, clothing, personal needs for adult recipients and household supplies" for one adult person without dependants is set at $213.40, an amount that was much referred to in the course of argument, since the respondent is such a person. The trial judge found that the province's policy as to the quantum of recovery in the case of overpayments was to recover 5 percent of the total allowance, or the whole of that portion of the allowance intended to cover "personal requirements", whichever is less ((1989), 57 D.L.R. (4th) 211, at p. 219).

The rates of social assistance falling under The Municipal Act are set by the individual municipalities.

The relevant provisions of The Municipal Act are as follows:

PART VII

MUNICIPAL ASSISTANCE

DIVISION I

AID TO NEEDY PERSONS

Powers under Social Allowances Act.

449 Every municipality has the powers and authority set out in section 2 of The Social Allowances Act.

Definitions.

450(1) Subject to Rule 1 set out in Schedule 7, in this Division

"assistance" means assistance as defined in The Social Services Administration Act;

"basic necessities" means things, goods and services that are essential to a person's health and well‑being, including food, clothing, shelter, household and personal requirements, medical, hospital, optical, dental and other remedial treatment, care and attention, and an adequate funeral on death;

"municipal assistance" means assistance provided by a municipality to a person in need who is a resident of, or found in, the municipality;

"person in need" means a person who lacks the basic necessities and includes a dependant of a person in need.

Municipal assistance.

451(1) The council of each municipality shall, by by‑law, provide

(a) for granting municipal assistance to any person in need who is a resident of, or is found in, the municipality, who lacks the basic necessities, and who is not qualified to receive a social allowance; and

(b) for regulating and prescribing the conditions under which municipal assistance is to be given to ensure that basic necessities of persons in need are met.

Appeal under Social Allowances Act.

451(4) Where a municipality has passed a by‑law under subsection (1), any person who has applied for, or is or was receiving, municipal assistance from the municipality may appeal any decision affecting his application or varying or terminating the municipal assistance in accordance with section 9 of The Social Allowances Act and that section applies to the appeal and to the municipality.

Municipality fails to assist.

452 Where a municipality responsible for the provision of municipal assistance to a person in need fails or refuses to grant the municipal assistance, the person may apply to the director under The Social Allowances Act who may grant assistance under that Act in lieu of municipal assistance; and the amounts paid under this section as assistance under that Act is a debt due to the government by the municipality and may be recovered by the government from the municipality by withholding from grants payable to the municipality from the government amounts equivalent to the amounts paid under this section as assistance under that Act.

Judgments Below

Federal Court of Canada, Trial Division (1989), 57 D.L.R. (4th) 211

On the issue of the standard of benefits, if any, required by CAP to permit federal contribution, the trial judge, Teitelbaum J., concluded that CAP and the agreement with Manitoba made federal contributions conditional on the province providing sufficient funds to meet the basic needs of the recipient as a condition of federal contribution. He further held that the permitted deduction for overpayment of up to 5 percent of the basic needs of the recipient offended this requirement, and was in contravention of the province's obligations under the CAP agreement.

On the issue of whether CAP permits the province to allow municipalities to set the rate of social assistance, Teitelbaum J. held that any discrepancy between the amounts paid to recipients under the SAA and The Municipal Act did not necessarily constitute a violation of CAP and was permitted.

Teitelbaum J. granted the plaintiff a declaration of non‑compliance on the first ground and issued an injunction against the Minister of Finance enjoining payments to Manitoba under CAP so long as the SAA continues to authorize reducing an allowance below the level of basic requirements. He declined, however, to award the plaintiff costs, holding that in receiving moneys he should not have had, he was "the author of his own misfortune" (p. 231).

Federal Court of Appeal, [1990] 2 F.C. 790, 71 D.L.R. (4th) 422, 115 N.R. 321

On the first issue, the Federal Court of Appeal, per MacGuigan J.A., held that CAP, and in particular s. 6(2)(a), required the provincial scheme to "fulfil" or "meet" the basic requirements of the recipient. It appears that this includes both "basic requirements" and additional amounts which may be included in the term "budgetary requirements". The deduction of up to 5 percent from the basic needs standard of $213.40 applicable in this case reduced the amount payable below this minimum and violated the CAP agreement. MacGuigan J.A. stated, at pp. 815-16:

To hold that a province does not have the right to recover overpayments . . . on any basis that does not satisfy the conditions of the Canada Assistance Plan admittedly renders difficult the recovery of overpayments, a recovery which is in effect forced upon the province by the Federal Government. Of course, a province will always have a remedy in the case of fraud, or where the recipient has access to other income or resources. But it must not be blithely supposed that it is necessarily in the public interest to bleed those who live at or below the poverty line as a purgative for social health, even if the bleeding is only a little at a time and only once a month. Such attempted disincentives to abuse may well be as socially harmful as the reputed disease. [References omitted.]

On the second issue, the Court of Appeal held that CAP required social assistance rates to be established by the province and that the practice of having them set by the municipality violated the requirements of CAP.

With respect to remedy, the Court of Appeal was of the view that the trial judge's injunction against all payments to Manitoba under CAP was too broad, adversely affecting too many programs. It thus dismissed the appeal from the declaration but allowed the appeal from the injunction. It also issued a declaration that the rates were to be established by the provincial authority, not the municipalities, and reversed the trial judge's decision on costs. The Court of Appeal held that costs should be awarded to Mr. Finlay on a solicitor-client basis because Mr. Finlay was recognized as having standing as a public interest plaintiff. The Court of Appeal disagreed with the trial judge's decision that the overpayments were caused by Mr. Finlay's own deliberate actions.

Discussion

1. Does the Deduction of Overpayments Violate CAP?

The parties and interveners posit three different answers to this question. The appellant, the federal Minister of Finance, says the province must provide an amount equal to basic requirements as defined in CAP. The interveners for the provinces submit that CAP requires no minimum; the provinces must simply "consider" in the sense of "look at" basic requirements in its calculation. The respondent and the National Anti‑Poverty Organization ("NAPO") adopt the position that the province must provide both basic requirements and budgetary requirements.

On one thing, however, the parties agree; the sections of the CAP legislation and regulations governing the issue are far from clear. While different parties stress different phrases, all agree that grammatical parsing alone will not yield an answer; recourse must be had to the purpose and overall functioning of the scheme.

The scheme, like most shared-cost arrangements between the federal government and the provinces, is essentially cooperative. The provinces may participate; they are not obliged to do so. The provinces have responsibility and exclusive jurisdiction over social assistance within their boundaries. The federal government agrees to share the cost of their programs, provided certain conditions are met. One of the conditions is that the province enter into an agreement with the federal government. The language of the agreements tracks the language of the CAP Act and incorporates conditions imposed by that Act.

I have concluded that the most sensible interpretation of these difficult provisions is that the provinces, in order to be eligible for federal contribution to the costs of social assistance, must have in place a scheme which provides for the basic requirements of the person in need, that is, for his or her "food, shelter, clothing, fuel, utilities, household supplies and personal requirements". Other benefits, those enumerated in (b) to (h) of the definition of "assistance", are not required as a condition of federal assistance, but will be subject to cost sharing if undertaken. In arriving at these conclusions, I have not considered the constitutional limits, if any, on the federal spending power. That issue was not raised before us and should, in my view, be left to another day.

The considerations which lead me to the conclusion that the provinces undertake under CAP to provide the basis necessities of persons in need are the following:

The Wording of CAP
The Purpose of the Provisions
The Legislative Debate
The Adequacy Principle

1. The Wording of CAP

I note first the preamble. It sets forth Parliament's recognition "that the provision of adequate assistance to and in respect of persons in need and the prevention and removal of the causes of poverty and dependence on public assistance are the concern of all Canadians . . ." This phrase suggests that the goal was to provide adequate assistance to ‑‑ that is, to meet the basic needs of ‑‑ people in need across the country. The second part of the recital is less clear: "the Parliament of Canada . . . is desirous of encouraging the further development and extension of assistance and welfare services programs throughout Canada by sharing more fully with the provinces in the cost thereof . . ." The provinces submit that this indicates that the goal of CAP is not to ensure that basic needs are met, but merely to "encourage" the provinces to work toward more generous assistance. However, it is possible to reconcile these words with the federal government's position that CAP requires the province to provide basic necessities but not extra "budgetary requirements". The preamble is then read as indicating the desire to ensure that everyone in need receives the basic necessities, while at the same time encouraging extension of assistance with respect to needs outside this category. Viewed thus, there is no contradiction between the two sections of the preamble.

I come then to the operative provisions of CAP. Section 2 defines the type of assistance which is contemplated by the scheme.

"assistance" means aid in any form to or in respect of persons in need for the purpose of providing or providing for all or any of the following:

(a) food, shelter, clothing, fuel, utilities, household supplies and personal requirements (hereinafter referred to as "basic requirements"),

(b) prescribed items incidental to carrying on a trade or other employment and other prescribed special needs of any kind,

(d) travel and transportation,

(e) funerals and burials,

(f) health care services,

(g) prescribed welfare services purchased by or at the request of a provincially approved agency, and

(h) comfort allowances and other prescribed needs of residents or patients in hospitals or other prescribed institutions; [Emphasis added.]

It thus emerges that the benefits contemplated by the scheme fall into two categories -- "basic requirements" in para. (a), and other ancillary benefits described in paras. (b) through (h).

Section 4 of CAP authorizes the Minister to enter into agreements with the provinces to provide for the "assistance" defined in s. 2.

The standard of assistance which the province must agree to is governed by s. 6(2)(a) and (b). Because of their importance I reproduce them in full, in English and in French.

(2) An agreement shall provide that the province

(2) Un accord doit prévoir que la province:

a) fournira l'aide financière ou une autre forme d'assistance publique à toute personne de la province qui est une personne nécessiteuse visée à l'alinéa a) de la définition de "personne nécessiteuse" à l'article 2, ou à l'égard d'une telle personne, dans une mesure ou d'une manière compatibles avec ses besoins fondamentaux;

b) tiendra compte, en décidant si une personne est visée par l'alinéa a) et en déterminant l'assistance publique à fournir à cette personne, de ses besoins matériels et des revenus et ressources dont elle dispose pour les satisfaire;

It is my conclusion that the interpretation which best accommodates the language of these sections is the following. Section 6(2)(a) sets out the minimum standards to which the provinces must agree if they are to obtain a contribution from the federal government. The English version is ambivalent, requiring only that the province "take into account" the basic requirements of the person in need. The French version makes the matter clear. Instead of "tiendra compte", the equivalent of "will take into account", the French version uses the word "compatible", closer to the English "compatible". "Compatible" suggests harmony between the basic requirements of the person in need and the aid provided. The province is not merely obliged to consider or "look at" the basic requirements of the person in determining what it will pay; it must provide a sum "compatible" with them.

This conclusion is reinforced by the use of the phrase "tiendra compte" in s. 6(2)(b). Section 6(2)(b) has a broader scope than s. 6(2)(a), referring to "budgetary requirements" rather than the narrower concept of "basic requirements." With respect to this broader range of assistance, neither the French nor the English version suggests that the province must meet certain needs; rather it need only take them into account.

Read together, s. 6(2)(a) and (b) indicate that the provinces must provide for the basic requirements of persons in need as defined in s. 2(a). With respect to the other benefits, those found in s. 2(b) to (h), they need only take into account the budgetary requirements and resources of the person in determining how much he or she should receive.

The provincial interveners argue that the use of "takes into account" in the English version of s. 6(2)(a) confirms that the scheme does not contemplate a minimum level of aid which the province must provide, but only requires that the provinces consider the basic requirements of the person in need. However, this argument cannot be made on the language of the French version. Since both versions are of equal value, we must seek the interpretation which best fits them both. "Takes into account" may mean either "consider" or "fulfil". "Compatible" in the French version, on the other hand, can mean only "fulfil" or "be consistent with"; it cannot mean "tiendra compte". It follows that the meaning which should prevail is "compatible" in the sense of fulfilling or being consistent with.

2. The Purpose of the Provisions

If "takes into account" in s. 6(2)(a) is read as requiring only that the provinces "look at" or "consider" "basic requirements", it is difficult to ascribe a purpose to s. 6(2)(a). It would not serve to ensure that the federal government's objects are furthered. Consideration of basic requirements without more would not serve to limit federal contributions to meritorious expenditures. A province, for example, would be free to pass an Act giving persons in need generous transportation allowances without more, and the federal government would be obliged to pay half the cost, provided that the province said it had "looked at" or "considered" providing for more basic requirements. Nor would the contribution necessarily further the objects of providing adequate assistance to persons in need, the prevention and removal of the causes of poverty, and the "encouraging the further development and extension of assistance and welfare services programs throughout Canada", mentioned in the preamble to CAP. And if these problems could be solved, the fact remains that the federal government would have no way of verifying whether a province had "considered" basic requirements or not. In short, to read s. 6(2)(a) as the intervening provinces suggest is to deprive it of meaning for all practical purposes.

It was argued that s. 6(2)(a) should be interpreted as allowing the provinces to pay some portion but not all of the "basic requirements", for example 50 percent, and still claim federal contribution. This, it was suggested, was the intent of the phrase "take into account." But if a province can lower the rate to 50 percent, why not 5 percent, why not 1 percent? In other words, this interpretation is, from a logical and practical point of view, really no different from saying that all the provinces need to do is to consider making an allowance for basic requirements and then make any minimal allowance for basic requirements they wish ‑‑ and at the same time claim federal contribution for such matters as work programs and transportation for persons in need. At this point, s. 6(2)(a) becomes completely redundant.

The common sense inherent in construing s. 6(2)(a) as imposing a requirement that the province actually provide basic requirements is supported by s. 6(2)(b), which requires that in determining who is a person in need and the assistance to be provided to him or her, the province "take into account the budgetary requirements of that person and the income and resources available to that person to meet those requirements". The use of the term "budgetary requirements" is more expansive than "basic requirements", and can be seen as referring not only to basic requirements but also to items (b) through (h) in the definition of "assistance".

By construing ss. 6(2)(a) and 6(2)(b) functionally in the context of the Act as a whole, a meaning can be assigned to each. Viewed thus, the function of s. 6(2)(a) is to make it a mandatory condition of receipt of federal assistance that the provincial scheme meet the "basic requirements" of persons in need as defined in s. 2. The purpose of s. 6(2)(b) is to ensure that in determining who is a person in need and in fixing the amount of the payment, whether for basic requirements or basic requirements plus other benefits referred to in s. 2, the needs and means of the recipient are taken into account.

3. The Legislative Debate

Recognizing that reference to legislative debates has sometimes been said to be of limited assistance and that it is the wording of the statute which must prevail (see Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, Re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297), the debates may nevertheless serve to confirm the appropriateness of a particular statutory interpretation (see R. v. Sullivan, [1991] 1 S.C.R. 489, per Lamer C.J., for the majority, at p. 503; R. v. Mailloux, [1988] 2 S.C.R. 1029, per Lamer J. for the Court at p. 1042; R. v. Vasil, [1981] 1 S.C.R. 469, per Lamer J. for the majority at p. 487). In this case the Parliamentary debates relating to the adoption of CAP support the conclusion that s. 6(2)(a) was intended to ensure that the provinces meet the "basic requirements" of persons in need. The Honourable Allan MacEachen described this as the "core" of the assistance envisaged by CAP, in a passage in which he used the phrase "take into account" to mean "cover" the cost of basic necessities.

The definition of assistance in the legislation sets out the scope of benefits for persons in need that may be supported through the plan. The core of this definition is contained in the reference to basic requirements; that is, the times that are essential to maintain even a minimum standard of living. These are food, shelter, clothing, fuel, utilities, household supplies and personal requirements. Assistance programs whose benefits fail to cover these items cannot be thought of as adequate and it is proposed, in signing agreements under the plan, that provinces will agree to provide assistance in amounts which take into account individual and family requirements for each of these items.

(House of Commons Debates, 1st Sess., 27th Parl. at p. 6921.)

Later in the debate (at pp. 7199-7200), the Minister reiterated that the provinces, at a minimum, must agree to these "basic requirements".

The hon. member for York South (Mr. Lewis) in the most serious speech given from his group said that there were no standards in the Canada Assistance Plan. Well, that is wrong because the bill itself provides that the basic requirements of recipients, including food, clothing, shelter, fuel, utilities, household supplies and personal requirements, must be met under the operation of this plan. Provinces must agree, under the agreement to be signed, to meet these basic requirements of individuals and provide them with adequate assistance to meet their needs. That is the standard.

He added (at p. 7229):

As I understand it, assistance means aid to persons in need of any of the following items which are contained in 2(a)(i) which are food, shelter, clothing, fuel, utilities, household supplies and personal requirements. In a sense this provides the basic group of items that must be shared in this particular plan and under which we expect that, in agreement with the provinces, there will be an obligation, as part of the sharing arrangement, to provide these basic requirements, including personal requirements.

Still later in the debate, the Minister distinguished between the two classes of benefits contemplated by CAP, one class mandatory, the other optional (at p. 7411).

I am afraid I am not making myself clear. We shall require, as part of an agreement, that the province shall provide adequately for the basic requirements of individuals -- food, clothing, shelter, fuel, utilities, household supplies and personal requirements. But the dollar value which is placed on these items either individually or in total is up to the province. We shall share any amount. Then, of course there is the other range of services in whose costs we shall share -- items incidental to carrying on a trade, care in a home for special care, travel and transportation, health care services and so on.

As a condition of an agreement, they [the provinces] must include willingness to meet the basic requirements of the individual. With respect to additional items, to take one example, say, health care services, a province may decide that it will provide those services to individuals in need. The province makes the decision and the federal government shares. There is that range of choice on items like travel and transportation, funerals and burials, and health care services, but the province undertakes to meet the basic requirements.

The debates in the House also show that one of the main purposes of CAP was to move from a "means test", which had been used in three of the four separate programs which CAP replaced, to a "needs test". This distinction was described by the Minister as follows (at p. 6408):

The needs test considers the actual requirements of individuals and families, as well as their resources, in determining the amount of assistance to be provided. This is in contrast to the means test which relates assistance to income and assets.

Parliament's concern with a needs test supports the conclusion that the point of s. 6(2)(b) was to incorporate the needs test into CAP by referring to budgetary requirements and income and resources, as opposed to a simple reference to income and resources. So the debates indicate that s. 6(2)(a) sets the minimum level of assistance, while s. 6(2)(b) provides that eligibility for that assistance shall be determined by a needs test.

4. The Adequacy Principle

An interpretation which ensures that at least the basic requirements of the person in need are satisfied complies with the principle that a court, faced with general language or contending interpretations arising from ambiguity in statutory language, should adopt an interpretation which best assures adequacy of assistance. This principle has been applied in a number of social welfare cases. In Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2, at p. 10, this Court stated:

Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re‑entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant. [Emphasis added.]

This principle was applied in Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513, at pp. 535, 559.

In Kerr v. Metropolitan Toronto (Department of Social Services, General Manager) (1991), 4 O.R. (3d) 430, the Ontario Court (General Division), Divisional Court, said, at p. 445:

The price of ambiguity in a social welfare statute is that the ambiguity will be resolved in favour of the applicant.

In the United States, courts have adopted the same principle in dealing with the Social Security Act. In Damon v. Secretary of Health, Education and Welfare, 557 F.2d 31 (2d Cir. 1977), at p. 33, Oakes J. noted:

This court has repeatedly held that "the Social Security Act is a remedial statute, to be broadly construed and liberally applied," Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969), "in consonance with its . . . humanitarian aims," Eisenhauer v. Mathews, 535 F.2d 681, 686 (2d Cir. 1976). See, e.g. Rosenberg v. Richardson, 538 F.2d 487, 490 (2d Cir. 1976), and authorities cited therein .... In practical terms the principles mean that, when a Social Security Act provision can reasonably be construed in favor of the one seeking benefits, it should be so construed.

And in Brown v. Bates, 363 F. Supp. 897 (N.D. Ohio. 1973), at pp. 902-3, it was said:

The Court does not believe Congress chose by enactment of the Work‑Study Program to draw the cycle of poverty tighter, but rather was attempting to break its bonds upon untrained poor. The Court will not allow the defendants to defeat this beneficient purpose by their own interpretation of the law, especially when that interpretation, however faithful it may be to the letter of the law, totally defeats the spirit of the law, and serves only a sterile administrative purpose.

In the case at bar, the interpretation best in accord with the spirit of CAP is that federal assistance is predicated upon a province providing at least for the basic necessities of those in need. Only that interpretation can ensure the "adequate assistance" to persons in need and the "prevention and removal of the causes of poverty and dependence on public assistance" referred to in CAP's preamble.

(b)Do the Deductions for Overpayment Violate the Minimum Requirements of CAP for Federal Contribution?

I have determined that it is a condition of federal funding under CAP that the provincial social assistance scheme provide to persons in need basic necessities, defined as "food, shelter, clothing, fuel, utilities, household supplies and personal requirements". The question is whether the deductions permitted by the Manitoba plan for overpayment violate this requirement.

While the province must provide "basic requirements", the level of assistance necessary to satisfy that requirement is fixed by the provinces under CAP. The Manitoba allowance for basic necessities includes food, clothing, personal needs, household supplies, shelter, utilities and fuel. This list corresponds exactly to the "basic requirements" in CAP. Any deduction from the amount allotted to provide for these items would therefore result in payments below the minimum level specified by CAP. In addition to the foregoing items, which would be routinely provided, the Manitoba allowance provides for food and shelter away from home, "special needs" (essential employment expenses, or a discretionary amount granted by the Minister), a housekeeper during illness, health care, funerals and care of children in special circumstances. While these items go beyond the "basic requirements" set out in CAP, and fall within the broader scope of "budgetary requirements", it is clear that they would be provided only in unusual circumstances and that none of them would enhance the spending position of the recipient, since they are all destined to reimburse third parties.

If recipients of social assistance in Manitoba never personally receive more than their basic requirements, it follows that any deduction will necessarily deprive them of a portion of their basic requirements, unless they have some other source of funds, such as a bank account or permitted earnings. Mr. Finlay, on the evidence, had neither, with the result that the deductions deprived him of the basic necessities of life.

This is the practical effect of the deductions recorded in the evidence. However, it is suggested that the SAA, as amended, is not itself in violation of CAP because it permits deductions only where they will not cause "undue hardship": s. 20(3). It is suggested, and was accepted by the trial judge, that since deductions beyond the basic necessities of life would always constitute "undue hardship", there is no conflict between the SAA and CAP. Alternatively, one might argue that the determination of "undue hardship" on a case-by-case basis, properly done, would seldom if ever violate the obligation to meet basic requirements which the Province accepts under CAP.

Thus the SAA, properly applied, is not inconsistent with CAP's requirement that the province provide for the basic requirements of persons in need. However, since the evidence demonstrates that at the time of trial some 11 percent or 5,000 Manitoba recipients of aid were suffering deductions beyond their basic requirements, we must then conclude that the policy of the government violates its own Act and its own agreement with the federal government under CAP, by which it undertakes, as a condition of contribution, to provide the basic requirements of persons in need.

It is argued that this result makes the provisions for recovery of overpayments in the CAP regulations and the SAA redundant. That is not the case. Repayment may be claimed from all sources, other than the basic amount which the person in need requires to live. This includes bank accounts and other assets, as well as earnings which the recipient may be allowed to retain under the scheme. In a case such as that of Mr. Finlay, who has no assets and no other income, this may render recovery of overpayments impossible. But in other cases, it may well be possible to recover overpayments. For example, in the case of a person who has received an overpayment through error or as a result of his fraud, the monies received or the assets they purchased might be available. The same would apply if the recipient has savings or earnings from other sources.

Two other arguments must be briefly addressed. Some of the provincial interveners argued that it was inappropriate to assess the adequacy of provision for social service by reference to a single month in isolation. It was argued that, viewed in a long enough time span, the recovery process merely takes back from a recipient of assistance the exact amount of the excess in payments received.

There are several reasons why this contention should not prevail. The long‑term accounting approach overlooks the human reality of persons in need. They have no savings, no reserves. To deny them their monthly allocation for basic needs is in fact to deny them their food, shelter and other basic necessities, an approach directly at odds with the philosophy behind CAP. It is, moreover, a fallacy that the overpayment was available for basic living requirements, the assumption on which the long-term accounting argument rests. A final reason for rejecting the long-term accounting approach is that it is only fair that the government of Manitoba, having chosen to calculate social service payments on a monthly basis, should be held to the same monthly basis in recapturing overpayments.

The other submission which should be addressed is the argument of some of the provincial interveners that it would be illogical to forbid a province from recovering overpayments when it could achieve the same effect by simply lowering its assessment of basic requirements in the province by 50 percent or any other proportion of the current level.

The first problem with this argument is the assumption that the provinces can arbitrarily lower the social assistance rates and still claim CAP contributions from the federal government. If we accept, as I have, the proposition that federal contributions are contingent on the province supplying "basic requirements" of food, shelter and other basic necessities, then a province cannot reduce the payments below this amount and claim under the scheme. Under CAP it is the province that fixes the scheme, but it must do so in accordance with the basic requirements of the scheme if it wishes to claim contribution from the federal government. The second difficulty with this argument is the problem of inferring from a general right of reduction across the board (assuming one exists) that there is a right to reduce the allotment of a particular recipient, without touching the others.

I conclude that the deductions for overpayment made by Manitoba in cases such as this reduce the amount of assistance below the federally prescribed minimum.

At the time of the trial, Manitoba had a two‑tier system of welfare. One tier is administered by the province. Here the province sets the rates. The other tier is administered by the municipalities. There, they set their rates. There is a wide differential between the rates set by the municipalities. Only one, the City of Brandon, establishes rates for basic necessities as high as the province.

The issue is not whether different rates may be justified for different areas of the province. Living expenses can vary from place to place. The issue is the narrower one of whether CAP requires the rates to be set by the provincial authority, or whether they can be set by municipal authorities without any input or requirement for approval by the provincial authority.

The language of CAP supports the view that it is the provincial authority which must determine the rates. Section 2 provides for a needs test for a "person in need" "established by provincial authority". That term is in turn defined as "the provincial Minister or other official or body specified by the province" in the relevant agreement. The 1967 Manitoba agreement follows this lead, stating that "The Minister of Welfare is the provincial Minister charged with the administration of the provincial law."

However, CAP does not require that the dollar rate for assistance be set by the province. Provided that the province establishes the test for a "person in need", the application of that test may be left to its delegates, the municipalities. Manitoba has established the test; s. 450(1) of the Municipal Act defines a "person in need" and that person's "basic necessities". "Basic necessities" covers the same items as "basic requirements" in CAP. Each municipality is required to provide in a by-law for persons in need and for the provision of "basic necessities". The trial judge found there was no evidence that the municipalities were not using a proper needs test, and that there was an adequate provision for appealing municipal decisions which might violate the provincial standard. In short, both the letter and the substance of CAP's requirements for fixing rates of social assistance were complied with.

I conclude that the policy of Manitoba of allowing rates to be set by municipalities without the requirement of approval by the provincial authority does not violate CAP.

3. Remedy

I agree with the Court of Appeal below that a blanket injunction against federal contributions to the cost of social assistance in Manitoba until the province complies with the minimum requirements of CAP is draconian and undesirable. It would cut off aid for a great many salutary programs, including child welfare, and has not been shown to be required to correct the problems which give rise to these proceedings. As MacGuigan J.A. put it below, at p. 816:

Such a consequence would . . . be totally out of proportion to the mischief sought to be remedied by the respondent. Moreover declarations are invariably honoured by governments and I see no necessity for other relief.

I share MacGuigan J.A.'s confidence that the province will move to bring its program into conformity with the requirements of CAP. Indeed, not to do so would put it at risk of losing all federal contribution, which is conditional on the provincial plan being in conformity with the conditions of CAP: s. 7.

The appropriate remedy is a declaration that the Manitoba scheme fails to comply with the conditions of federal contribution established by CAP in so far as it permits deductions which reduce levels below "basic requirements". If further relief should be required, I would grant liberty to apply.

4. Costs

Like the Court of Appeal, I am not satisfied that the overpayments to the respondent were caused by his deliberate actions. Moreover, he was recognized by the courts as having standing as a public interest plaintiff. I would confirm the decision of the Court of Appeal that he should have costs on a solicitor‑client basis, one‑half to be paid by the appellants, the other half by the Attorney General of Manitoba.

Disposition

I would dismiss the appeal, and grant a declaration that the plan of the Province of Manitoba fails to comply with CAP in so far as it permits deductions which reduce levels below "basic requirements". The respondent shall have his costs throughout on a solicitor‑client basis. Should any further relief be required, there is liberty to apply.

//Sopinka J.//

The judgment of Sopinka, Gonthier, Iacobucci and Major JJ. was delivered by

Sopinka J. -- I have had the benefit of reading the reasons of my colleague Justice McLachlin in this appeal. She concludes that the Province of Manitoba is in breach of the terms of the Canada Assistance Plan, R.S.C., 1985, c. C-1 (formerly R.S.C. 1970, c. C-1) ("CAP") by allowing deductions for overpayments such that an individual's allowance for a given month falls below "basic requirements". With respect, I am unable to agree with this conclusion. I will also deal with the alleged breach by the Province of Manitoba of CAP in permitting municipalities to establish the rates of social assistance. In respect of this issue, my colleague and I are in agreement as to the result.

Factual Background

The respondent, who suffers from permanent disabilities, is a recipient of a social allowance from the Government of Manitoba. Deductions from his assistance were made in order to permit recovery of three overpayments. The first overpayment, $207.70, related to shared accommodations; the second, $109.00, to excess moving costs; and the third, $796.00, to a Provincial Employment Program ("PEP") grant which the respondent did not disclose. The resulting deductions ranged from $6.00 to $8.43 per month. The respondent brought several appeals, pursuant to the Manitoba Social Allowances Act, R.S.M. 1987, c. S160 (formerly R.S.M. 1970, c. S160) ("SAA"), from these deductions. An appeal with respect to the PEP grant overpayment reached the Manitoba Court of Appeal: Re Finlay and Director of Welfare (Winnipeg South/West) (1976), 71 D.L.R. (3d) 597. All of these appeals were dismissed. The decision of the Court of Appeal preceded the amendment to s. 20 of the SAA which added s. 20(3) authorizing the deduction of payments subject to undue hardship.

The respondent then commenced this action in 1982. His standing as a public interest litigant was confirmed by this Court: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607. At trial Teitelbaum J. held that Manitoba's scheme for deductions for overpayments violated CAP, but that CAP did not prohibit municipal rate setting: (1989), 57 D.L.R. (4th) 211, 25 F.T.R. 45. The Federal Court of Appeal concluded that Manitoba was breaching CAP on both grounds: [1990] 2 F.C. 790, 71 D.L.R. (4th) 422, 115 N.R. 321.

The Scheme

The relevant provisions of CAP, the Canada Assistance Plan Regulations, the 1967 Agreement between the Government of Canada and the Province of Manitoba, the SAA, the Social Allowances Regulation, and The Municipal Act are set out in the reasons of McLachlin J.

Analysis

(1)Do Deductions to Permit Recovery of Overpayments Violate CAP and the Agreement?

In order to answer this question, it is first necessary to consider the nature and object of CAP and the scheme it establishes. As its full title states, CAP is "An Act to authorize the making of contributions by Canada toward the cost of programs for the provision of assistance and welfare services to and in respect of persons in need". It is a spending statute. This is confirmed by reference to its preamble which, while recognizing that "the provision of adequate assistance to and in respect of persons in need and the prevention and removal of the causes of poverty and dependence on public assistance are the concern of all Canadians", identifies Parliament's specific aim in enacting this legislation -- "the Parliament of Canada . . . is desirous of encouraging the further development and extension of assistance and welfare services programs throughout Canada by sharing more fully with the provinces in the cost thereof" (emphasis added). As McLachlin J. observes, the federal involvement is based entirely on its spending power. In my view, given the nature and objects of CAP the conditions attached to the federal government's contribution are not designed to dictate the precise terms of the provincial legislation. Rather, the conditions are designed to promote legislation which achieves substantial compliance with the objectives of CAP. It is from this perspective that the interpretation of this Act, including the terms set out in s. 6, should be approached. Ambiguities in the legislation should be resolved in so far as is possible on the basis of the interpretation which respects the overall purpose and objective of CAP.

A brief overview of the scheme established by CAP is as follows. Section 4 authorizes the Government of Canada to enter into agreements with the provincial governments to pay them contributions toward their expenditures on social assistance and welfare. Section 6 specifies terms that must be included in such agreements. Of particular relevance to this appeal are the terms provided for in s. 6(2)(a) and 6(2)(b). According to s. 7, all federal contributions are subject to these conditions and to observance of the undertakings contained in an agreement. Section 5 authorizes payments to the provinces. Broadly speaking it authorizes contributions amounting to half of a province's eligible expenditures.

What then is required of a province by virtue of the undertakings it must make in accordance with s. 6(2)(a) and 6(2)(b)? For the sake of convenience, I reproduce those provisions:

. . .

(2) An agreement shall provide that the province

These provisions are reflected in clauses 2(a) and 2(b)(ii) of the 1967 Canada-Manitoba Agreement. In interpreting these provisions, we must seek to give meaning to both of them in a manner that is consistent with the overall purpose of the statute. The words must be read in their context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act. The key phrase "take(s) into account" appears in the English version of both subsections; however the context makes it clear that these words may bear different meanings in each. The focus of the two provisions is different. Section 6(2)(a) is concerned solely with the level of assistance to be provided and emphasizes the primacy of an individual's "basic requirements" in establishing that amount. Section 6(2)(b) identifies factors that are relevant not only in setting the level of assistance, but also in determining who is a "person in need". It requires the province to "take into account" an individual's budgetary requirements, income and available resources in making those determinations. That different meanings may be attributable to "take(s) into account" in the two subsections is supported by reference to the French text. Section 6(2)(a) requires a province to provide assistance "dans une mesure ou d'une manière compatibles avec ses besoins fondamentaux" (emphasis added). The language of s. 6(2)(b), by contrast, requires that the province "tiendra compte . . . de ses besoins matériels et des revenus et ressources . . ." (emphasis added).

In my view s. 6(2)(a) requires assistance to be provided in an amount that is compatible, or consistent, with an individual's basic requirements. It thus requires something more than mere "consideration" of an individual's basic requirements. If that were all that were required, a province could provide almost any amount of assistance, including an amount far less than that which would be compatible with basic requirements, as long as it had turned its mind to such requirements. Such an interpretation would not even permit the federal government to limit its contributions to schemes that were of the general nature it wished to support. I cannot accept this as Parliament's intention. However s. 6(2)(a) does not necessitate an exact fit in the sense of requiring a province to provide an amount of assistance that "fulfils" or "equals" basic requirements for each payment period. The words chosen by Parliament do not suggest such a rigid requirement. Moreover some flexibility in the standard imposed upon the provinces is to be expected having regard for the context of CAP. It is, after all, a spending statute designed to encourage provinces to develop programs consistent with national objectives. Section 6(2)(b), as I noted earlier, is addressed at determining both who is a person in need and how much assistance should be provided. With respect to the latter, s. 6(2)(b) must be read in conjunction with s. 6(2)(a), which gives priority to basic requirements. I would therefore conclude that in s. 6(2)(b) the words "take into account" indicate that a province must consider these factors in making these determinations. Given my resolution of this question of statutory interpretation on the basis of the wording of the provision read in light of the overall scheme and object of the Act, I do not find it necessary to resort to less reliable guides to statutory interpretation such as legislative debates.

I now turn to the Manitoba legislation. Under the SAA and the Social Allowances Regulation, Manitoba provides an allowance for "basic necessities". Basic necessities include food, clothing, shelter, utilities, fuel, personal needs, special needs (essential employment expenses, or a discretionary amount granted by the Minister), a housekeeper during illness, essential health care, funerals and care of children in special circumstances. I agree with McLachlin J. that with the exception of items provided only in unusual circumstances, this list essentially corresponds with the "basic requirements" in CAP. However Manitoba also provides for deductions to be made from this basic amount to permit the recovery of overpayments. Section 20(3) of the SAA provides:

This provision is only triggered when it is determined that an individual has previously received an amount in excess of that to which she is entitled under the provincial legislation, in other words an amount in excess of "basic necessities" which will generally correspond to "basic requirements" as that term is defined in CAP. The effect of this provision is to allow for the gradual recovery of an amount that should not have been paid out in the first place. In Manitoba the policy is to deduct 5 percent of the total allowance or the portion of the allowance given for "personal requirements". Once that recovery is completed the individual will, if her payments over the entire duration are considered, have received exactly that to which she is entitled. Thus she will have received an amount consistent with basic requirements. It is not incompatible with the scheme established by CAP that a person in need who has been overpaid be required to pay the excess back. There are only limited resources to go around. If there are overpayments to some that cannot be recovered, in the long term others will suffer.

Moreover, provision for the recovery of overpayments is foreseen by CAP and the Regulations enacted thereunder. In 1971 the Canada Assistance Plan Regulations, now C.R.C. 1978, c. 382, were amended to include overpayments within the costs to be shared under s. 5 of CAP. Not surprisingly, in agreeing to share the cost of overpayments, the federal government wanted to ensure that provision would be made for the recovery of such payments which, by definition, were above and beyond what should have been made. Regulation 3(b)(iv) of the Canada Assistance Plan Regulations provides:

For the purposes of

(b) paragraph 5(1)(a) of the Act, "cost to the province and to municipalities in the province" in a year means payments made in the year

The Manitoba plan for preventing and recovering overpayments received federal approval on February 29, 1972. At that time deductions from an individual's social allowance payments were made under what is now s. 9(1) of the SAA, subject to the right of appeal to the appeal board, a provincial agency, on any of the grounds of unfair treatment in what is now s. 9(3): Re Finlay and Director of Welfare (Winnipeg South/West), supra. In 1980, s. 20(3) of the SAA was added, specifically limiting deductions to recover overpayments to amounts that "would not cause undue hardship to the recipient". The right of appeal pursuant to s. 9 remains, including the ground of appeal set out in s. 9(3)(e) that the amount of social allowance or municipal assistance granted is insufficient to meet the individual's needs. The standard of undue hardship and this right of appeal address the concerns expressed by McLachlin J. that the amounts received as overpayments will already have been spent. The respondent submitted, however, that in the past the Board has not applied the test in s. 20(3) on an individual basis in an appeal under s. 9(3) but instead has applied a pre-determined formula as to the amount which can be deducted. Moreover, he contends that an appeal to the Court of Appeal was unsuccessful. A review of the evidence on this point does not support this contention. The overpayments and deductions all preceded the enactment of s. 20(3). They could not therefore have been the subject of an appeal to the Board on the basis of s. 20(3). The appeal to the Court of Appeal which resulted in the 1976 decision in Re Finlay and Director of Welfare, supra, did not deal with s. 20(3) because it was not in force. Indeed, the issue in that appeal was whether the Director of Welfare had the authority to deduct overpayments under the legislation as it then stood. The Court of Appeal decided that the Director did have the authority. Thereafter s. 20(3) was added clarifying the Director's power and imposing a limitation on it. Proceedings before the Board and the Court of Appeal in which the respondent has been involved in the past in no way limit the scope of s. 20(3) as a test which is designed to be applied on an individual basis so as to prevent undue hardship as a result of deductions in an individual case.

I therefore conclude that deductions from an individual's social assistance to permit recovery of overpayments do not violate CAP or the Agreement between Manitoba and the federal government.

2. Does Setting of Assistance Rates by Municipalities Violate CAP?

The second aspect of the Manitoba scheme challenged by the respondents is the establishment of dollar amounts or rates of assistance by municipalities under the provisions of The Municipal Act. As my colleague points out, this issue is not that there is a variation in the rates which constitute the dollar amounts of the list of items that comprise what is labelled "basic necessities". The issue is whether "CAP requires the rates to be set by the provincial authority" or whether these amounts can be set by by-laws passed by municipalities in accordance with criteria that conform to the dictates of CAP.

In my view there is nothing in CAP or the Agreement that requires these rates to be set by the provincial authority and prohibits the scheme adopted by Manitoba. The role identified in CAP for the province or provincial authority, which in the case of Manitoba is the Minister of Welfare, is to establish the applicable test or criteria for the provision of assistance. Section 2 of CAP requires the provincial authority to determine the test for a "person in need", and ss. 6(2)(a) and 6(2)(b) require the province to agree to provide assistance to persons in need with reference to "basic requirements", "budgetary requirements", and income and resources. Section 2(2) of the CAP Regulations defines "budgetary requirement" to include the list of basic requirements plus other items that are deemed to be essential. However, nowhere does CAP require that the actual dollar rates for assistance be set by the provincial authority. This is consistent with the fact that such rates may legitimately vary significantly among municipalities in accordance with local conditions and indeed in different localities in a municipality. These conditions would be known to the council of the municipality which is in a much better position to fix these amounts than the Minister. The latter would require a vast amount of information in order to set or indeed approve rates for various municipalities.

The scheme which CAP and the Agreement establish clearly involves the municipality in important decisions relating to the administration of welfare in the province. Section 2 of CAP defines a "provincially approved agency" as any department of government, person or agency that is authorized by provincial law or the provincial authority to "accept applications for assistance, determine eligibility for assistance, provide or pay assistance or provide welfare services" that is listed in a schedule to the agreement. Representatives of the various municipalities are listed in Schedule B to the Manitoba Agreement as provincially approved agencies. Pursuant to s. 4 of CAP the agreement with a province may provide for payment with respect to assistance provided by a provincially approved agency.

It is therefore sufficient if the province has established appropriate criteria which conform with CAP for the identification of persons in need and the determination of the amount of assistance to be provided. Manitoba has done this in The Municipal Act. In s. 450(1) of the Act, Manitoba has defined a "person in need" as a person who lacks "basic necessities" or a dependant of such a person. "Basic necessities" are defined in the same terms as in the SAA, which, as I have already observed, covers at least the same items as "basic requirements" in CAP. The council of each municipality is required to provide by by-law for the granting of assistance to "persons in need" in the municipality who lack "basic necessities" and who are not qualified to receive a social allowance, and for the regulating and prescribing of conditions under which such assistance is to be given to ensure that the "basic necessities" of such persons are met (s. 451(1)). They thus provide for assistance to be granted in accordance with the criteria adopted by the province in conformity with CAP. At trial Teitelbaum J. held, at p. 228, that "[n]o evidence was made to show that the municipalities are not using a proper needs test". There is no reason to reject this finding. In view of this finding it follows that the various municipalities are using substantially the same list of items to provide basic necessities but the variation in rates occurs either by reason of a difference in actual cost of these items or by reason of a variation in the cost figures used.

A person aggrieved by this variation is entitled to appeal to the appeal board under s. 9 of the SAA. Section 451(4) of The Municipal Act provides that such an appeal can be taken with respect to any decision affecting the application of a person in need. The appeal board is the Social Services Advisory Committee set up under the Social Services Administration Act, R.S.M. 1987, c. S165, and is a provincial body. Accordingly, a mechanism is provided for achieving uniformity, to the extent possible, in the dollar amounts which are applied to the items that make up the basic necessities of a person in need. Some variation is inevitable due to local conditions. The existence of variations may be due to the under-utilization of the right of appeal or to other factors. It would be pure speculation for this Court to seek to attribute a specific reason for these variations. But, in any event, that is not the issue here.

Disposition

I would therefore allow the appeal, set aside the judgments below and dismiss the actions. In view of the public importance of the issues raised by the respondent I would not award costs to the appellant in the courts below. In accordance with the order granting leave to appeal herein the respondent is entitled to the costs of the appeal to this Court on a party and party basis. Given the resolution of the issues which I would make I would not award costs on a higher scale.

Appeal allowed, La Forest, L'Heureux‑Dubé, Cory and McLachlin JJ. dissenting.

Solicitor for the appellants: John C. Tait, Ottawa.

Solicitors for the respondent: Taylor, McCaffrey, Chapman, Winnipeg.

Solicitors for the intervener the Attorney General of Quebec: Dominique Rousseau, André Gaudreau and Louis Rochette, Ste‑Foy.

Solicitor for the intervener the Attorney General of Manitoba: The Deputy Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General for Alberta: Beverley Bauer, Calgary.

Solicitor for the intervener the National Anti‑Poverty Organization: Arne Peltz, Winnipeg.

Cases Cited

By Sopinka J.

By McLachlin J. (dissenting)

Statutes and Regulations Cited

The Issues

The Scheme

Judgments Below

Federal Court of Canada, Trial Division (1989), 57 D.L.R. (4th) 211

Federal Court of Appeal, [1990] 2 F.C. 790, 71 D.L.R. (4th) 422, 115 N.R. 321

Discussion

1. Does the Deduction of Overpayments Violate CAP?

(a)What Amount if Any Must the Province Provide to a Person in Need in order to Meet the Conditions for Cost Sharing under CAP?

1. The Wording of CAP

2. The Purpose of the Provisions

3. The Legislative Debate

4. The Adequacy Principle

(b)Do the Deductions for Overpayment Violate the Minimum Requirements of CAP for Federal Contribution?

2.Whether CAP Permits Rates for Social Assistance to be Set by the Municipalities

3. Remedy

4. Costs

Disposition

Factual Background

The Scheme

Analysis

(1)Do Deductions to Permit Recovery of Overpayments Violate CAP and the Agreement?

2. Does Setting of Assistance Rates by Municipalities Violate CAP?

Disposition

Cases Cited

By Sopinka J.

By McLachlin J. (dissenting)

Statutes and Regulations Cited

The Issues

The Scheme

Judgments Below

Federal Court of Canada, Trial Division (1989), 57 D.L.R. (4th) 211

Federal Court of Appeal, [1990] 2 F.C. 790, 71 D.L.R. (4th) 422, 115 N.R. 321

Discussion

1. Does the Deduction of Overpayments Violate CAP?

(a)What Amount if Any Must the Province Provide to a Person in Need in order to Meet the Conditions for Cost Sharing under CAP?

1. The Wording of CAP

2. The Purpose of the Provisions

3. The Legislative Debate

4. The Adequacy Principle

(b)Do the Deductions for Overpayment Violate the Minimum Requirements of CAP for Federal Contribution?

2.Whether CAP Permits Rates for Social Assistance to be Set by the Municipalities

3. Remedy

4. Costs

Disposition

Factual Background

The Scheme

Analysis

(1)Do Deductions to Permit Recovery of Overpayments Violate CAP and the Agreement?

2. Does Setting of Assistance Rates by Municipalities Violate CAP?

Disposition

Cited By (1 case)

Québec (Attorney General) v. Canada, 2011 SCC 11, [2011] 1 S.C.R. 368

Cited By (1 case)

Québec (Attorney General) v. Canada, 2011 SCC 11, [2011] 1 S.C.R. 368