Statutory interpretation & social justice

Jennifer Taylor

There is a role for social justice in statutory interpretation, according to the Nova Scotia Court of Appeal in the recent decision of Sparks v Nova Scotia (Assistance Appeal Board).

This case is about a Nova Scotia family with three children receiving social assistance under the provincial Employment Support and Income Assistance Act. Their social assistance came in a monthly cheque, payable to the father, which had “three components”: a personal allowance for the father; a personal allowance for the mother; and a shelter allowance based on the size of the family. When the father did not sufficiently satisfy his caseworker that he was looking for work, he became ineligible for benefits and the family’s entire payment was suspended for 6 weeks.

The father unsuccessfully appealed the suspension to the Assistance Appeal Board. Judicial review was also unsuccessful.

The narrow legal issue before the Court of Appeal was whether it was reasonable (in Dunsmuir terms, “within a range of acceptable outcomes”) for the Assistance Appeal Board to uphold the suspension of the family’s entire benefit payment because of the father’s non-compliance.

The Court of Appeal, in a unanimous decision written by Chief Justice MacDonald, found it was not reasonable: “Simply put, denying innocent people, living in poverty, the funds they need for financial survival cannot be sustained by any reasonable interpretation of the governing legislation.

The provision at issue is contained in the regulations to the Employment Support and Income Assistance Act and provides for the ineligibility of an “applicant or recipient” who unreasonably refuses to seek employment:

Refusal to accept employment

20 (1) An applicant or recipient is not eligible to receive or to continue to receive assistance where the applicant or recipient, or the spouse of the applicant or recipient unreasonably refuses

(a) to accept employment, where suitable employment is available;

(b) to participate in employment services that are part of an employment plan; or

(c) to engage in an approved educational program that is part of an employment plan, where an appropriate approved educational program is available.

Before the Court of Appeal, the father agreed that he, as payee, became ineligible, so the issue was whether the other family members became ineligible “recipients” such that the whole family’s payment had to be suspended.

The Court agreed with the intervenors—the Women’s Legal Education and Action Fund (LEAF), along with the affected mother and children—that “recipient” in the context of section 20 meant only the defaulting party, so other beneficiaries would not become ineligible for social assistance as a result of the “recipient’s” default.

The route to this result involved the oft-cited “modern approach” to statutory interpretation, as reviewed in cases like Bell ExpressVu Ltd Partnership v Rex, 2002 SCC 42. Part of this approach, according to Chief Justice MacDonald, involves interpreting the legislation “in a manner that is both reasonable and just.”

After conducting “a contextual and purposive analysis” of the section and the legislative scheme, the Court found the provision was ambiguous, which opened the door to considering “other interpretive aids.” This is where considerations of social justice were able to shine. The key factors included:

  • The Charter value of equality, gender equality in particular; the Court accepted that the regulations should not be interpreted in a way that “would see a mother and children punished for the shortcomings of the husband.” The Court quoted an extensive passage from the intervenors’ submissions on the “feminisation of poverty” and the “disproportionate impact of poverty on women and children.”
  • Canada’s / Nova Scotia’s international human rights obligations to provide social security, in the International Covenant on Economic, Social and Cultural Rights, and the UN Convention on the Rights of the Child.
  • The principle that ambiguous social welfare legislation should be interpreted “in a manner that benefits the claimants” meaning “in this case the mother and children.”
  • The vulnerability of those living in poverty, and the disproportionate poverty rates of racialized families (the family in this case was from a racialized community).

Together, these interpretive points led the Court to conclude that only the father’s “personal allowance should have been suspended” from the family’s social assistance payment, resulting in a monthly reduction of $255 rather than a complete cut-off.

This decision shows why there should be a role for social justice in statutory interpretation. Asking what is “reasonable and just” is an important overarching guideline in the interpretive process, regardless of whether the provision at issue is ambiguous. And if a provision is found to be ambiguous, that enables review of other social justice considerations, like whether a particular interpretation would promote gender equality, or work to alleviate the disproportionate impacts of poverty.

This kind of social context should, where possible, become a regular part of the statutory interpretation exercise, whether or not a provision is ambiguous, to help courts determine what meaning is most reasonable and best serves social justice.

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