Supreme Court of Canada
Alden v. Gaglardi et al., [1973] S.C.R. 199
Date: 1972-10-18
Ross Alden, suing on his own behalf and on behalf of all other persons in the Province of British Columbia who have become unemployed and persons in need as the result of a strike or lockout Appellant;
and
P.A. Gaglardi, Minister of Rehabilitation and Social Improvement
E.R. Rickinson, Deputy Minister of Rehabilitation and Social Improvement
J.A. Sadler, Director of Social Welfare Attorney-General of British Columbia Respondents.
1971: December 3; 1972: October 18.
Present: Martland, Ritchie, Hall, Spence and Pigeon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Social assistance—Individuals becoming unemployed as result of strike or lock-out excluded from benefits—Whether respondents in formulating policy acting within power and authority conferred by Act—Test for determining “persons in need”—Social Assistance Act, R.S.B.C. 1960, c. 360—Canada Assistance Plan, 1966-67 (Can.), c. 45.
The appellant brought a representative action against the respondents for a declaration that he was entitled to have his application or applications for social assistance pursuant to the Social Assistance Act, R.S.B.C. 1960, c. 360, The Canada Assistance Plan, 1966-67 (Can.), c. 45, and the Federal-Provincial Agreement between Canada and British Columbia of March 10, 1967, considered on its or their merits, and that the respondents had no right to exclude him from social allowance or any other form of social assistance upon the ground that he had become unemployed and a person in need as a result of a lock-out or a strike. He then brought a motion for an injunction until the trial of the action restraining the respondents from disqualifying him from eligibility for social allowance or any other form of social assistance by reason of
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the fact that he had become unemployed and a person in need as a result of a lock-out or a strike.
The motion for the injunction was, by consent, treated as the trial of the action. The trial judge dismissed the action and his judgment was affirmed by the Court of Appeal. An appeal, with leave, was then brought to this Court.
Held: The appeal should be dismissed.
It is the test established by the provincial legislation (the Social Assistance Act) which must be taken as the measure of a “person in need” for the purpose of the Canada Assistance Plan and any agreement made thereunder just as it controls the meaning of those words as used in regulations established by the Director of Social Welfare under the provisions of s. 13 (d) or the Act.
The need referred to in the relevant regulation means “need” as contemplated by s. 3 of the Act which establishes and limits the conditions governing the granting of “social assistance” out of the funds provided by the Legislature for the purpose and the individuals to whom such assistance may be granted are confined by that section to those “who through mental or physical illness or other exigency are unable to provide in whole or in part by their own efforts, … necessities essential to maintain or assist in maintaining a reasonably normal and healthy existence.” The language of the section does not require the granting of social assistance to individuals who are fit and able to provide through their own efforts the necessities essential to maintain a reasonably normal and healthy existence, but who have been temporarily deprived of their source of income by reason of a labour dispute.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], affirming a judgment of Dohm J. Appeal dismissed.
T.R. Berger and D.J. Rosenbloom, for the appellant.
L.G. McKenzie, Q.C., and T.R. Braidwood, for the respondents.
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The judgment of the Court was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of British Columbia affirming the judgment rendered at trial by Mr. Justice Dohm whereby he dismissed a representative action brought by “Ross Alden suing on his own behalf and on behalf of all other persons in the Province of British Columbia who have become unemployed and persons in need as the result of a strike or lockout.”
The claim of the appellant is described in the endorsement on the Writ of Summons in the following terms:
1. A declaration that the Plaintiff is entitled to have his application or applications for social assistance pursuant to the Social Assistance Act, R.S.B.C. 1960, Chapter 360, and regulations made thereunder, the Canada Assistance Plan, S.C. 1966-67, Chapter 45, and regulations made thereunder, and the Federal Provincial Agreement between the Government of Canada and the Government of the Province of British Columbia dated the 10th of March, 1967, considered on its or their merits and without being disqualified from eligibility for social allowance or any other form of social assistance upon the ground that the Plaintiff became unemployed and a person in need as a result of a lockout or a strike, and that the Defendants have no right to exclude the Plaintiff from social allowance or any other form of social assistance upon the ground that he became unemployed and a person in need as a result of a lockout or a strike.
2. An injunction restraining the Defendants from disqualifying the Plaintiff from eligibility for social allowance or any other form of social assistance by reason of the fact that the Plaintiff became unemployed and a person in need as a result of a lockout or a strike.
The matter, however, came on for hearing before Mr. Justice Dohm pursuant to a motion for an interim injunction enjoining the respondents in manner aforesaid which was supported by the affidavits of Ross Alden and of the Director of the British Columbia Federation of Labour.
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Alden’s affidavit disclosed that he was locked out from his employment as an insulation mechanic in the City of Vancouver on April 14, 1970, and that when he applied for social assistance on April 25th, a social worker told him that he was ineligible because he was unemployed as a result of being locked out, but that he was otherwise eligible. Alden’s affidavit further disclosed that when he applied again for social assistance on June 17, 1970, he was told that he was still ineligible on the ground that he “had become unemployed as a result of being locked out”, but that when he made application on June 18th he was given food vouchers for two weeks. The written “application for social allowance” pursuant to which the food vouchers were granted, is attached as an exhibit to the affidavit and it discloses that at that time Alden had $150 in the bank, was the owner of a 1961 Chevrolet car and was living in a rented house.
By consent of all parties the proceedings on the motion were treated as the trial of the action and although by the time of the hearing Alden had returned to his employment and the matter had become academic as far as he was concerned, Mr. Justice Dohm nevertheless felt that in view of the fact that the proceedings had been commenced in a representative capacity and the issues raised were of importance to the general public, he should proceed with the hearing.
Although both affidavits filed in support of the motion for injunction indicate that before the date of that motion those responsible for administering the Social Assistance Act, R.S.B.C. 1960, c. 360 (hereinafter referred to as the “Act”) had adopted the policy of providing “assistance in kind” in the form of food vouchers to Alden and those whom he represented, the matter was nevertheless treated in both Courts below as raising the sole question of whether the responsible officials had exceeded the powers given to them by the Act “when they enacted the ‘policy’ that people who have become unemployed as a result of a strike or a lockout did not qualify for social assistance”, and I propose to
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deal with this appeal on the basis that no other question arises.
It was stressed on behalf of the appellant that the Canada Assistance Plan, 1966-67 (Can.), c. 45, and the regulations made thereunder, and the Federal-Provincial Agreement between the Government of Canada and the Province of British Columbia, made pursuant thereto, were concerned primarily with “persons in need” and reference was made to para. 2 of the agreement which provides:
2. The Province agrees
(a) to provide financial aid or other assistance to or in respect of any person in the Province of British Columbia who is a person in need described in subparagraph (i) of paragraph (g) of Section 2 of the Act …
Reference to Sections 2(g) of the Canada Assistance Plan discloses that:
“person in need” means
(i) 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 that person’s budgetary requirements and the income and resources available to him to meet such requirements) to provide adequately for himself, or for himself and his dependants or any of them …
It is the test established by the provincial legislation which must be taken as the measure of a “person in need” for the purpose of the Canada Assistance Plan and any agreement made thereunder just as it controls the meaning of those words as used in regulations established by the Director of Social Welfare. In this regard it appears to me that s. 3 of the Social Assistance Act is the controlling provision. That section reads:
3. Social assistance may be granted out of funds appropriated by the Legislature for the purpose to
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individuals, whether adult or minor, or to families, who through mental or physical illness or other exigency are unable to provide in whole or in part by their own efforts, through other security measures, or from income and other resources, necessities essential to maintain or assist in maintaining a reasonably normal and healthy existence.
It is to be noted that the funds in question are not required to be granted but rather that under s. 3 it is discretionary with those entrusted with the administration of the Act as to whether or not social assistance is to be granted and for the purpose of the administration of the funds so granted, the statute provides by s. 13 that the Director of Social Welfare shall be entrusted with the following authority:
13. The Director …
(d) subject to the approval of the Minister is empowered to establish regulations and formulate policies not inconsistent with this Act for the administration of social assistance throughout the Province as a whole and for the local administration thereof; …
Amongst the regulations passed pursuant to this authority is Regulation 4 which reads:
The circumstances of each applicant shall be investigated by a social worker or other qualified person designated by the Director or Regional Administrator. The need of the applicant shall be the determining factor in granting assistance and the amount thereof.
As I have indicated, I think that the need here referred to must mean “need” as contemplated by s. 3 of the Act which establishes and limits the conditions governing the granting of “social assistance” out of the funds provided by the Legislature for the purpose and the individuals to whom such assistance may be granted are confined by that section to those “who through mental or physical illness or other exigency are unable to provide in whole or in part by their own efforts, … necessities essential to maintain or assist in maintaining a reasonably normal and healthy existence.”
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I cannot find that the language of the section requires the granting of social assistance to individuals who are fit and able to provide through their own efforts the necessities essential to maintain a reasonably normal and healthy existence but who have been temporarily deprived of their source of income by reason of a labour dispute.
For all these reasons I agree with the Court of Appeal and the learned trial judge that the authorities charged with the administration of the Act were acting within the power and authority conferred by the Act in formulating the policy that individuals who have become unemployed as a result of a strike or lock-out do not qualify for social assistance. I would accordingly dismiss this appeal, but under the circumstances would make no order as to costs.
Appeal dismissed.
Solicitor for the appellant: Thomas R. Berger, Vancouver.
Solicitors for the respondents: Braidwood, Nuttall, MacKenzie & Brewer, Vancouver.