March 25, 2009

Nova Scotia: mandamus precludes prevarication

Filed under: 1 — ruleswatch @ 10:27 am

In Carl Smith v. The Department of Community Services (Income Assistance) 2009 NSSC 86, Scaravelli J., has scuttled the Department of Community Services’ apparent attempts to stonewall the decision of its own Appeal Board by asking for yet further information – and consequently delaying relief – to an appellant who had overturned a denial of support before the Board.The department’s brief saw its actions quite righteously. Its brief said:

While the appeal board may have determined the applicant’s eligibility within the context of the information before it, the appeal board decision does not conclude the issue of eligibility. In this case, the department clearly had the right to request additional information from the applicant; especially when presented with new information at the appeal hearing that raised questions about the applicant’s finances.


The Court disagreed. Observing that, “[12] The Respondent’s position appears to be that it can ignore an Appeal Board decision simply by demanding further information even when the Appeal Board has made a finding on eligibility. ..” it granted mandamus.

The Court said giving one or two observers a tinge of indigestion:

[6] Our courts have repeatedly adopted the criteria from

Rawdon Realties Limited v. Rent Review Commission (1982), 56 N.S.R. (2d) 403 (N.S.T.D.), where the court stated:


(Some people have argued that authorities apparently setting out and relying on preconditions to mandamus as a checklist, such as Rawdon can appear to attach a sense of restrictiveness to the remedy that it perhaps not so clearly should have)


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