Executive Summary: Key Legal and Evidentiary Issues

• Proceeds from the sale of foreign assets (property and vehicle in Turkey) were deemed available resources under EIA rules, despite never being transferred to Canada.

• The applicant argued reliance on intake guidance that foreign assets need not be reported unless funds were brought into Canada.

• Allegations of procedural unfairness included mischaracterization of the applicant's case and failure to consider refugee vulnerabilities.

• Section 15.2.9 of the EIA Administrative Manual was raised regarding exemptions for lump sum replacements for lost assets when they are not available for current maintenance.

• A discrepancy arose regarding whether the $3,400 church gift was included in the overpayment calculation, which was later rectified.

• Leave to appeal required demonstrating a question of law or jurisdiction, case importance beyond the immediate dispute, and an arguable case with reasonable prospects of success.

Background and arrival in Canada
Hulya Gullu and her husband arrived in Manitoba as refugees from Turkey in October 2018. Upon arrival, they applied for employment and income assistance (EIA) under The Manitoba Assistance Act. During their intake interview, the couple disclosed that they owned property and a vehicle in Turkey. They were advised that these assets did not need to be reported unless funds from them were brought into Canada.

Sale of foreign assets and use of proceeds
On May 8, 2019, the Gullus sold their property in Turkey for just over 210,000 Turkish lira, of which they received only 110,000 Turkish lira (about C$21,000). The money they received from the sale was used to pay debts that they owed in Turkey. Between December 2018 and January 2019, their vehicle was also sold for slightly over $6,000, with the money used to cover credit card debts and loans. Documentation with respect to the sale of the vehicle was not available. The Gullus maintained that because these funds were never brought into Canada, they did not need to be reported.

Church donation and department inquiry
In February 2020, bank statements showed a large e-transfer to the Gullus, which was a donation from a church group of friends so the family could purchase a vehicle. The donation totalled $3,700, of which $3,400 was considered by the director as a gift after applying the $100 per person gift exemption. In May 2020, the EIA department wrote to the Gullus requesting updated information about the sale of their Turkish assets. The Gullus provided the requested information via email and advised that the funds were never brought into Canada.

Overpayment assessment
After receipt of the information from the Gullus, the director concluded that the amounts received from the sale of the assets in Turkey and the donation from the church group were assets available to the Gullus, and therefore, they had received overpayments under the program. In a letter dated August 31, 2020, the department advised that it was seeking repayment of $15,513.87, calculated as follows: $21,778.35 from the property sold in Turkey, $6,335.52 from the vehicle sold in Turkey, and $3,400 from the church donation ($3,700 less $100 per person as gift exemption), less a $16,000 liquid asset exemption for a family of four.

Appeal to the Social Services Appeal Board
On September 3, 2020, Mr. Gullu responded to the letter advising that he would be appealing the decision. An appeal was filed on June 9, 2025, outside of the three months stipulated in the board policy for timely appeals. The board found extenuating circumstances and allowed the appeal to proceed. Before the board, the Gullus argued that they had acted in good faith and followed the guidance given at intake. They also pointed out that paying the debts was essential, as failure to do so could have serious consequences if the family ever returned to Turkey, which they planned to do. Acknowledging possible misunderstandings and communication differences about how legislation, regulations and policies would be interpreted, the board nevertheless accepted the department's position that EIA rules require sale proceeds from liquid assets be reported and used for living expenses prior to paying off debts as the EIA is a program of last resort. It concluded that the department had correctly assessed the overpayment of $15,513.87.

Policy provisions at issue
The applicant specifically cited section 15.2.9 of the EIA Administrative Manual, which, according to the applicant, exempts lump sum replacements for lost assets when they are not available for current maintenance. The applicant alleged that the proceeds from the property and vehicle sales in Turkey were never received by the Gullus and were instead deposited directly into a Turkish bank, where they were seized by the bank to cover existing debts, making them never accessible to the household in Canada. The court found this argument problematic because the director and the board relied upon the information contained in the June 30, 2020 email from Mr. Gullu, where he indicated the funds were used for purposes of paying outstanding debts and loans. There was no suggestion of forced seizure or coercion by the bank or government authorities or unavailability to be transferred. The court determined that the question of whether the funds were in fact used for paying debts and loans is a factual issue and not one of interpretation.

Application for leave to appeal
The applicant sought leave to appeal to the Manitoba Court of Appeal under section 23(1) of The Social Services Appeal Board Act, which provides for an appeal on any question involving the board's jurisdiction or on a point of law after obtaining leave from a judge of the Court. The court outlined that leave requires: (a) that the question must be truly one only of jurisdiction or of law and not one that involves the Court in an assessment of factual issues; (b) it must be a case that warrants the attention of the Court, namely, it must be of importance not just for the immediate case but also in determining similar disputes that may arise in the future; and (c) there must be an arguable case of substance, namely, one with a reasonable chance of success.

Court's analysis of the grounds
The court examined six grounds advanced by the applicant, comprising three relating to errors of law and three to allegations of procedural unfairness. On the first procedural unfairness allegation that the board mischaracterized the applicant's case by suggesting she was relying upon a criminal assault as a reason to cancel her overpayment, the court found that while the board did note the assault, it did not refer to the delay as part of its reasoning to deny the appeal and in fact accepted the events surrounding the assault in deciding to allow the appeal to proceed notwithstanding the lengthy delay. On the second allegation regarding failure to consider the good faith reliance on intake advice, the court found the board acknowledged possible misunderstandings but concluded that the rules required proceeds from liquid assets to be reported and used for living expenses. The court characterized this as at best an issue of mixed fact and law and not a breach of procedural fairness. On the third allegation regarding failure to consider the refugee context and vulnerability when requiring documentary proof from Turkish banks, the court noted this argument was not initially raised by the Gullus when asked for information by the department, and there was no direct evidence presented that such a risk existed.

Resolution of the church gift issue
It should be noted that the board was under the impression that the overpayment amount did not include the money received by the Gullus from their friends at church. However, at the hearing, it appeared that contrary to what had been asserted by the board in its reasons, the department had in fact included $3,400 of the gift from the church in the amount to be repaid. At the court's request, counsel for the department confirmed that this was the case and that the department was not pursuing repayment of that portion. The amount of the requested overpayment was reduced to $12,113.87. The court found that while the board's reasons were based upon incorrect information provided by the department, which has since been rectified, that does not form a basis for an appeal on the grounds of an error of law or of an injustice.

Outcome
The Court of Appeal denied leave to appeal, finding that none of the grounds raised by the applicant set out an arguable error of law or of jurisdiction with a reasonable prospect of success sufficient to ground an appeal. The court was also of the view that none of the proposed grounds of appeal raise issues that warrant the attention of the Court given that they are fact-specific and particular to the issue between the parties before the board. The Director, Access River East was the successful party, with the Gullus remaining liable for the reduced overpayment of $12,113.87. The court ordered that there will be no costs.