Executive Summary: Key Legal and Evidentiary Issues

• Adequacy and timeliness of the Ministry’s internal appeal process for a social assistance overpayment, including its initial failure to process the applicant’s appeal.
• Use and admissibility of affidavit evidence at the pre-hearing stage of a judicial review, particularly in an application to strike, versus reliance solely on the tribunal record.
• Impact of the applicant’s refusal to participate in de novo statutory appeals (RAC and SSAB) on his ability to pursue judicial review of the overpayment assessment.
• Application of the discretionary doctrine of “adequate alternative remedy” and the requirement to exhaust statutory appeal routes before seeking judicial review.
• Consideration of alleged procedural unfairness, bias, and racism in circumstances where the applicant declined to use procedural safeguards available in the appeal process.
• Whether judicial review remained appropriate or had become moot once the Ministry retroactively provided the appeal avenues originally denied to the applicant.

Factual background

The case arises from an alleged overpayment of social assistance benefits to Waboshi Nakihimba after he moved from Ontario to Saskatchewan. The Ministry of Social Services determined that he had received assistance benefits from Ontario which he did not disclose when applying for and receiving Saskatchewan social assistance. As a result, the Ministry assessed an overpayment of $1,908.06, of which Mr. Nakihimba accepted $600 but disputed the remaining $1,308.06. He was advised in a February 14, 2023 letter that he was required to repay the overpayment and that he had a right to appeal within the prescribed time frame. Three days later, on February 17, 2023, he notified the Ministry in writing of his intent to appeal the overpayment assessment, specifically disputing the $1,308.06 portion. The Ministry acknowledges that it received this appeal notice. Despite this, no appeal was scheduled at that time.

Over the ensuing months, Mr. Nakihimba attempted to contact Ministry officials to obtain information about the status of his appeal. While he did not file an affidavit detailing dates and frequency of those efforts, the Court accepted that he made multiple attempts. Eventually, on December 29, 2023, a Ministry official wrote to him stating that he was out of time to appeal under the applicable regulations. This denial letter became the immediate trigger for his application for judicial review, as he believed he had been wrongly refused access to the statutory appeal process and deprived of the opportunity to challenge the overpayment decision.

Statutory and policy framework

The legal framework governing this dispute is The Saskatchewan Assistance Act and The Saskatchewan Assistance Regulations, 2014. These instruments establish both the entitlement to social assistance and the mechanisms for review and appeal of decisions affecting eligibility, benefit amounts, and overpayments. Under section 15 of the Act, a person dissatisfied with a decision of a “unit” with respect to assistance may appeal to a Regional Appeal Committee (RAC). Section 17 then provides for a further appeal to the Social Services Appeal Board (SSAB) from decisions of the RAC, with the statute stating that there is no further appeal from the SSAB’s decision. Together with the Regulations, these provisions create a two-tier internal appeal structure for social assistance recipients.

The Regulations detail the types of decisions that can be appealed, the timelines for doing so, and the procedural rights of recipients. Section 35(1) explicitly includes “the assessment of an overpayment” and “a decision respecting the amount of a benefit” as appealable matters, and prescribes a 30-day period to bring an appeal. After an initial reconsideration by the Minister, section 36 requires the Minister to arrange an appeal hearing where the reconsideration does not resolve the matter and the recipient wishes to proceed. Section 37 then governs appeals from the RAC to the SSAB, including a 20-day time limit and obligations on the Minister to transmit the notice of appeal, relevant records, and summaries of issues and evidence.

Crucially, the Regulations also confer procedural fairness protections at both appeal levels. They provide the recipient with the opportunity to present evidence, cross-examine the Ministry’s witnesses, examine Ministry documents, and be represented or assisted by an advocate. The appeal hearings are de novo, meaning the issues are decided afresh, and the panels are not bound by strict rules of evidence, allowing a flexible and accessible forum to address disputes over eligibility, benefit amounts, and overpayments. These statutory and regulatory terms collectively define the “adequate alternative remedy” that the Court assessed in deciding whether judicial review was appropriate.

Procedural history and evidentiary record

After receiving the December 29, 2023 letter stating he was out of time to appeal, Mr. Nakihimba filed an application for judicial review in the Court of King’s Bench on March 25, 2024, serving the Ministry the following day. At that stage, his complaint focused on being denied an appeal and the alleged unfairness of the Ministry’s refusal to process his February 2023 appeal request. His materials attached the December 29 letter, and his argument centred on the unlawfulness of being told he had no right to appeal.

Once served with the judicial review application, the Ministry apparently realized that it had failed to act on his original appeal request. It then took steps to initiate the internal appeals that should have been offered previously. On April 9, 2024, a Ministry manager arranged a RAC hearing date for April 17, 2024. However, when that hearing date arrived, Mr. Nakihimba did not attend and did not contact the Ministry. The RAC proceeded in his absence and upheld the Ministry’s overpayment decision, later notifying him in writing of its decision. In response, on April 30, 2024 he requested a further appeal to the SSAB. A first SSAB date was set for May 28, 2024, later moved to June 11 at the Ministry’s request, which he said did not work for him; it was then rescheduled to June 25, 2024. On that final date he again did not appear and did not contact the Ministry. The SSAB proceeded in his absence, reviewed the material, and dismissed his appeal, finding no error in the overpayment assessment.

Parallel to this administrative history, two applications came before the Court. The Ministry applied to strike or dismiss the judicial review, filing affidavits from its officials to explain the chronology and the appeal steps taken. In response, Mr. Nakihimba brought an application to strike all or part of those affidavits on the basis of alleged irrelevance and prejudice, and he asserted that judicial review should be decided on the record alone. He did not, however, file an affidavit of his own to contradict specific factual assertions such as the chronology of letters, appeal dates, or his non-appearance at hearings. While he challenged certain details—such as an incorrect filing date stated in one affidavit—the Court found those errors immaterial to the issues on the strike application and saw no evidentiary basis to conclude that the Ministry or its counsel were deliberately misleading the Court.

The judge first dismissed the application to strike the affidavits, holding that affidavit evidence is appropriate and often necessary on an application to strike a judicial review, especially to establish background facts and procedural chronology. The Court accepted the affidavits solely for the purpose of the strike motion, with the Ministry confirming that they would not rely on them if the judicial review proceeded on the merits. This left the Court to decide whether the judicial review should be struck in light of the statutory appeal process that had, belatedly, been offered and then completed without the applicant’s participation.

Court’s analysis on alternative remedies and mootness

The Ministry argued that the judicial review should be struck on three bases: as frivolous under Rule 7-9(2)(b) of The King’s Bench Rules, as an abuse of process under Rule 7-9(2)(e), and as moot. In the alternative, it relied on the Court’s inherent jurisdiction to decline judicial review where an adequate alternative remedy has been provided and the applicant refuses to use it. The Court began by identifying the core decision under attack. Initially, the focus was the December 29, 2023 letter stating that he was out of time to appeal. However, after the RAC and SSAB proceedings, and in light of the content of his amended judicial review application, the Court concluded that what he really sought to challenge was the substantive overpayment assessment of $1,308.06, together with the fairness of having been told he could not appeal. That substantive issue was precisely what the internal appeals were designed to address and had, in fact, addressed.

The judge then turned to established administrative law principles on alternative remedies and the requirement to exhaust statutory appeal processes before seeking judicial review. Relying on authorities such as Harelkin, C.B. Powell, Strickland and the recent Supreme Court of Canada decision in Yatar, the Court emphasized that judicial review is discretionary and that courts may refuse to hear such applications where an adequate and effective alternative remedy exists. The judge noted that while Yatar confirms that judicial review remains available for issues not within the scope of a statutory appeal, it does not grant an unconditional right to bypass an available administrative process, especially where the same issues could have been raised and remedied within that scheme.

Applying these principles, the Court found that the statutory appeal mechanism under The Saskatchewan Assistance Act and Regulations provided an adequate alternative remedy for the overpayment dispute. The appeal levels offered significant procedural protections—de novo hearings, the ability to present evidence and witnesses, cross-examine, examine Ministry documents, and be represented—which, in some respects, exceeded what would be available on judicial review, where the Court’s role is generally limited to reviewing the reasonableness and fairness of the administrative decision rather than re-hearing the matter. Although the Ministry had initially failed to follow its own procedures, once that failure was recognized, it arranged the appeals and scheduled multiple hearing dates in consultation with the applicant.

The Court acknowledged that the Ministry’s early inaction and the December 29, 2023 refusal letter were procedurally unfair and not in compliance with the statutory scheme. However, it found that this deficiency was effectively cured when the Ministry provided the very appeals that had been denied. In that context, Mr. Nakihimba’s refusal to attend the RAC and SSAB hearings—despite having sought those very appeals—undermined his claim that he had been denied procedural fairness. He did not dispute that he failed to disclose his Ontario benefits or that the overpayment calculation was mathematically wrong; instead, his primary concern was his dire financial situation. The Court held that these arguments and any allegations of racism, bias or unfairness could and should have been advanced in the statutory appeals, which were expressly equipped to consider them and provide an effective remedy.

Given that an adequate alternative remedy had been made available and that the applicant chose not to pursue it, the Court concluded that this was an appropriate case to exercise its discretion against judicial review. To grant relief in these circumstances would, in the judge’s view, effectively encourage litigants to ignore statutory appeal routes and proceed directly to the courts, contrary to the structure and purpose of the legislative scheme.

Outcome and implications

In the result, the Court dismissed Mr. Nakihimba’s application to strike the Ministry’s affidavits and allowed the Ministry’s application to strike his judicial review. The judicial review proceeding was therefore brought to an end without any determination on the merits of the overpayment assessment by the Court. The statutory appeal decisions of the RAC and the SSAB—both upholding the Ministry’s overpayment assessment—remain in place. The judge declined to consider whether the judicial review should additionally be struck as frivolous or an abuse of process under Rule 7-9, having already decided the matter on the basis of the adequate alternative remedy doctrine.

The Ministry of Social Services emerged as the successful party in the litigation, as its affidavits were accepted for the limited purpose of the strike application and its motion to dismiss the judicial review was granted. However, the Court did not make any monetary orders in this decision: there were no damages awarded, no repayment order quantified by the Court itself, and no costs awarded to either side. The overpayment figure of $1,908.06 (with $1,308.06 in dispute) forms part of the underlying administrative assessment, not a judicial monetary award; accordingly, the total amount of any costs, damages, or monetary relief ordered by the Court in favour of the successful party cannot be determined from this decision because no such monetary order was made.