This is an example of how the BC Liberals terrorize the needy, they have no shame, this court case ruled against Community Living BC...But this loss didn`t stop the BC Liberals, these atrocities and acts of terror are happening all over BC...Only a lucky few who fight tooth and nail win.....Gordon Campbell should be jailed, the BC Liberals needs to be forcefully removed from power, who`s next on the hit list, BC Liberals have assaulted seniors, the blind, charities, disabled, thousands of seriously permanently injured workers get the same treatment from Worksafe BC.
Below is a case of a developmentally disabled child who comes of age only to be abandoned by the province of BC.
It`s toobad judges can`t jail the Government.....That task will be left to the voters, Although I would prefer pitchforks!
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Fahlman, by his guardian ad litem Fiona Gow v. Community Living British Columbia et al,
2007 BCCA 15
Date: 20070109
Docket: CA034239
Between:
Neil Fahlman, An infant and a mentally incompetent person,
By his guardian ad litem, Fiona Gow
Respondent
(Petitioner)
And
Community Living British Columbia and
Her Majesty the Queen in right of the
Province of British Columbia, as represented by
The Ministry of Children and Family Development
Appellants
(Respondents)
Before:
The Honourable Madam Justice Rowles
The Honourable Madam Justice Levine
The Honourable Madam Justice Kirkpatrick
E. E. Vanderburgh
Counsel for the Appellants
F. Kelly
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
15 December 2006
Place and Date of Judgment:
Vancouver, British Columbia
9 January 2007
Written Reasons by:
The Honourable Madam Justice Kirkpatrick
Concurred in by:
The Honourable Madam Justice Rowles
The Honourable Madam Justice Levine
Reasons for Judgment of the Honourable Madam Justice Kirkpatrick:
[1] The appellants (respondents in the Supreme Court), Community Living British Columbia (“CLBC”) and the Ministry of Children and Family Development (the “Ministry”), appeal from the order of the Supreme Court pronounced 12 June 2006 and entered 28 July 2006. The order quashed CLBC’s decision to deny benefits to the respondent (petitioner in the Supreme Court) Neil Fahlman and required CLBC to reconsider Mr. Fahlman’s eligibility for benefits on the basis of the criteria mandated by the Community Living Authority Act, S.B.C. 2004, c. 60 (the “Act”) as it currently reads.
[2] At the conclusion of the appellants’ submissions, we dismissed the appeal with reasons to follow. These are the reasons.
BACKGROUND
[3] Mr. Fahlman, who was nineteen at the time of the Supreme Court proceedings, was adopted by the respondent (petitioner in the Supreme Court) Fiona Gow at the age of five weeks. He has multiple difficulties. Specifically, Mr. Fahlman has been diagnosed with fetal alcohol syndrome, attention deficit disorder and pervasive developmental disorder, which is a type of autism.
[4] CLBC is a Crown corporation established pursuant to the Act. Prior to 1 July 2005, the Ministry and Community Living Services delivered services and support to adults with developmental disabilities living in the community. As of 1 July 2005, CLBC assumed responsibility for delivering such support.
[5] It appears that without adequate support, Mr. Fahlman’s disabilities create serious behavioural issues. At age twelve, Mr. Fahlman qualified to receive services from the Ministry. At age fourteen, he began receiving services from Community Living Services.
[6] By the time Mr. Fahlman reached age fifteen, his emotional volatility, impulsiveness, size, strength and weight rendered Ms. Gow and her husband incapable of caring for him at their home. He was placed in various foster homes. Nonetheless, Ms. Gow has remained active in attempting to stabilize Mr. Fahlman’s circumstances.
[7] At the time of the Supreme Court proceedings, Mr. Fahlman was unemployed but in a stable situation. He was living in a small cabin in Shawnigan Lake and seeing his care provider daily. Mr. Fahlman had been receiving disability benefits from the provincial government since May 2005. In addition, he was receiving funding for seven hours of one-on-one assistance, which enabled him to maintain a modicum of independence and stability.
[8] In June 2005, CLBC commissioned a psychological assessment report to determine Mr. Fahlman’s eligibility for adult services once he turned nineteen on 29 January 2006. CLBC’s eligibility criteria, as stated in its Provisional Policy Manual, are as follows: onset before age eighteen; measured significant limitations in two or more adaptive skill areas; and measured intellectual functioning of approximately 70 or below.
[9] In preparing her psychological assessment report dated 15 June 2005, Dr. Barbara J. Burnside reviewed two reports prepared by Nathan Ory of the Island Mental Health Support Team and she assessed Mr. Fahlman’s cognitive abilities. She framed her mandate as follows:
Neil was referred for assessment of his cognitive abilities in order to decide upon his eligibility for services from the adult team of the Ministry…and…Community Living Services. At the time of this assessment Neil was a client of the children’s team, but his case was reviewed as he approached age 19. ..To determine eligibility for services from the Adult Team, Neil’s IQ had to be determined. [Emphasis added.]
[10] Dr. Burnside concluded:
Although Neil’s IQ scores were not in the range that defines eligibility for services from Community Living Services, his adaptive behaviour was markedly challenged. His scores on the Vineland Adaptive Behavior Scales were in the range of moderate deficit, and included a high level of maladaptive Behavior as well. The Vineland scores justify presenting his case to the Eligibility Screening Committee, regardless of his cognitive scores.
[11] She noted that without “the supports now in place Neil would be extremely vulnerable to his own aggressiveness and impulsivity. He could do significant harm to himself and the community without support”.
[12] On 22 September 2005, the Victoria Eligibility Committee for CLBC Adult Services discussed Mr. Fahlman’s case. The Eligibility Committee concluded that Mr. Fahlman “does not meet the criteria of intellectual functioning of 70 or below”. Accordingly, CLBC advised Ms. Gow that it would cease providing services to Mr. Fahlman after he turned nineteen. On 12 October 2005, Ms. Gow, on Mr. Fahlman’s behalf, requested a review of the decision. By a letter dated 24 October 2005, Dale Chandler, Quality Service Manager for the South Vancouver Island Region of CLBC, affirmed the CLBC’s decision. The letter stated in part:
The eligibility criteria are:
· Onset before age 18
· Measured significant limitations in two or more adaptive skill areas
· Measured intellectual functioning of approximately 70 or below
All of the above criteria must be present for an individual to be eligible for Adult Community Living Services.
In Neil’s situation all the criteria are not present. The report states that his “full Scale IQ score was in the borderline range, better than 8 percent of his age mates.” His Full Scale IQ is listed as 79. We do have some discretion as the intellectual functioning of approximately 70 or below does allow for some variation. In Neil’s case however the variation is so great than an exception is not possible.
I have determined that Neil is not eligible for supports through the Adult Community Living Services of Community Living British Columbia. [Emphasis added.]
[13] Ms. Gow made unsuccessful efforts to locate alternative support for Mr. Fahlman. Thereafter, she requested a review of Mr. Chandler’s decision. Carol Goozh, Vice President of Quality Services at CLBC, conducted a further review of the decision to discontinue services. She affirmed the decision by a letter dated 16 December 2005. The letter read in part as follows:
As outlined in the Community Living Authority Act, CLBC provides support and services to adults with developmental disabilities. The definition of a developmental disability corresponds with the definition in the DSM 4 where “significantly impaired intellectual functioning” means an IQ of 70 or below, with a small margin for error, and “exists concurrently with impaired adaptive functioning.” CLBC policy also specifies that the eligibility criteria for adult service is onset before age 18, measured significant limitations in two or more adaptive skill areas, and measured intellectual functioning of approximately 70 or below.
As Neil has been assessed being in the borderline range of intelligence, with a full scale IQ of 79, he unfortunately does not meet the eligibility criteria for adult CLBC services. [Emphasis added.]
[14] In his affidavit sworn 3 February 2006, Mr. Chandler reconsidered and confirmed Mr. Fahlman’s ineligibility for benefits.
[15] In the Supreme Court, Mr. Fahlman and Ms. Gow sought, inter alia: an order quashing CLBC’s 24 October 2005 decision to deny Mr. Fahlman adult services when he turned nineteen; a declaration that the CLBC’s decision to deny benefits on the basis of an IQ criterion is ultra vires its statutory authority; an order quashing Mr. Chandler’s reconsideration dated 3 February 2006 confirming Mr. Fahlman’s ineligibility; and an order remitting the complaint back to CLBC to reconsider Mr. Fahlman’s eligibility for adult services according to proper criteria.
[16] The learned chambers judge quashed CLBC’s decision and Mr. Chandler’s reconsideration. He also ordered a reconsideration of Mr. Fahlman’s eligibility for benefits on the basis of criteria mandated by the Act as it currently reads.
Statutory Framework
[17] At this point, it is helpful to set out the statutory scheme and the relevant sections of the Act:
"adult" means a person 19 years of age or over;
"authority" means Community Living British Columbia, established under section 2 (1);
…
"child" means a person under 19 years of age;
"community living support" means any of the following:
(a) support and services to children and adults with developmental disabilities;
(b) support and services to families to assist them in caring for a child or an adult with a developmental disability;
…
(d) support and services to other prescribed persons;
"developmental disability" means significantly impaired intellectual functioning that
(a) manifests before the age of 18 years,
(b) exists concurrently with impaired adaptive functioning, and
(c) meets other prescribed criteria;
…
Authority established
2 (1) There is established an authority to be known as Community Living British Columbia to exercise the powers and perform the functions and duties given to it under this Act.
(2) The authority is a corporation consisting of the board.
…
Duties of authority
11 The authority must do all of the following:
(a) provide for the delivery in British Columbia of community living support identified by the minister and of administrative services
(i) using available resources through its own employees, or
(ii) by entering into agreements with the government or other persons to deliver or provide for the delivery of that support;
(b) comply with Provincial standards prescribed by the minister under section 18 (1) (a);
(c) manage the delivery of community living support and administrative services, including, without limitation, developing policies, setting priorities and allocating resources, in accordance with its service plan, budget plan and capital plan;
(d) comply with the minister’s directions in carrying out his or her power under section 18 (1) (b) to monitor and assess the authority, and comply with processes to assess performance, set by the minister under section 18 (1) (c);
(e) prepare, and submit to the minister after the end of its fiscal year, an annual report in accordance with the regulations;
(f) perform other prescribed functions and duties.
Service plan and other plans
12 (1) The authority must submit to the minister for approval, by a date specified by the minister,
(a) a proposed service plan respecting the provision of community living support and administrative services for the period specified by the minister, and
(b) a proposed budget plan and capital plan related to the provision of community living support and administrative services by the authority under the service plan referred to in paragraph (a).
(2) In developing a proposed plan referred to in subsection (1) in relation to the provision of community living support, the authority must endeavour to
(a) offer a range of funding and planning options that promote choice, flexibility and self-determination, for example, individualized funding, independent planning support and the involvement of community resources,
(b) promote choice and innovation in the manner in which services are delivered,
(c) encourage shared responsibility among families, service providers and community resources,
(d) utilize and further develop the capacity of individuals, families and community resources,
(e) assist adults with developmental disabilities to achieve maximum independence and live full lives in their communities,
(f) promote equitable access to community living support, and
(g) coordinate the provision of community living support with services provided by the government and community resources.
(3) The minister may require that the authority modify a proposed plan referred to in subsection (1) in order to obtain the minister’s approval under that subsection.
…
Power to make regulations
29 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) prescribing additional persons for the purposes of paragraph (d) of the definition of “community living support” in section 1;
(b) prescribing additional criteria for the purpose of paragraph (c) of the definition of “developmental disability” in section 1;
(c) prescribing additional duties of the authority under section 11;
(d) respecting a policy under section 8 (3) or any matter relating to conflicts of interest, whether actual or potential, by a director, the chief executive officer, or another officer or employee;
(e) establishing the authority for, or requirements or standards relating to the collection, use, disclosure, custody, control or ownership of, or access to, information by the minister, the authority, service providers or persons who are in receipt of funding under this Act;
(f) respecting a common client information system among the minister, the authority and service providers, or any of them;
(g) defining, for the purposes of this Act and the regulations, words or expressions used but not defined in this Act.
(3) The minister may make regulations as follows:
(a) prescribing the form and content of and process for an annual report under section 11 (e) or a proposed plan under section 12 (1);
(b) for the purposes of section 13, respecting consultation and collaboration and the making of agreements;
(c) establishing a process to determine whether the authority is meeting and continues to meet the Provincial standards set by the minister under section 18 (1) (a);
(d) respecting the transfer of records to or from the authority under section 23.
(4) A regulation made by the Lieutenant Governor in Council or the minister under this Act may provide differently for
(a) different persons or classes of persons, and
(b) different regions of British Columbia.
[18] As can be seen, s. 11 of the Act requires CLBC to provide “community living support”. “Community living support” includes “support and services to children and adults with developmental disabilities” and “support and services to families to assist them in caring for a child or an adult with a developmental disability”. Section 1 defines “developmental disability” as
significantly impaired intellectual functioning that
(a) manifests before the age of 18 years,
(b) exists concurrently with impaired adaptive functioning, and
(c) meets other prescribed criteria;
[19] In contrast, CLBC’s eligibility criteria, as stated in its Provisional Policy Manual, are as follows: onset before age eighteen; measured significant limitations in two or more adaptive skill areas; and measured intellectual functioning of approximately 70 or below.
[20] It is clear that the IQ criterion relied on by CLBC is not expressly in the Act.
[21] By virtue of s. 29, only the Lieutenant Governor in Council can pass regulations prescribing criteria for the definition of “developmental disability”. It is common ground that the Community Living Authority Regulation, B.C. Reg. 231/2005 is silent on an IQ criterion and that no additional criteria has been promulgated by the Lieutenant Governor in Council.
ISSUES
[22] The appellants frame the issues on appeal as follows:
(a) The learned chambers judge erred in his interpretation of the statutory definition of “developmental disability” in the Act by ignoring the requirement in the definition that applicants have “significantly impaired intellectual functioning”.
(b) The learned chambers judge erred in holding that CLBC’s use of an IQ criterion to interpret the phrase “significantly impaired intellectual functioning” in the statutory definition of “developmental disability” in the Act was an unlawful sub-delegation of the power granted to the Lieutenant Governor in Council to make regulations prescribing additional criteria for the definition of “developmental disability”.
(c) The learned chambers judge erred in holding that CLBC’s use of an IQ criterion to interpret the phrase “significantly impaired intellectual functioning” as used in the statutory definition of “developmental disability” in the Act was an unlawful fettering of CLBC’s discretion under the Act.
DISCUSSION
Standard of Review
[23] I preface my consideration of the issues on appeal with the observation that the appellants do not challenge the chambers judge’s conclusion that the proper standard of review in this case is one of correctness.
[24] In my opinion, the chambers judge properly stated at para. 34 of his reasons that “the decision of the Board attracts a correctness standard of review where very little deference will be observed”.
The Meaning of “Significantly Impaired Intellectual Functioning”
[25] I now turn to the appellants’ first ground of appeal. CLBC and the Ministry contend that the learned chambers judge erred in his interpretation of the statutory definition of “developmental disability” in the Act by ignoring the requirement in the definition that applicants have “significantly impaired intellectual functioning”.
[26] The appellants submit that an error is manifest in para. 23 of the chambers judge’s reasons, which reads in part: “…the determination of the CLBC, although meeting the first two statutory criteria, has been denied benefits on the basis of a third criteria [sic] of its own making”. They allege that the chambers judge considered the requisite criteria for “developmental disability” to consist only of the lettered sub-paragraphs in the statutory definition. The appellants argue that the chambers judge’s interpretation of “developmental disability” erroneously omits an unlettered criterion; that is, the existence of “significantly impaired intellectual functioning”. Ultimately, the appellants maintain that Mr. Fahlman does not have “significantly impaired intellectual functioning”; as such, the board properly decided against his eligibility for benefits.
[27] The appellants contend that “significantly impaired intellectual functioning”, which the Act omits to define, should be accorded its technical and scientific meaning, which they claim can be found in “internationally accepted standards and authorities on mental retardation”. One such authority is the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (Washington, DC: American Psychiatric Association, 2000) (“DSM-IV”), which provides diagnostic criteria for mental retardation. The DSM-IV defines “significantly subaverage intellectual functioning” as an IQ of approximately 70 or below, with a measurement error of approximately five points. The appellants cite additional international standards that employ criteria similar to those found in the DSM-IV. They also cite extracts from legislative debates to the effect that the definition of “developmental disability” should correspond with the DSM-IV criteria.
[28] In my respectful view, the chambers judge did err in finding only two statutory criteria for “developmental disability”. Whether an applicant has “significantly impaired intellectual functioning” so as to be eligible for adult CLBC services constitutes another statutory criterion. However, it is apparent from paras. 37 to 48 of the chambers judge’s reasons that he recognized the relevance of the inquiry into “significantly impaired intellectual functioning”.
[29] It remains to consider whether the IQ criterion falls under the rubric of “significantly impaired intellectual functioning”. I am not persuaded that it does. The Act does not support the construction of the term as meaning only “measured intellectual functioning of approximately 70 or below”. The appellants rely on the DSM-IV and other comparable texts to justify their use of the IQ criterion in determining whether the applicant is developmentally disabled. However, it is apposite to note that the texts define “mental retardation”, as opposed to “developmental disability”. Further, the phrase “significantly impaired intellectual functioning” appears in none of the texts: the DSM-IV alludes to “significantly subaverage intellectual functioning”. These factors limit the texts’ usefulness.
[30] In addition, I am not prepared to take judicial notice of the DSM-IV extracts. Judicial notice is properly taken when facts are either “(1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy”: R. v. Find, [2001] 1 S.C.R. 863, 2001 SCC 32 at para. 48, as cited in R. v. Krymowski, [2005] 1 S.C.R. 101, 2005 SCC 7 at para. 22. I do not consider the texts to state unequivocally, the diagnostic criteria for “developmental disability”. The texts in the instant case are distinguishable from the historical texts in Law Society of British Columbia v. Gravelle (2001), 154 B.C.A.C. 25, [2001] 7 W.W.R. 15, which were accepted as authoritative.
[31] The DSM-IV and other texts can properly be characterized as expert evidence, only to be entered through a qualified witness. No such evidence was adduced at the hearing in the Supreme Court. In Nesbitt v. Nesbitt, 2005 BCSC 1311, the judge preferred an expert’s application of DSM-IV criteria over several lay interpretations. In Egli (Committee of) v. Egli (2003), 20 B.C.L.R. (4th) 386, 2003 BCSC 1716, the judge made the following remark at para. 26 with which I agree: “diagnostic criteria from the psychiatric manual DSM IV…contain technical language that requires explanation”.
[32] The appellants’ essential argument on this point is circular. They submit that the court does not need expert evidence because the term “significantly impaired intellectual functioning” has a technical meaning, to be ascertained by reference to authoritative texts such as the DSM-IV. However, at the same time, the appellants urge this Court to take judicial notice of those texts. This line of reasoning does not advance the appellants’ argument and is unpersuasive.
[33] The appellants also rely on Hansard extracts to argue that the legislature intended use of an IQ benchmark to ascertain “significantly impaired intellectual functioning”. However, it would be imprudent to equate the apparent intention of certain individual legislators to the intention of the legislature as a whole. Moreover, in my view, the appellants’ interpretation of the Hansard extracts is unsustainable: the extracts cannot be said to indicate the legislature’s endorsement of the IQ criterion. The IQ figure employed by the DSM-IV is referred to as a “guideline” and not a “hard-and-fast number in all instances”. The respondents submit, and I accept, that the Hansard extracts more reasonably support the interpretation that the legislature decided against imposing an IQ criterion due to community concerns with a rigid guideline and the need for flexibility. The inclusion of an IQ or other rigid criterion was to be the subject of ongoing consultation and review. I note the following passages from British Columbia, Legislative Assembly, Hansard, Vol. 13, No. 5 (26 March 2003) at 5654-55:
J. MacPhail: …Let me ask the minister a question. Community living services for children, whether they be adult children or children under 19. I understand that the services are delivered on the basis of an IQ test and that the dividing line is 70. If you have an IQ of under 70, you get the programs, and if you have an IQ above 70, you don't — whether you're a child or an adult child...
Hon. L. Reid: At this stage in the discussion, it is the international standard under the DSM-IV guideline, if you will. The reality is that the guideline isn't hard and fast at 70. It's supposed to be 70 plus or minus 5. That standard deviation is supposed to be considered in terms of functional assessment. My colleague assures me that process is underway in terms of people finding better ways to approach that.
The member opposite is correct. It is clearly not in people's best interests to have a hard-and-fast number in all instances.
J. MacPhail: That's good news…I met with one parent, for instance. Her child is just an adult now, 19 or 20, and with autism. The child is diagnosed autistic and is able to actually attend a post-secondary education institution, but is every day having to learn how to take the bus, cannot live independently and yet does not qualify for services because his IQ is — if I recall correctly — higher than 75 even. It's not much higher, but it's higher than 75. Because of this arbitrary cut-off point, as the minister describes it, he is unable to maximize his independence. It would be a maximization of independence in a way that would actually save the state money in the long run, because he will be able to get an education and probably be able to get a job as well, but he needs community living support.
…
Hon. G. Hogg: Yes, we've been in many discussions with the interim board of community living B.C. around the definitional issues. Certainly, as the member appropriately points out, there are a number of parents who have concerns around the hard-and-fast guidelines. We have to have some standards by which we start to evaluate and provide services.
At this stage, the best standard is the international standard through the diagnostic and statistical manual — DSM-IV — of the American Psychiatric Association. We have had discussions with them. They're well aware that there is needed to be some flexibility...
They have been having a number of consultations…There have been a number of submissions from parents about that — about the definition, about the flexibility. They are looking at ways they can provide the greatest range of services with the greatest amount of flexibility that they can have.
…
They are still having further consultations and discussions around how they can find an operational definition which is allowed to be based on the DSM-IV standard as well as giving them some flexibility — flexibility that also allows them to control or have a bar that makes some sense in terms of what the access criteria to the services are. [Emphasis added.]
[34] Additionally, the appellants point to s. 5(1)(a)(i)(A) of the Regulation, which requires the authority to provide, until 31 December 2006, for the delivery of “support and services that are the same as community living support” to a child who is diagnosed with Autism Spectrum Disorder. Subsection 5(2) of the Regulation then requires the authority to, before 31 December 2006, determine whether the child has a “developmental disability”. The appellants urge this Court to make the following negative inference. The Regulation explicitly mandates the delivery of support to children with Autism Spectrum Disorder (from which, I note, Mr. Fahlman suffers). This mandate appears distinct from the requirement to provide support for a child with a “developmental disability”. It follows, the appellants suggest, that all persons – children or adults – with Autism Spectrum Disorder were not intended by the legislature to fall under the category of having a “developmental disability”. However, I am not persuaded that such inference is warranted.
[35] I emphasize that the legislature could easily have provided by regulation, under s. 29 of the Act, that only individuals with an IQ of 70 or below are eligible for adult CLBC services. It did not. Therefore, IQ level cannot be determinative of the existence of “significantly impaired intellectual functioning”. In my view, the Act is unambiguous in this respect. In any event, it has been suggested that any ambiguity in a benefit-conferring statute should be resolved in favour of the claimant. In the context of unemployment insurance benefits, the Supreme Court of Canada remarked in Canada (Attorney General) v. Abrahams, [1983] 1 S.C.R. 2, 142 D.L.R. (3d) 1 at para. 16 that since “the overall purpose of the Act is to make benefits available…I would favour a liberal interpretation of the…provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant”. In my view, the Act can fairly be characterized as a benefit-conferring statute that is protective of vulnerable persons in the community. Subsection 12(2) provides insight on the Act’s general purposes: to “assist adults with developmental disabilities to achieve maximum independence and live full lives in their communities” and to “promote equitable access to community living support”.
[36] Ultimately, I do not consider that on any reasonable interpretation it can be said that the term “significantly impaired intellectual functioning” imports the IQ criterion employed by CLBC. Thus, although the learned chambers judge may have failed to acknowledge directly the statutory criterion of “significantly impaired intellectual functioning”, I see no basis for interfering with his conclusion that the IQ threshold constitutes an unlegislated criterion that CLBC improperly applied in determining Mr. Fahlman’s eligibility. I note in passing that in declining Mr. Fahlman’s application, CLBC essentially contravened the Operational Directive 2001/02 (effective 18 April 2001) issued by the Assistant Deputy Minister, which expressly stated that an “IQ of approximately 70 is not to be used as the sole determinant of eligibility”. Although the Provisional Policy Manual dated April 2005 specifying the current eligibility criteria subsequently came into existence, the Operational Directive provides some insight as to how the CLBC was to make eligibility determinations.
Unlawful Sub-delegation
[37] With respect to the second ground of appeal, the appellants contend that the chambers judge erred in holding that CLBC’s use of an IQ criterion to interpret the phrase “significantly impaired intellectual functioning” in the statutory definition of “developmental disability” constituted an unlawful sub-delegation of the power granted to the Lieutenant Governor in Council to make regulations prescribing additional criteria for the definition of “developmental disability”. They submit that the chambers judge’s inattention to “significantly impaired intellectual functioning” in defining “developmental disability” led him to misconstrue CLBC’s reliance on an IQ score as an attempt to introduce unlegislated criteria into the definition. The appellants maintain that the term “significantly impaired intellectual functioning” within the definition of “developmental disability” necessarily includes an IQ criterion.
[38] Given my conclusion that the IQ measure does not fall under the criterion for “significantly impaired intellectual functioning”, it follows that the chambers judge did not err in construing CLBC’s express use of IQ as part of its eligibility criteria as an attempt to deny benefits on the basis of a criterion of its own creation. It is clear from CLBC’s correspondences to Ms. Gow that Mr. Fahlman was denied benefits predominantly on the basis of his IQ score. The chambers judge stated as follows at para. 24 of his reasons:
It has often been stated that where legislation authorizes a delegate to make regulations then the delegate must make them and any delegation of that statutory authority will be ultra vires. In other words, the delegate cannot sub-delegate the law making power without statutory authority to do so. In the case at bar, the Lieutenant Governor has chosen not to promulgate a regulation to create the IQ criterion as a statutory consideration to be applied by the CLBC. Nevertheless, the CLBC appears to have adopted policy which amounts to binding regulation which appears to state that only individuals with an IQ below 70 to 75 will be eligible for the services it provides in accordance with the statutory scheme.
[39] The chambers judge relied on the Supreme Court of Canada decisions of Canada (A.G.) v. Brent, [1956] S.C.R. 318, 114 C.C.C. 296 [Brent] and Brant Dairy Co. v. Ontario (Milk Commission), [1973] S.C.R. 131, 30 D.L.R. (3d) 559 [Brant Dairy]. In Brent, immigration legislation empowered the Governor in Council to make regulations limiting or prohibiting a person’s admission into Canada for reasons enumerated in the statute. The Governor in Council exercised its power by purporting to enact a regulation that delegated to special inquiry officers, the discretion to deny a person admission into Canada. The regulation reflected the specifically legislated reasons and it was drafted in comparable language as the regulation-empowering section. The court stated as follows at para. 4:
Parliament had in contemplation the enactment of such regulations relevant to the named subject matters, or some of them, as in His Excellency-in-Council's own opinion were advisable and not a wide divergence of rules and opinions, ever-changing according to the individual notions of Immigration Officers and Special Inquiry Officers. There is no power in the Governor General-in-Council to delegate his authority to such officers. [Emphasis added.]
[40] The court applied Brent in Brant Dairy, which similarly involved an improper attempt to sub-delegate statutory regulation-making power by converting it into a discretionary power to be exercised by sub-delegates.
[41] Ultimately, I see no basis for interfering with the chambers judge’s conclusion at para. 27 that
the CLBC's action following these two lines of authorities, was ultra vires on the basis that it was an unlawful delegation of the power to make regulations, which under s. 29 of the statute resides with the Cabinet. In accordance with the statutory enactment, the Lieutenant Governor in Council alone has the ability to promulgate criteria to determine who meets the criteria for "developmental disability" as set out in s. 1 of the Act.
[42] Accordingly, I would not accede to this ground of appeal.
Fettering of Discretion
[43] In respect of the third ground of appeal, the appellants contend that the chambers judge erred in holding that CLBC’s use of an IQ criterion to interpret the phrase “significantly impaired intellectual functioning” constituted an unlawful fettering of CLBC’s statutory discretion. The crux of their argument is that the Act does not confer discretion on CLBC to determine eligibility for adult services. The Act sets out specific criteria, the precise application of which is CLBC’s mandate. According to the appellants, a precondition of “fettering of discretion” is the existence of discretion, which they claim CLBC did not enjoy.
[44] The chambers judge concluded as follows at para. 28:
I am of the view that…the CLBC has fettered its own discretion by adopting the IQ policy and then refusing to consider other factors that are relevant. Dr. Burnside made her recommendations in this case knowing full well that the IQ criterion established by the CLBC was not met but considered the seriousness of N.F.'s condition to be appropriate for continued assistance notwithstanding non-conformance with the IQ criteria which I have found to be wrongfully established by the CLBC. Therefore, in this case I find that the CLBC has impermissibly structured its discretion using its own rigid criteria of IQ below the 70 to 75 range in a manner which precluded it from considering the merits of N.F.'s case.
[45] The chambers judge also rejected the submission that the board justifiably adopted the IQ policy as part of its duty under s. 11 of the Act to “manage the delivery of community living support…services”. The board had claimed that this duty included enunciating guidelines to interpret the undefined term “significantly impaired intellectual functioning”.
[46] As Professor David J. Mullan explains in his text at 115-16, fettering of discretion as a ground of review falls under the category of abuse of discretion. The essential allegation is that the decision-maker failed to exercise its discretionary powers genuinely in an individual case; rather, it rendered a decision on the basis of pre-existing policy. Judicial tolerance for the adoption of guidelines has not extended to the establishment of formal rules to govern in particular cases. A specific statutory power is a prerequisite to promulgating such rules.
[47] Further, Professor Mullan observes how courts have admonished against informal policies and guidelines becoming invariable rules applied automatically in every case. Individual matters warrant individual attention. Accordingly, a statutory authority’s discretion should not be so fettered as to preclude individualized consideration of particular cases.
[48] In Ainsley Financial Corporation v. Ontario Securities Commission (1995), 21 O.R. (3d) 104, 77 O.A.C. 155 (C.A.), the court declared ultra vires, a policy statement of the Commission. The court found that the policy statement did not merely contain informal guidelines that facilitated the Commission’s regulatory functions. Rather, the Commission had instituted rules that appeared mandatory due to the threat of sanctions. The court at para. 14, citing Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 168 N.R. 321 at para. 79, held that the Commission had no statutory authority to issue de facto laws disguised as guidelines.
[49] Moreover, the respondents cite Maple Lodge Farms v. Canada, [1981] 1 F.C. 500, 42 N.R. 312 at para. 29 (F.C.A.), aff’d [1982] 2 S.C.R. 2, 44 N.R. 354 for the proposition that
[t]he Minister may validly and properly indicate the kind of considerations by which he will be guided as a general rule in the exercise of his discretion…but he cannot fetter his discretion by treating the guidelines as binding upon him and excluding other valid or relevant reasons for the exercise of his discretion…
[50] In the case at bar, I see no sound basis for interfering with the chambers judge’s conclusion that CLBC fettered its discretion. First, I prefer the respondents’ characterization of CLBC’s mandate. In my view, the Act clearly grants to CLBC discretion in determining eligibility for adult services. As is evident from para. 37 of the chambers judge’s reasons, CLBC recognized in Supreme Court its “wide ranging discretion with respect to the provision of the benefits it is authorized to administer”. Whether an applicant has “significantly impaired intellectual functioning” so as to have a “developmental disability” and therefore warrant “community living support” appears to be a discretionary decision. Application of the statutory criteria does not necessarily yield an incontrovertible result. CLBC’s duty to satisfy itself as to the presence of a qualifying impairment is to be exercised on the facts of each case.
[51] Second, in adopting a policy interpreting “significantly impaired intellectual functioning” as requiring a below-70 IQ, CLBC can fairly be said to have fettered its discretion. The respondents cite the Supreme Court decision of Lewis v. B.C. (Superintendent of Motor Vehicles) (1979), 18 B.C.L.R. 305, 108 D.L.R. (3d) 525 (S.C.) [Lewis], which the Federal Court referred to in Apotex Inc. v. Canada (Attorney General) (1993), 59 F.T.R. 85 at para. 78 (T.D.).
[52] In Lewis, motor vehicle legislated provided that “upon being satisfied as to the fitness and ability of the applicant to drive and operate motor-vehicles of the relevant category", the superintendent shall issue a licence. The judge noted at paras. 3 and 10 that
the superintendent cannot, of course, lay down specific requirements and say that those who meet these criteria will receive a licence and those who fail to meet any one of them will be refused. That would be to enact regulations, which the superintendent has not the authority to do, and to abdicate the judgmental role which is given to him by the Act.
…
I am satisfied that in this case the responsible officer refused the licence solely by application of an inflexible rule and without regard to the actual fitness or ability of the applicant to drive a vehicle of the type in question. The limitation which the officer placed on the scope of appeal makes this very plain.
[53] The judge at para. 10 made the following remarks with which I agree:
Those performing the superintendent's duties quite understandably desire to avoid consideration of the merits of individual cases and the controversy which arises when applicants are turned down on the basis of judgment. They prefer the strict application of rules to which reference can be made. Had the legislature desired that licences be granted or refused on the basis of compliance with particular standards, it would have authorized such standards to be established by regulation. Instead, it has determined that the decision should be based on "fitness" and "ability", and made the superintendent and his delegates judges of these qualities in individual applicants.
[54] This Court considered a similar question in Lloyd v. British Columbia (Superintendent of Motor Vehicles), [1971] 3 W.W.R. 619, 20 D.L.R. (3d) 181 (B.C.C.A.). In that case, the court found that the superintendent fettered his discretion by adopting a blanket policy of automatically suspending the licence of any person convicted of impaired driving. This policy prevented the superintendent from undertaking the statutorily-mandated inquiry into the facts, circumstances and merits of each case.
[55] In the instant case, had the legislature intended IQ to be partially determinative of “significantly impaired intellectual functioning” and, therefore, “developmental disability”, it could have invoked s. 29 of the Act. Namely, the Lieutenant Governor in Council could have specifically prescribed the IQ threshold as an additional criterion “for the purpose of paragraph (c) of the definition of ‘developmental disability’ in section 1”. Instead, the legislature seemed reticent to impose rigid rules. Until the legislature decides to impose such rules, the Act as it currently reads confers discretion on CLBC to determine whether an applicant has “significantly impaired intellectual functioning” so as to be developmentally disabled and thus eligible for “community living support”. In exercising its discretion, CLBC is to consider fully the facts, circumstances and merits of each application. The IQ policy precludes such consideration and application thereof gives rise to a fettering of discretion.
[56] Accordingly, I would not accede to this ground of appeal.
CONCLUSION
[57] For the foregoing reasons, I would dismiss the appeal. In so doing, I dismiss the appellants’ application to adduce fresh evidence. In applying the test articulated in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775-76, 50 C.C.C. (2d) 193, I emphasize that the proposed evidence was entirely within the appellants’ capacity to obtain prior to the hearing of the petition. The court in Palmer established that evidence should generally not be admitted if, by due diligence, it could have been adduced at trial. This general principle is strictly applied in civil cases: See: Spoor v. Nicholls (2001), 90 B.C.L.R. (3d) 88, 2001 BCCA 426 at para. 16.
[58] Ultimately, I uphold the chambers judge’s order quashing CLBC’s decision and the reconsideration. I also uphold his order for reconsideration of Mr. Fahlman’s eligibility for benefits on the basis of the criteria mandated by the Act as it currently reads.
“The Honourable Madam Justice Kirkpatrick”
I agree:
“The Honourable Madam Justice Rowles”
I agree:
“The Honourable Madam Justice Levine”
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