Huron Perth Children’s Aid Society v. Ontario, 2012 ONSC 5388
CITATION: Huron Perth Children’s Aid Society v. Ontario, 2012 ONSC 5388
DIVISIONAL COURT FILE NO.: 613/11
DATE: 2012-10-02
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
HURON-PERTH CHILDREN’S AID SOCIETY, CHATHAM-KENT CHILDREN’S SERVICES, THE CHILDREN’S AID SOCIETY OF THE DISTRICT OF NIPISSING AND PARRY SOUND, FAMILY AND CHILDREN’S SERVICES OF ST. THOMAS AND ELGIN, DURHAM CHILDREN’S AID SOCIETY, CHILDREN’S AID SOCIETY OF THE CITY OF KINGSTON AND COUNTY OF FRONTENAC, THE CHILDREN’S AID SOCIETY OF OXFORD COUNTY, THE CHILDREN’S AID SOCIETY HALDIMAND AND NORFOLK, THE CHILDREN’S AID SOCIETY OF BRANT, SERVICES À L’ENFANCE ET À FAMILLE DU TIMISKAMING CHILD AND FAMILY SERVICES, AND CHILD AND FAMILY SERVICES OF TIMMINS AND DISTRICT
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTRY OF CHILDREN AND YOUTH SERVICES, THE MINISTER OF CHILDREN AND YOUTH SERVICES AND HER DELEGATES
Respondents
John Downing and Patrick Ley, for the Applicants
William Manuel and Judie Im, for the Respondents
HEARD at Toronto: April 25 and 26, 2012
the court
Overview
[1] This is an application for judicial review brought by the Applicants, 11 children’s aid societies (“CASs”), against the Ministry of Child and Youth Services (the “Ministry”) and the Minister of Children and Youth Services (the “Minister”) and her delegates challenging the decisions made after review of the determinations of the government funding of each of the Applicants for the 2009/2010 fiscal year. According to the Applicant CASs, the Minister’s delegates failed to take into account the failure of the Minister to follow the legislatively-mandated process in fixing their funding. They also allege that the Minister’s delegates exhibited an apprehension of bias and fettered the Minister’s discretion in the conduct of the reviews, and that their reasons were inadequate. The Applicant CASs are asking that the decisions be set aside and that the matters be remitted for fresh consideration by the Minister, with directions from this Court.
[2] For the reasons that follow, we would dismiss the application for judicial review. In reality, what this application seeks to challenge is a legislative decision in respect of the appropriation of public funds for child welfare services and a policy decision of the Minister regarding the basis on which those funds were allocated among the 53 CASs in the Province for the subject year. The government has the right to allocate public funds as it sees fit and the exercise of that right cannot be the subject of judicial review in the absence of bad faith or for an improper purpose, neither of which is alleged here.
Background
The Provision of Child Welfare Services in Ontario
[3] Pursuant to the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “CFSA”) the Minister may designate an approved agency as a children’s aid society to carry out certain legislatively mandated child welfare services. There are 53 such approved agencies, located within nine geographical regions in Ontario. The Applicants comprise 11 of these 53 agencies.
[4] Each CAS is a non-profit independent agency that receives funding from the government to provide child protection programs and services. These programs and services are mandatory; each CAS is required to provide child welfare services to all identifiable eligible children in accordance with established service levels, regardless of sufficiency of funding, within a particular territory.
[5] The Ministry operates a regional office in each of the nine geographical regions, which is managed by a regional director.
The Funding Provisions of the CFSA
[6] Section 19(2) of the CFSA provides that the Minister “shall pay to every society out of legislative appropriations an amount determined in accordance with the regulations.” How and when the determined amounts are paid to a society is within the sole discretion of the Minister, as is more fully discussed below.
[7] Section 14 of the Child and Family Services Act General Regulation, R.R.O. 1990, Reg. 70 (the “Regulation”) states that each children’s aid society shall, before a date that is fixed by the Minister in each fiscal year, provide a service and budget estimate for that year. Under the Regulation, a “service and budget estimate” means an agency’s “estimated services and its estimated costs for those services.”
[8] Under section 14(3) of the Regulation, the Minister may approve or vary and approve a particular agency’s service and budget estimate. Pursuant to section 14(8), within 30 days after receiving such approval the agency may request either or both of a meeting with the Minister and consideration by the Minister of written submissions from the agency (a “Section 14 Review”). If such a request is made, a date for any meeting shall be fixed and written submissions must, unless otherwise agreed by the Minister, be received within 30 days.
[9] Section 14(10) of the Regulation provides that after considering the presentation made at the meeting and/or the written submissions, the Minister may vary and approve a revised service and budget estimate or may confirm the service and budget estimate that was previously approved. The decision of the Minister in this regard is final.
Legislative Appropriations for Child Welfare Services
[10] The Ontario government provides services to the public by funding various ministries which then provide or fund services within their respective areas of responsibility. Overall program direction, spending priorities and funding allocations are set by the government and approved by the Legislature through the annual budget process.
[11] The broad government strategic direction is set by Cabinet. The funding allocations for specific ministries are approved by Treasury Board/Management Board of Cabinet (“TB/MBC” or "Treasury Board.") This approval is done as part of a comprehensive provincial business planning process. To this end, each ministry submits a proposed business plan to TB/MBC, which reviews and approves each business plan. Each ministry receives funding in accordance with its approved plan, and can then sub-allocate those funds. Ministries must seek further approval from TB/MBC if they propose to spend money for purposes other than that for which the funding was intended or if they are requesting additional funding to offset pressures in certain program areas.
[12] The Ministry is responsible for the administration of child welfare services in Ontario. The fiscal year for both the Ontario government and the CASs is April 1 of one calendar year to March 31. The Ministry submits its business plan to Treasury Board for any given fiscal year in the fall or the third quarter of the prior fiscal year.
[13] For any fiscal year, the amount of the legislative appropriation allocated to the Ministry for child welfare services is established. Once the Ministry’s business plan for administering these services is approved by TB/MBC, the provincial budget is released and estimates are tabled in the Ontario Legislature for approval. The Ministry is then in a position to begin the process of allocating that funding amongst the 53 approved child welfare agencies in the Province.
The Funding Process Prior to 2009/2010
[14] The Ministry is not in a position to decide how to allocate the funding it receives for child welfare in any given fiscal year until it knows its funding envelope for that fiscal year and has analyzed and reconciled the financial statements of each CAS for the prior fiscal year. This means that CASs are well into a fiscal year before the Ministry requests their service and budget estimates for that year, and often those estimates are not approved before the fall of that year.
[15] In response to this uncertainty, the Ministry implemented two changes. In 2005/2006, after extensive consultation with the child welfare sector, the Ministry implemented a new funding model for child welfare. This new funding model was to be driven by volume sensitivity; that is, each type of service category was assigned a unit cost based on a particular CAS’s actual cost for providing this service. CASs received base funding that was very much dependent on the volume of services they perform.
[16] The Ministry also began issuing “planning allocations” in advance of the approved budget. These allocations may be based on the Ministry’s forecasts of service volumes and available funding. Planning allocations based on a three-year business cycle were provided in 2006/2007 (for 2006/2007, 2007/2008 and 2008/2009).
[17] In this period, each CAS was then required to provide a service and budget estimate. Typically they were not requested to do so until July or August of the fiscal year in question. After a turnaround of between one and two months, CASs would then receive notices of their funding allocation.
[18] In addition, during this period, the approved service and budget estimate of any particular CAS might be adjusted during a fiscal year in light of actual service volumes. Additional funding might also have been allocated to CASs through a year-end mitigation process, or pursuant to a Section 14 Review (as defined below). Funding for a CAS could also be adjusted according to a final reconciliation at year-end out of additional funds that were available from the approved legislative appropriations for the fiscal year in question. The Minister might also secure additional funding for child protection services through an in-year submission to TB/MBC.
[19] Finally, prior to 2009/2010, if a CAS had actual expenditures that exceeded its funding allocation, the Ministry responded by making up the shortfall, if necessary, by seeking additional in-year funding from TB/MBC.
The Funding Process in 2009/2010
[20] For 2009/2010, the Ministry received a legislative appropriation for child welfare programs of $1,418.9 million. This was 2.6% more than the approved estimates for the previous year. It was this amount that the Ministry had to allocate amongst the 53 CASs.
[21] For this fiscal year the Ministry instituted some changes to the 2005/2006 funding model. These changes included: capping allocations for administrative and infrastructure expenses at 10% of overall funding; eliminating any allocation for minor capital expenses (because of the availability of an alternative funding source); and providing no adjustments for inflation.
[22] On March 25 and 26, 2009, all 53 CASs, including the Applicants, received a written communication from their respective Regional Directors requesting a forecast of service volumes for the forthcoming 2009/2010 fiscal year. The CASs, including the Applicants, provided the requested service volume forecasts during the first week of April 2009. According to the Ministry, it required this information so that staff could calculate planning allocations for 2009/2010 based on each society’s anticipated service volume. According to the Applicants, this was the first time that such a request had ever been made of them.
[23] On June 24, 2009, the Minister convened a web conference with all of the CASs in Ontario. During that web conference the Minister advised that, given the dramatic drop in government revenues, there would be no further requests from the Ministry to TB/MBC at year-end in 2009/2010. As put by the Minister, the amount that the child welfare sector had been allocated was “the final amount of money” that would be allocated. She said, “There might be some movement within the sector but … there will not be any year end more money into the sector. That is the reality that we’re dealing with. Our revenues of the government are dropping pretty dramatically…” The Minister advised the CASs that they would each be given their funding allocations in two days and that in some cases those allocations would be lower than the previous year’s funding.
[24] On June 26, 2009, meetings were held in each of the nine regions, at which time a PowerPoint presentation was made providing the CASs with further details on the key changes to the funding model and how those changes affected their allocations. At the conclusion of the meetings, in letters dated June 25 or 26, 2009, the CASs were each provided with their allocations for 2009/2010. These allocations were calculated using the funding model applied to the service forecasts that had been provided earlier. The Ministry again advised the CASs that these allocations comprised all of the available funding for 2009/2010. Therefore, each CAS was requested to return a service and budget estimate within its respective allocation.
[25] On June 29, 2009, the Ministry sent the CASs its request for their service and budget estimates for that fiscal year. They were told to complete their submission packages by July 20, 2009. That date was later extended to July 27, 2009. The 11 Applicants completed their submissions by the deadline. All submitted service and budget estimates that were in excess of their respective initial allocations as set out in the letters of June 25 or 26.
[26] In July 2009, before the service and budget estimates were submitted, on two occasions senior Ministry employees made further statements to CAS representatives that all child welfare funds had been allocated and that no more funds would be available.
[27] On August 5, 2009, the Ministry advised each of the Applicants by letter of the details of their approved service and budget estimates for 2009/2010. In all cases, the quantum of funding announced in the August 5 letters was very close to, or the same as, the funding allocation figures provided in the June 25 or 26 letters and was less than the requested amount. Some of the Applicants received more than their initial funding allocation; some received less and some received the same amount as their initial funding allocation.
The Section 14 Reviews
[28] Between August 5 and September 5, 2009, 37 CASs made written requests for a Section 14 Review of their approved service and budget estimates. Each received a letter from its respective Regional Director advising that the powers and duties of the Minister under the CFSA to conduct each of the Section 14 Reviews had been delegated to the Regional Directors. The Ministry provided each Regional Director with guidelines that it had developed for conducting these Reviews. In this Judgment, the term “Section 14 Reviews” refers collectively to the Section 14 Reviews requested by each of the Applicants except where the context expressly requires otherwise.
[29] Between September 25 and October 19, 2009, each Applicant prepared and served written submissions pursuant to s. 14(8) of the Regulation that described in detail its actual and estimated expenditures (as fiscal 2009/2010 was now half over), as well as the reasons why its expenditures exceeded its funding allocation.
[30] On September 30, 2009, before most of the Applicants had served their written submissions, the Regional Director of the Southwest Region, Richard Steckenreiter (“Steckenreiter”), sent a letter to four of the Applicants stating that all child welfare funding had been allocated, demanding that those Applicants balance their budgets, and expressing his view that the Applicants were not addressing their “deficits” as aggressively as necessary. In the letter, he suggested a meeting be held to discuss their efforts to address their respective deficits. Steckenreiter was aware that these Applicants had requested a Section 14 Review and that he would be the decision-maker in respect of those Reviews.
[31] In October 2009, a number of Applicants met with Steckenreiter as suggested. At this point, the Section 14 Reviews were pending. In these meetings and in written correspondence, he reiterated his view that he was not in a position to consider or approve funds in excess of the service and budget estimates approved on August 5, 2009.
[32] Given these statements, a number of the Applicants wrote to Steckenreiter expressing concern that he was biased and had pre-determined the outcome of their Section 14 Reviews. The Applicants requested that another decision-maker be appointed. Their request was denied. The Applicants were assured that Steckenreiter would approach the review process with an open mind and that the statements that he had made were only about the limits of his authority and not about any predetermination of the Section 14 Reviews.
[33] On October 22, 2009, the Minister advised all CASs in Ontario that there would be no mitigation of CAS budget “shortfalls” in the 2009/2010 fiscal year.
[34] Between October 23 and November 13, 2009, a series of meetings was held pursuant to section 14(8) of the Regulation, during which each Applicant presented oral submissions and answered questions regarding its written submissions. These review panels were chaired by the Regional Directors. Prior to these meetings, an analysis of all the written submissions had been undertaken by regional review teams comprised of business and program staff in each of the regional offices. A Submissions Review Template, Detailed Submissions Analysis Template and Section 14 Review Summary Sheet Template were produced for each CAS in respect of which a Section 14 Review was conducted.
[35] Subsequent to the Section 14 Review meetings, all the Regional Directors met on November 23 and 24, 2009 and teleconferenced on November 30, 2009. The purpose of these meetings was to ensure a consistent approach to all the issues that had been raised by the 37 CASs in the Section 14 Reviews. Prior to these meetings, a chart entitled “2009-2010 Section 14 Review – Summary of Issues Presented” was prepared, detailing all the issues raised by each of the 37 CASs in their written submissions and/or in their panel meeting presentations.
[36] The Regional Directors, as a result of these meetings, agreed on a set of criteria to be applied in making their Section 14 Review decisions:
(a) Did the Ministry err in the application of the funding model?
(b) Was the funding model applied fairly and consistently?
(c) Ministry’s commitment to fund up to the funding model eligibility.
(d) Are there exceptional circumstances? (Criteria were established for what constituted an exceptional circumstance.)
[37] On December 2, 2009, at a meeting in Toronto, the Regional Directors made their decisions.
[38] The Applicants received letters advising them of the results of the reviews between February 12 and 17, 2010. Eight CASs, including two of the Applicants, had their service and budget estimates increased. A request was made to TB/MBC for a further legislative appropriation for fiscal 2009/2010, including $836,529 to fund these eight increases. That request was approved. The remaining nine Applicants were denied any increase in their service and budget estimates.
[39] Both before and after the review results were delivered, the Minister and her staff made statements that the Section 14 Reviews had been confined to a determination of whether any mathematical errors were made in applying the funding formula and whether the formula had been applied fairly and consistently.
[40] During the course of the Section 14 Reviews, the Regional Directors identified certain issues that they felt needed to be addressed, but that were not part of the Section 14 Review process. Many issues were placed on a “parking lot” list for further examination and discussion. Some were further identified as exceptional circumstances.
[41] After these issues were examined and discussed, the Ministry made an in-year submission to TB/MBC for fiscal 2009/2010. As a result of that submission, the Ministry received an additional $23.9 million in legislative appropriations for child welfare. This amount included the $836,529 that arose from the Section 14 Review decisions. Due to this additional funding, in February 2010, seven of the Applicant CASs received one-time funding from the Ministry in amounts ranging from $16,480 to $793,064.
[42] Since the Section 14 Review decisions were released, other changes have occurred affecting the financial status and accumulated debt of the Applicants. The Ministry was able to find funds in 2009/2010 to cover Haldimand CAS’s participation in a coroner’s inquest and to mitigate the cash flow shortages of Nipissing CAS and Timiskaming CAS. In October 2010 the Minister took over the operation of Huron-Perth CAS.
[43] At the end of the fiscal year 2009/2010, as a result of the year-end reconciliations and analysis, eight of the Applicants had their service and volume eligibility funding reduced because the service volume forecasts provided in their service and budget estimates exceeded the actual volume of services provided in 2009/2010.
[44] After the fiscal year 2009/2010, four of the Applicants were identified as potential candidates for amalgamation. To support this amalgamation, in March 2011, the Ministry provided these Applicants with one-time funding to retire their accumulated debt, including the debt that is the subject of this Application. The remaining Applicants are still carrying debt arising from the 2009/2010 budgeting process.
The Issues Raised in this Application
[45] The Applicants seek judicial review of the results of the Section 14 Reviews requested by each of the Applicants. They argue that these decisions should be quashed for the five reasons addressed below.
Allegations of an Alleged Breach of the Statutory Process for Funding, Fettering of the Minister’s Discretion, and a Reasonable Apprehension of Bias
[46] We propose to address the following three issues raised by the Applicants collectively as they all relate to the Ministry’s process for determination of the CASs’ funding allocations and represent the Applicant’s principal arguments in this proceeding.
[47] The Applicants argue that the Minister breached the mandatory provisions of the CFSA in determining their funding, as she failed to comply with the requirement in s. 19(2) to pay an amount determined in accordance with the regulations. More specifically, they argue that the Minister erred in fixing funding amounts in June 2009 before the request was made to the CASs to file a service and budget estimate. This is said to be contrary to s. 14(1) of the Regulation.
[48] The Applicants also argue that the Minister fettered her discretion in the s. 14 Review process because of the mechanical application of the funding formula. As well, the Applicants submit that there was a reasonable apprehension of bias on the part of the Regional Directors because they were constrained by the budget allocations.
[49] In our view, these three arguments cannot succeed, principally because the Minister’s funding determinations and approval of service and budget estimates under section 14(3) of the Regulation are not subject to judicial review by this Court, absent bad faith or improper purpose. This issue is addressed in the following section before we consider the three principal arguments of the Applicants.
The Extent to Which a Determination of the Minister under Section 14(3) is Subject to Judicial Review
[50] In their motion materials, the Applicants limited their application for judicial review to a review of the results of the Section 14 Reviews of the Minister’s delegates, the Regional Directors, conducted under section 14(10) of the Regulation. Although they argue that the Minister breached the CFSA and Regulation, they did not directly challenge the Minister’s allocation of financial distributions under section 14(3) of the Regulation in their application materials. However, as discussed further below, the Applicants’ submissions regarding the Section 14 Reviews assume the authority of this Court to review the Minister’s allocation decisions under section 14(3).
[51] Accordingly, regardless of whether the Applicants also intended to challenge the Minister’s decisions under section 14(3) as counsel suggested at the hearing, which would affect all the CASs and not just the Applicants, the Court must address as a preliminary question, the issue of the authority of this Court to judicially review the Minister’s allocation decisions. The determination of this issue is fundamental to the conclusions reached in these reasons. Therefore, in this section, we propose to set out our analysis and conclusions regarding the authority of this Court to judicially review the Minister’s decisions resulting from the application of the funding model to the particular circumstances of each CAS before considering the Applicants’ three principal arguments.
[52] The starting point for this analysis is recognition of the principle that funding of the CASs falls squarely within the policy-making function of the Government of Ontario regarding the allocation of limited financial resources. Absent bad faith or an improper purpose, decisions of this nature are not subject to judicial review. This principle was confirmed by Callaghan C.J.O.C. in Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation), [1991] O.J. No. 439 (Div. Ct.) at para. 48, referring to an earlier decision of Grange J. in Re Metropolitan General Hospital and Ontario (Minister of Health) (1979), 25 O.R. (2d) 699 (H.C.J.) at p. 704, as follows:
Like Grange J., I am forced to the conclusion that it is not for any court to oversee a Minister of the Crown in policy decisions or in the exercise of his or her discretion in the expenditure of public funds entrusted to his or her department by the legislature. As Grange J. said, "The propriety of the payment or the withholding of payment may in some circumstances be inquired into; the wisdom of the decision can never be the subject of judicial review. It is a political and not a judicial problem" (at p. 705 O.R.).
[53] The starting point for the analysis in this proceeding is section 19(2) of the CFSA. Section 19(2) provides for payment to the CASs “out of legislative appropriations” of an amount determined in accordance with the regulations. The legislative appropriations process in respect of the Ministry includes an amount to be directed to child welfare services. The appropriations process is not subject to review by this Court. It is a “core policy” function of government as described by McLachlin C.J.C. in R. v. Imperial Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 90.
[54] Given the legislative appropriation for child welfare services, the Ministry must necessarily allocate a fixed appropriation among the CASs. This function is contemplated by the statutory power granted to the Minister in section 19(4) of the CFSA, which provides that a CAS’s estimated expenditures shall be determined and shall be approved by the Minister in accordance with the regulations. This function of allocating the legislative appropriation is also a core policy function of government.
[55] We accept that the exercise of the Minister’s statutory discretion under section 19(4) of the CFSA and section 14 of the Regulation is not totally unconstrained, insofar as it may be subject to judicial review on the grounds of an abuse of the discretion, i.e., because of bad faith or an improper purpose. However, where the Minister is exercising an essentially legislative rather than a judicial function, the case law does not support the existence of a more expansive judicial supervisory function.
[56] At the heart of this proceeding is the Ministry’s reliance on the funding model applied in the exercise of the Minister’s statutory discretion. As a factual matter, most of the Applicants consider that the funding model understates their costs of delivery of the mandated child welfare services in their territory. In addition, two CASs were adversely impacted by the infrastructure cap and a third by the elimination of any allocation for minor capital expenditures, which they consider were imposed arbitrarily.
[57] We are of the opinion that the Ministry’s use of the funding model in the circumstances of this proceeding did not contravene either section 19 of the CFSA or section 14 of the Regulation. The funding model is a tool by which the Ministry more systematically takes into account the various factors that, in its opinion, should bear on the funding allocated to individual CASs in a time of constrained resources. The Applicants’ real objection is not the use of a funding model but the cost factors in that model insofar as these cost factors do not, in their opinion, reflect their cost of delivery of the mandated services. Absent evidence that such factors were arrived at in bad faith or for an improper purpose, however, the Court has no authority to review the adoption and application of the funding model.
[58] In this case, there is no allegation that the Minister exercised her statutory discretion in bad faith or for an improper purpose. Accordingly, the Ministry decisions resulting from the application of the funding model to the particular circumstances of each CAS are not subject to judicial review.
Analysis and Conclusions Regarding the Applicants’ Three Principal Arguments
[59] As mentioned, the Applicants seek judicial review of the decisions of the Minister’s delegates rendered under section 14(10) of the Regulation not to vary the Ministry’s funding allocations. The essence of the Applicants’ argument is that the Minister’s delegates limited their review of the funding allocations to a consideration of whether or not the funding model had been properly applied and accepted only mathematical errors in such application. The Applicants allege that such approach was contrary to the CFSA and the Regulation, entailed the fettering of the Minster’s discretion and demonstrated an apprehension of bias.
[60] Given the foregoing analysis of the Minister’s statutory discretion under the CFSA and the Regulation in the conduct of a core governmental policy function, these arguments must fail. We have the following specific comments regarding each of these arguments.
Failure to Consider the Alleged Non-Compliance with the Mandatory Provisions of the Act and the Regulation
[61] The Applicants’ first argument is that the Section 14 Review decisions should be set aside because the Respondents breached the mandatory provisions of the CFSA and the Regulation. They argue that this failure to comply with the statutory provisions constituted a jurisdictional error.
[62] The Applicants assert that the process followed by the Ministry to determine the Applicants’ funding in 2009/2010 was in breach of s. 19 of the CFSA and s. 14 of the Regulation. That process required that before deciding on the CASs' funding distributions, the Ministry had to obtain service and budget estimates from the CASs. The Applicants submit that, instead of doing so, the Ministry fixed the funding allocation in June 2009 and then requested the service and budget estimates. Those estimates were not submitted until July 27, 2009 and the decisions concerning the actual amount of funding approved for each CAS were announced very shortly thereafter, on August 5, 2009. According to the Applicants, this timing demonstrates that the Ministry made its decisions about how much funding each CAS would receive before it requested the service and budget estimates. In doing so, the decision-maker failed to comply with the statutorily mandated process, thereby committing a jurisdictional error.
[63] There is a preliminary procedural difficulty with this argument. As mentioned, the Applicants do not seek judicial review of the Ministry’s allocation decisions under section 14(3) of the Regulation, which are the decisions which they allege contravened the CFSA and the Regulation. Instead, they challenge the Section 14 Review decisions. It is unclear on what basis the Applicants consider that the Minister’s delegates could have taken this issue into consideration in conducting the Section 14 Reviews, except to the extent that the Applicants argue that they should have conducted an entirely new allocation exercise on the basis proposed by the Applicants.
[64] This is, however, inconsistent with the language of sections 14(8) and (10) of the Regulation, which do not contemplate a de novo exercise, merely consideration of oral or written submissions by the requesting CAS. In addition, and more generally, the argument cannot succeed given the conclusions set out above that the Minister did not contravene the provisions of the CFSA or the Regulation in applying the Ministry funding model to the determination of the funding allocations in August 2009 and that the Minister’s determination of the funding allocations was not subject to judicial review in the particular circumstances of this proceeding.
[65] In particular, because the Minister had full discretion in fixing the funding allocations and approving service and budget estimates under section 14(3), the Minister also had full discretion in respect of the criteria to be applied in any Section 14 Review conducted at the request of the Applicants. The Minister’s discretion to allocate funds, and any review of the exercise of that discretion by the Minister’s delegates, is not subject to judicial review unless the Minister’s actions, or the actions of the Minister’s delegates, constituted bad faith or were directed toward an improper purpose.
[66] In reaching this conclusion we have rejected the Applicants’ two principal, related arguments described below for the following reasons.
[67] First, as described above, the Applicants argue that the Minister failed to pay to the CASs “an amount determined in accordance with the Regulations” and thereby contravened the procedure contemplated in section 14 of the Regulation. They say that this is akin to a jurisdictional error in the form of a failure to consider matters that a statute requires be taken into account or in the form of the consideration of matters that are irrelevant or proscribed in respect of the applicable statutory provision.
[68] We do not accept either the factual characterization of the Ministry’s actions or the legal analysis underlying the Applicants’ position.
[69] As a factual matter, the Ministry did not fix its funding allocations until after receipt and review of the service and budget estimates of the CASs. The Ministry did indicate to the CASs that there would be no open-ended resort to the Treasury Board to cover deficits of individual CASs and that its review of the service and budget estimates would be based on the funding model for 2009. This direction to the CASs was entirely consistent with the policy-making function of the Ministry. The allocations were provided to the CASs in June 2009 as guidance to the CASs in the preparation of their service and budget estimates. The provision of these allocations was not inconsistent with the actual allocation decisions having been taken in August 2009.
[70] The fact that the funding allocations in August 2009 largely reflected the estimates provided by the Ministry in June 2009 is also not determinative. These allocations were not materially different from the planning allocations provided in prior years. They were based on the estimated service volumes provided by the CASs and therefore were bound to be very close to the final allocations when the funding model was applied unless the CASs revised their estimated service volumes in submitting their service and budget estimates. As the Applicants point out, these circumstances reflect the decision of the Ministry to allocate exclusively on the basis of its funding model. It is not disputed that any differences between the June 2009 estimates and the August 2009 funding allocations represented the Ministry’s acceptance of different estimated service volumes because the funding for such services was fixed in the model.
[71] As a legal matter, the Ministry’s determination of the funding allocations after reviewing the service and budget estimates submitted by the CASs against the funding model fully complied with section 14(3) of the Regulation. As set out above, that provision provides full discretion to the Minister in the approval process absent an abusive use of that discretion. In the present case, the Minister was entitled to vary particular CAS service and budget estimates by the application of its funding model.
[72] Accordingly, we see no basis for the Applicants’ argument based on a jurisdictional error on the part of the Minister.
[73] Second, the Applicants argue that their situation is unique because they are mandated to provide the child welfare services they deliver. They argue that these circumstances should inform the interpretation of section 19 of the CFSA and section 14 of the Regulation. Whether or not the CASs are unique in this respect, we do not agree that the statutory requirement to deliver mandated services provides a basis for the Applicants’ position that the process of allocating funding to the CASs contravened the CFSA and the Regulation.
[74] The Applicants rely on the mandatory language, i.e., the use of “shall”, in sections 19(2) and (4) of the CFSA and sections 14(1) and (3) of the Regulation. They say this reflects a legislative intention to impose a legal duty on the Minister. However, this argument only states the obvious – that the Minister must determine the funding to be allocated to each CAS in accordance with the procedure contemplated by section 14 of the Regulation. It begs the question as to the outcome of that procedure when the legislative appropriation is less than the total of the budgets submitted by the CASs.
[75] The Applicants argue that this question is answered by the mandatory nature of their obligation to provide child welfare services because of the risk that a failure to fund to the level sought by an individual CAS will risk a failure to deliver child welfare services in its territory to the service levels mandated by the CFSA. The Applicants acknowledge that their position entails an effective priority over the funds appropriated in favour of the Ministry.
[76] This interpretation of the CFSA and the Regulation displaces the Minister’s discretion regarding the funding process in favour of the CASs. It has two significant consequences. It removes the governmental discretion to allocate funding according to the criteria the Minister considers most appropriate, including fairness and consistency among the CASs themselves. It also has the result that the individual CASs, which determine their respective administrative structures to deliver the mandated services under the CFSA, would cease to be accountable for the delivery of those services on a cost-effective basis.
[77] Allocation of funding for child welfare services raises fundamental policy questions, the determination of which lies with the Minister. There is neither statutory nor policy support for the Applicants’ position. Section 19(2) of the CFSA provides for discretionary legislative appropriations to the Ministry. It does not require or compel a supplemental legislative appropriation in favour of the Ministry to the extent that the collective CAS budgets or expenditures in any year exceed the amount previously appropriated in respect of such year.
[78] In addition, it is important to recognize that the Applicants have detached the process of determining the funding allocations in August 2009 from the totality of the relationship between the Ministry and the CASs, including, in particular the on-going process of Ministry funding of the CASs. In so doing, the Applicants disregard other important features of the funding process in the 2009/2010 fiscal year that collectively demonstrate the on-going policy-making function of the Ministry in regard to funding of the CASs.
[79] First, as mentioned, as a result of the Section 14 Reviews, eight of the CASs, including two of the Applicants, received additional funding in accordance with the application of the funding model. Second, the Section 14 Reviews identified a number of exceptional circumstances. As a result, seven of the Applicants received one-time funding from the Ministry in the supplemental appropriation received by the Ministry in February 2010 after completion of the Reviews. Third, the service and budget estimates were not fixed in August 2009. They were always subject to a year-end reconciliation based on actual service volumes. In the present case, the service volumes, and therefore the funding eligibility, of eight of the Applicants actually decreased in the 2009 fiscal year from the amounts allocated to them in August 2009. Fourth, an extraordinary expense of one of the Applicants, related to a coroner’s inquest, was addressed after the 2009 fiscal year. Lastly, the accumulated debt of four of the Applicants was funded upon their amalgamation in 2011 as part of an on-going Ministry initiative of identifying potential administrative efficiencies in the delivery of child welfare services.
[80] These additional funding decisions of the Ministry demonstrate that the process of approving the service and budget estimates under section 14(3) of the Regulation cannot be given the defining role attributed to it for the purposes of this proceeding. It is part of an on-going dialogue between the Ministry and the CASs relating to the funding of the CASs that reflects the policy-making nature of the Ministry’s role.
Allegation of Fettering of the Minister’s Discretion by the Regional Directors
[81] The Applicants also submit that the Minister fettered her discretion under the CFSA and the Regulation through the application of a Ministerial policy against the allocation of additional funding, the mechanical application of the funding model and a lack of good faith in the consideration of the Applicants’ submissions in the Section 14 Reviews. We will comment on each of these three claims in turn. None of these claims can succeed given the analysis above of the policy-making function of the Minister’s determination of the funding allocations to the CASs.
[82] First, the Applicants argue that the Minister fettered her discretion by adopting a policy against seeking further funds from the Treasury Board by means of a supplemental appropriation. Such circumstances cannot ground a claim of fettering of the Minister’s discretion. The determination of the level of aggregate funding for child welfare services in Ontario falls clearly within the policy-making function of the Government of Ontario and is not subject to judicial review. For the same reason, correspondence of one of the Regional Directors stating that the Ministry did not intend to seek a further appropriation from Treasury Board after completion of the Section 14 Reviews, and the consequential need for the CASs to balance their respective budgets, does not support the Applicants’ argument. Such correspondence, and similar oral statements, simply re-confirmed the parameters within which the Section 14 Reviews were to be conducted.
[83] Second, given the determination above that the Minister was entitled to determine the funding allocations in the manner described in these reasons, the Applicants’ argument based on the application of the funding model cannot succeed. The Applicants are, in effect, suggesting that the Minister was required to conduct the Section 14 Reviews by applying a different approach from the approach that the Minister was entitled to apply in making the initial allocations and, in the process, the Minister was required to give effect to the service and budget estimates submitted by the Applicants. If there was no such obligation under section 14(3) of the Regulation, there can be no such obligation under a Section 14 Review conducted under section 14(8) and (10) of the Regulation. The Minister’s statutory discretion under section 14(3) was preserved in conducting the Section 14 Reviews. Indeed, the discretion was considerably broader insofar as the language of section 14(10) requires no more than a consideration of the submissions of a CAS.
[84] The Applicants seek to avoid this conclusion by alleging that the application of the funding model did not, by itself, constitute a fettering of the Minister’s discretion. Instead, they argue that the Minister fettered her discretion by the “mechanical” application of the funding model. This argument treats the funding model as a previously formulated and inflexible rule. As set out above, that is a mischaracterization of the funding model. As mentioned, what the Applicants really object to are the cost factors in the model in relation to them. Even if the model did not exist, the Ministry would have to reach its own views as to the appropriate cost factors for each CAS in the circumstances of a fixed legislative appropriation. As a related matter, the Regional Directors’ discretion had to be exercised within the framework of the fixed legislative appropriation for child welfare services. As discussed above, it cannot be a fettering of the Minister’s discretion to proceed on the basis that no further legislative appropriation will be made.
[85] Lastly, there is no evidence of a lack of good faith on the part of the Regional Directors who conducted the Section 14 Reviews. As noted above, the Section 14 Reviews resulted in adjustments to the approved service and budget estimates of eight CASs for which a supplemental legislative appropriation was sought and received. It also resulted in a number of the Applicants receiving additional one-time funding based on exceptional circumstances identified in the Section 14 Reviews. More generally, the evidence described above demonstrates that the Regional Directors approached the Section 14 Reviews with an open mind to the extent required in the present circumstances also negates the Applicants argument of a lack of good faith.
[86] In addition, the failure to provide additional funding in the circumstances in which Ministry staff agreed with an Applicant’s explanation for its proposed deficit does not constitute an absence of good faith or a fettering of the Minister’s discretion. The Applicants argue that such decisions were unreasonable and therefore constitute evidence of bad faith. These are not apposite concepts in circumstances involving the policy-making authority of the Minister. The Court does not have the authority to judicially review a Minister’s funding allocation on the grounds of unreasonableness in the eyes of an affected party unless there is an allegation of abuse of that discretion, which is absent in this proceeding.
Allegation of the Existence of a Reasonable Apprehension of Bias
[87] The Applicants further argue that the conduct and statements of the Minister and the Regional Directors both before and during the Section 14 Review process show that there was a reasonable apprehension of bias in that the decision-makers had made up their minds and pre-judged the outcome of those reviews. There is no basis for concluding that these parties exhibited a reasonable apprehension of bias in respect of the Section 14 Reviews.
[88] The requirement for impartiality is an aspect of the requirement for procedural fairness. What constitutes a reasonable apprehension of bias on the part of a decision maker is a fact specific inquiry that requires consideration of a number of factors including the terms of the applicable statute, the function performed by the decision-maker, and the nature of the decision: see Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170 at para. 44.
[89] In the present circumstances, the Section 14 Reviews were limited by statute to a consideration of the Applicants’ oral and written submissions. The Ministry accepts that there was an obligation to give serious consideration to the individual circumstances of each Applicant. There was, however, no obligation to accept the submissions of the Applicants. Moreover, as discussed above, the Applicants cannot challenge the Ministry policy decisions not to seek a supplemental appropriation from the Treasury Board in the 2009 fiscal year and to apply the funding model. The Section 14 Reviews must be assessed against this background. In particular, a significant consequence is that the Section 14 Reviews were essentially administrative rather than judicial in nature.
[90] Accordingly, to succeed on this application, the Applicants must demonstrate that the Regional Directors had a “closed mind” in respect of the application of the funding model to the particular circumstances of the Applicants. This requires demonstration that the Regional Directors had so pre-judged the Section 14 Reviews that any submissions of the Applicants were unlikely to be effective.
[91] They have not established such facts. At best, they have established that the Regional Directors indicated an intention to conduct the Section 14 Reviews within the context of the application of the funding model to each CAS. Given the analysis above, an intention to conduct the Section 14 Reviews on this basis cannot constitute evidence of a “closed mind”. The mere fact that a decision-maker is required to act on the basis of governing principles or guidelines does not, by itself, demonstrate bias or a “closed mind” on the part of the decision-maker.
[92] In any event, the evidence demonstrates that the Regional Directors, and other Ministry staff, gave serious consideration to all of the issues raised by the Applicants even if the Section 14 Reviews did not result in additional funding in respect of all such issues. As mentioned, eight of the CASs, including two of the Applicants, received additional funding based on the application of the funding model as a result of the Section 14 Reviews. Moreover, the evidence is that the Regional Directors were mandated to, and did in fact, conduct the Section 14 Reviews with a view to identification of exceptional circumstances that were addressed by the Ministry outside the funding model.
[93] Among other documents, the “Summary of Issues” prepared after the meeting of the Regional Directors on November 23 and 24, 2009 reflects a detailed consideration of the issues raised in the Section 14 Reviews by all of the CASs who requested such Reviews. While a decision was taken not to vary the funding in many instances, the document also reflects a “parking lot” of issues and a list of exceptional circumstances, both of which were addressed in various ways after the Section 14 Reviews.
[94] Collectively, this evidence demonstrates that the Regional Directors conducted the Section 14 Reviews with a view to other considerations beyond the mathematical correctness of the application of the financial model to the circumstances of the Applicants. It contradicts the Applicants’ submission of a “closed mind” on the part of the Regional Directors.
[95] More generally, there is no evidence that the Ministry intended to deny funding to the CASs to the point where delivery of any mandated child welfare services was no longer feasible. In a time of a constrained provincial budget, there is necessarily going to be some tension between the Ministry and the CASs over necessary funding limits. This is, however, mitigated to a large extent by the continuous contact between the parties and the regular assessment of actual service levels throughout the year and consideration of other expenditures requiring funding outside the funding model. The Applicants’ narrow focus on the statements of the Ministry staff pertaining to the intended approach to the Section 14 Reviews disregards entirely this significant dynamic and on-going relationship in respect of funding matters.
Allegation of an Improper Sub-delegation of the Minister’s Authority to the Regional Directors
[96] The Regulation states that it is the Minister who conducts the Section 14 Reviews and renders the decisions that result from those reviews. In this case, that authority was delegated to the Regional Directors. The Applicants allege that this sub-delegation was improper.
[97] In our view, the delegation to the Regional Directors was expressly authorized by statute and, to the extent it was not, such delegation, is implicitly authorized under the CFSA.
Express Statutory Authorization
[98] Until 2003 the Minister charged with administering the CFSA (initially enacted in 1985) was the Minister of Community and Social Services. Section 5(1) of the Ministry of Community and Social Services Act, R.S.O. 1990, c. M.20 provides as follows:
- (1) Where, under this or any other Act, a power is conferred or a duty is imposed upon the Minister or upon an employee of the Ministry, such power or duty may be exercised or discharged by any other person or class of persons whom the Minister appoints in writing, subject to such limitations, restrictions, conditions and requirements as the Minister may set out in his or her appointment.
[99] Thus, pursuant to s. 5(1) of the Ministry of Community and Social Services Act, the Minister of Community and Social Services had the express statutory authority to delegate any powers or duties he or she had under the CFSA. Pursuant to this authority, on February 15, 1995, the then Minister of Community and Social Services executed a document sub-delegating his authority under certain sections of the CFSA, including s. 14 of the Regulation, to certain parties, including Area Managers. The document specifically authorizes the Area Managers:
To exercise and discharge the powers conferred and the duties imposed on the Minister of Community and Social Services pursuant to:
- Sections 8 and 9, subsection 10(1), clauses 10(4)(d) and (e), subsection 22(2) of the Child and Family Services Act, R.S.O. 1990, c. C.11, as amended, and sections 2, 5, 14, 26 and 27 of the Regulation, as amended, in connection with the approval of agencies and premises, the maintenance and operation of the premises and the provision of financial assistance.
[100] Further, the document provides that the appointment includes “every person who fills any position, or who belongs to any level of position mentioned in the appointment in any capacity, or as a temporary assignment.”
[101] In 1999, after a ministry reorganization, the position of the Area Manager was replaced with that of the Regional Director, who carried out the functions formerly exercised by Area Managers, but over larger geographical regions. This included exercising the Minister’s powers and duties under s. 14 of the Regulation pursuant to the document executed in February of 1995.
[102] In 2003, the Ministry of Children and Youth Services was created, and in 2004 that Minister was assigned responsibility for administering the CFSA. An Order in Council was issued on March 10, 2004, stipulating this transfer of duties. That Order in Council expressly provides that the Minister of Children and Youth Services “shall exercise all powers and duties and preside over all programs and activities under the statutes as set out in the appendix to this Order in Council, including the powers and duties of ‘the Minister’ as defined in those statutes, and, as of the date of this Order in Council, all of the powers and duties: under Part IV of the Child and Family Services Act….” Attached to the Order is an appendix of statutes. That appendix lists both the CFSA and the Ministry of Community and Social Services Act.
[103] This transfer of duties was explicitly authorized by s. 5(1) of the Executive Council Act, R.S.O. 1990, c. E.25, which reads as follows:
5 (1) Any of the powers and duties that have been heretofore or may be hereafter assigned by law to any minister of the Crown may from time to time by order in council be assigned and transferred either for a limited period or otherwise to any other minister by name or otherwise.
[104] According to the Applicants, once the responsibility for administering the CFSA was transferred to the Ministry of Children and Youth Services, there was no longer any statutory authority for that Minister to sub-delegate his or her responsibilities under the CFSA to anyone, since the CFSA does not contain the equivalent of s. 5(1) of the Ministry of Community and Social Services Act.
[105] This argument ignores the rest of the 2004 Order in Council that effected the transfer of powers and responsibilities from the Minister of Community and Social Services to the Minister of Children and Youth Services. This Order in Council makes it clear that the Minister of Children and Youth Services is authorized to “exercise all powers and duties” of the Minister of Community and Social Services under all the statutes listed in the appendix that is appended to the Order. One of the statutes listed in that Appendix was the Ministry of Community and Social Services Act. Therefore, the source of the Minister of Children and Youth Services’ statutory authority to sub-delegate lies not in the CFSA, but in s. 5(1) of the Ministry of Community and Social Services Act.
[106] The question then becomes whether the sub-delegation document that was executed in February of 1995 survived the changes that occurred in the administration of child welfare services that were made in 1999 (when the position of Area Director was eliminated and their duties were assumed by Regional Directors) and in 2004 (when responsibility for administering Part IV of the CFSA was transferred to the Minister and the Ministry of Child and Youth Services).
[107] In our view it does. First, pursuant to s. 81 of the Legislation Act, S.O. 2006, c. 21:
- The delegation of a power or duty remains valid until it is revoked or amended, even if the author of the delegation is no longer in office.
[108] The delegation executed in February of 1995 was never amended or revoked.
[109] Second, the presumption of regularity operates to support the continued validity of this sub-delegation. In Canada Safeway Ltd. v. Surrey (City), 2004 BCCA 499, [2004] B.C.J. No. 2199, the British Columbia Court of Appeal summarized the presumption, at para. 24:
[…] A correct statement may be found in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (2nd, 1999):
The common presumption of regularity is sometimes referred to by its Latin label omnia praesumuntur rite esse acta. In its narrower application, the presumption serves to regularize the appointment and acts of persons acting in an official capacity. Where a person is showed to have acted in an official capacity it is supposed that the person would not intrude herself or himself into a public situation without authorization. Furthermore, the person’s acts are presumed to be regular […]. [Emphasis in judgment.]
[110] In applying the presumption to the case at bar it is important to keep in mind that neither the substitution of the Area Director with the Regional Director nor the transfer of duties from the Minister of Community and Social Services to the Minister of Children and Youth Services were changes of the kind where one would expect that a government would have to execute a new sub-delegation document.
[111] Regional Directors assumed the same duties as those of the Area Directors, just over a larger geographical area. This kind of government reorganization happens all the time and to require that every sub-delegation document be amended to reflect these reorganizations would be to put an unreasonable burden on government, one that emphasizes form at the expense of substance.
[112] Similarly, when Cabinet transferred certain of the powers and duties of the Minister of Community and Social Services to the Minister of Children and Youth Services (as it was statutorily authorized to do), no new legislation was passed and no new powers or duties were created. Again, there is no reason of substance why the government would have to ensure that any sub-documents that were executed by the Minister of Community and Social Services should then have to be re-executed by the Minister of Children and Youth Services.
Implicit Authority to Delegate
[113] If there is some technical deficiency in the Minister’s express sub-delegation of the conduct of the Section 14 Reviews to the Regional Directors, the wording of the CFSA and its Regulations and the nature of the discretionary powers under discussion make it appropriate to apply the “Carltona doctrine.” This doctrine creates a presumption that discretionary powers conferred on a Minister under a statute may be exercised by responsible officials in that Minister’s department.
[114] The Legislature is the original source of power for matters falling within provincial jurisdiction. Through legislation, the Legislature can delegate its powers to ministers and other subordinate officials. The general rule regarding the sub-delegation of statutory powers is delegatus non potest delegare; a person endowed with a discretionary power must exercise it personally except where displaced by the language, scope or object of a particular administrative scheme.
[115] However, the Carltona doctrine, which originates from the English Court of Appeal decision of Carltona Ltd. v. Commissioner of Works, [1943] 2 All E.R. 560 (C.A.), addresses the administrative reality of the modern state. In R. v. Harrison, [1977] 1 S.C.R. 238 at 245, the Supreme Court of Canada affirmed the Carltona doctrine and explained its rationale. Simply put, to require Ministers of the Crown to perform so many tasks personally would be unreasonable and would lead to “administrative chaos and inefficiency:”
A power to delegate is often implicit in a scheme empowering a Minister to act […]. Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person, but by responsible officials in his department: Carltona Ltd. v. Commissioner of Works. The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities. Any other approach would but lead to administrative chaos and inefficiency.
[116] There are limits to the applicability of the Carltona doctrine. It can yield to the general maxim of delegatus non potest delegare where the language of the statutory scheme indicates that the power is one that is to be personally exercised by the Minister or where the nature of the power conferred is not one that warrants delegation.
[117] In Ramawad v. Canada (Minister of Immigration and Manpower), [1978] 2 S.C.R. 375, the Supreme Court of Canada quashed a deportation order on the basis that there had been an improper delegation of the Minister’s powers to a Special Inquiry Officer. The Court reviewed the statutory and regulatory scheme of the Immigration Act and found that Parliament had explicitly recognized that there were different levels of authority, including the Governor in Council, the Minister, the Director, the Special Inquiry Officer and the Immigration Officer. The Court also found that the Act clearly specified the authority that was being granted to each level and, in doing so, reserved the most important functions (such as deportation) to the Minister’s discretion. Furthermore, the Act contained a provision specifying the officials to whom the Minister could delegate his authority under the Act. The list did not include Special Inquiry Officers.
[118] The CFSA and the regulations made thereunder contain a large number of provisions that impart powers and duties to the Minister, many of which deal with funding and approvals for various entities. It does not contain a provision that limits the officials to whom the Minister can delegate his or her authority.
[119] This large number of provisions that confer authority on the Minister militates against a finding that the Minister must personally carry out all of these tasks, including the Section 14 Review process. There are 53 CASs. For the Minister to personally approve each of the service and budget estimates and to conduct each of the reviews would be unreasonable. In the year in question there were 37 reviews. Further, it is the Regional Directors, not the Minister, who have the knowledge and expertise necessary to assess the service and budget estimates and to conduct the reviews. They are the parties who know how each CAS functions.
[120] In Edgar v. Canada (Attorney General) (1999), 46 O.R. (3d) 294 (C.A.), the Court of Appeal concluded that the specific language of the provision at issue suggested that it was the Minister alone who could make the decision in question. That case concerned the payment of an award to a person who had provided information that led to the detection of a violation of the customs laws.
[121] The Customs and Excise Award Payment Regulations, C.R.C. 1978, c. 457 provided that where “it is shown to the satisfaction of the Minister that information or other aid received from any person has contributed substantially to the detection or violation of the customs laws…,” and “in the opinion of the Minister an award is merited, the Minister may, in his sole discretion, authorize payment of an award in an amount that he considers appropriate.” The appeal in Edgar raised several questions, one of which was whether the trial judge had erred in concluding that these provisions did not require the Minister himself to authorize or refuse payment to the appellant.
[122] In answering this question, the Court of Appeal looked to the specific wording of the regulation and concluded that the words “in the opinion of the Minister” and “in his sole discretion” suggested that it was the Minister alone who could act. The Court, at para. 43 contrasted this wording with provisions that merely provide that “the Minister may” do something:
The leading cases establish that a contrary intention does appear when Parliament uses language that modifies the basic words “the Minister may”. In Ramawad v. Minister of Manpower and Immigration, supra, the Supreme Court of Canada held that the words “in the opinion of the Minister” require the Minister personally (or someone else specifically authorized by the statute) to make the decision. Those precise words are also present in s. 3(1) of the regulation in issue in the present appeal. In Attorney General (Quebec) v. Carrières Ste. Thérèse Ltée, supra, the court held that the word “himself” qualifying Minister meant “in person”. It is difficult for me to see any logical difference between “himself” and “in his sole discretion” which is the second set of relevant words in s. 3(1). Both, in common parlance, suggest exclusivity.
[123] In the case at bar the Regional Directors made their decisions pursuant to sections 14(3) and (10) of the Regulation. Both provisions contain only the phrase “the Minister may”:
14(3) The Minister may approve or vary and approve a service and budget estimate […]
14(10) After considering the presentation or written submissions made by the approved agency or approved corporation, the Minister may,
(a) vary the service and budget estimate or amended estimate and approve it as varied; or
(b) confirm the service and budget estimate previously approved under this section.
[Emphasis added]
[124] For these reasons, unlike in Edgar and Ramawad, the Minister does have the implied authority to sub-delegate her decision making authority under s. 14 of the Regulation, both because of the nature of the discretion entrusted to the Minister and because of the specific wording of the provisions at issue.
Alleged Insufficiency of Reasons
[125] The Applicants also submit that the decisions on the Section 14 Reviews are invalid due to insufficient reasons.
[126] There is no statutory obligation on the part of the Minister to give reasons for the funding decision. However, the Regional Directors provided letters to the Applicants. With the exception of the letters from the Regional Director for the South West region, Steckenreiter, the letters contained a brief explanation. Even if those from Steckenreiter lacked an individualized explanation, the affected Applicants knew why their requests for review were rejected, as they were aware that he was constrained by the funding model in conducting his review. In the circumstances, there was no denial of procedural fairness because of the form of the decision letters.
Conclusion
[127] For these reasons, the application for judicial review is dismissed. The Ministry does not seek costs.
Swinton, J.
Sachs, J.
Wilton-Siegel, J.
Released: October 2, 2012
CITATION: Huron Perth Children’s Aid Society v. Ontario, 2012 ONSC 5388
DIVISIONAL COURT FILE NO.: 613/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
HURON-PERTH CHILDREN’S AID SOCIETY, CHATHAM-KENT CHILDREN’S SERVICES, THE CHILDREN’S AID SOCIETY OF THE DISTRICT OF NIPISSING AND PARRY SOUND, FAMILY AND CHILDREN’S SERVICES OF ST. THOMAS AND ELGIN, DURHAM CHILDREN’S AID SOCIETY, CHILDREN’S AID SOCIETY OF THE CITY OF KINGSTON AND COUNTY OF FRONTENAC, THE CHILDREN’S AID SOCIETY OF OXFORD COUNTY, THE CHILDREN’S AID SOCIETY HALDIMAND AND NORFOLK, THE CHILDREN’S AID SOCIETY OF BRANT, SERVICES À L’ENFANCE ET À FAMILLE DU TIMISKAMING CHILD AND FAMILY SERVICES, AND CHILD AND FAMILY SERVICES OF TIMMINS AND DISTRICT
Applicants
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO AS REPRESENTED BY THE MINISTRY OF CHILDREN AND YOUTH SERVICES, THE MINISTER OF CHILDREN AND YOUTH SERVICES AND HER DELEGATES
Respondents
REASONS FOR JUDGMENT
Released: October 2, 2012