R.N. (by his Litigation Guardian L.N.) et al. v. Her Majesty the Queen in Right of Ontario, as represented by the Minister of Community, Family and Children's Services of Ontario et al.

[Indexed as: N. (R.) (Litigation Guardian of) v. Ontario (Minister of Community, Family and Children's Services)]

70 O.R. (3d) 420

[2004] O.J. No. 1135

Divisional Court File Nos. 697/02 and 698/02

Ontario Superior Court of Justice Divisional Court

Benotto, S.J., Dunn and McCombs JJ.

March 18, 2004

Administrative law -- Judicial review -- Procedural fairness -- Child suffering from severe disabilities -- Child's parent applying to Ministry of Community, Family and Children's Services for additional special needs funding -- Only fraction of parent's funding request allowed -- Applicant not advised of criteria for funding -- Applicant not advised of reasons for Minister's decision -- Applicant denied procedural fairness -- Minister's decision subject of judicial review -- Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 2(2), 7.

JC and RN were children with severe disabilities, including Autism Spectrum Disorder. JC, who was 10 years old and in need of constant supervision, was cared for at home by his mother. RN, who was 14 years old, also needed constant care. His father stayed at home to care for RN. Both children received special needs funding from the Ministry of Community, Family and Children's Services ("the Ministry"). In early 2001, after preparing detailed proposals, and with the understanding that funding was available, the families for both children applied for additional funds made available under the Child and Family Services Act (the "CFSA"). JC's mother applied for $119,963. Of this request, she was advised by the Ministry that only $11,072 was approved. No explanation was provided for this outcome. RN's father applied for $74,434, of which only $11,280 was approved. No explanation was provided. JC and RN applied for judicial review of the respective decisions. The Minister denied that the decisions were subject to review.

Held, the application for judicial review should be granted.

The Minister, under s. 7 of the CFSA, had the power to decide the eligibility of persons to receive benefits. The Minister's powers were not policy decisions about whether to fund a particular project; rather, the Minister's decisions involved implementing the decision already made to provide funding. The implementation process was subject to judicial review. Both the CFSA and the common law required procedural fairness. The standard of fairness was not met in the immediate case by simply allowing the applicants to make a request. The standard of [page421] fairness was affected by the importance of the decision to the person affected, the nature of the decision, the statutory framework, the legitimate expectations of the applicant and the procedure actually followed. In the immediate case, the importance of the decision to the families was monumental. They provided detailed proposals and their legitimate expectations would include that there would be some objective criteria in the decision-making process. However, amongst other things, they were never informed of the criteria and they were awarded a fraction of their requests without any explanation. They were not given a chance to meet Ministry representatives or to respond to any objections to their proposals. The duty of procedural fairness was breached. The decisions should be referred back to the Minister for reconsideration.

APPLICATION for a judicial review.

Shah v. Ontario, [2000] O.J. No. 2843 (QL), [2000] O.T.C. 600 (S.C.J.), distd Other cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, 243 N.R. 22; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 226 D.L.R. (4th) 193, 304 N.R. 76, 2003 SCC 29, [2003] S.C.J. No. 28; Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) (1991), 1991 7099 (ON SC), 2 O.R. (3d) 716, 46 O.A.C. 246, 78 D.L.R. (4th) 289, 34 M.V.R. (2d) 276 (Div. Ct.) Statutes referred to Canadian Charter of Rights and Freedoms Child and Family Services Act, R.S.O. 1990, c. C.11, ss. 1, 2(2), 7 Developmental Services Act, R.S.O. 1990, c. D.11, s. 2(2)

Brian Finlay, Q.C., and Marie-Andrée Vermette, for applicants. E.M. Venhola, for applicants Community Legal Clinic (Simcoe, Haliburton, Kawartha Lakes). Diane Wintermute, for applicants ARCH. William J. Manuel and Shaun Nakatsuru, for respondents.

The judgment of the court was delivered by

[1] BENOTTO S.J.: -- [J.C.] and [R.N.] are children with severe disabilities including Autism Spectrum Disorder. Their parents applied for certain funding from the Ministry of Community, Family and Children's Services ("the Ministry") for services under the Child and Family Services Act, R.S.O. 1990, c. C.11 ("CFSA") in three applications each. They now seek judicial review of those decisions. [^1] [page422]

[2] The applicants say the respondents violated their rights to a fair process and that the decisions are patently unreasonable.

[3] The respondents say that the decisions are not subject to review, and if they were, they were fair and reasonable.

Facts

[4] [J.C.] is ten years old. In addition to Autism Spectrum Disorder, he has been diagnosed with Pervasive Development Disorder. He does not speak. He requires constant supervision and assistance for all basic functions including feeding, bathing and going to the bathroom. His disability causes behaviours which have resulted in his suspension from school. His mother works part time from home to care for him.

[5] [R.N.] is 14 years old. In addition to Autism Spectrum Disorder, he has exhibited psychotic behaviours. He has limited verbal skills. His disability results in aggression that puts others at risk. He too needs constant care and assistance with personal support. He too has been suspended from school. His father is at home to care for him.

[6] Both children receive annual special needs funding from the Ministry under two programs: Special Services at Home ("SSAH") and Assistance for Children with Severe Disabilities ("ACSD"). In early 2001, additional money was allocated by the Ministry to pay for services for special needs children. This additional fund is the subject of this application. Both families made applications to the fund.

[C.] Decision

[7] Ms. [C.] prepared a detailed proposal for assistance. She was helped by a case worker from Barrie and District Association for People with Special Needs ("BDAPSN"). This association is a Transfer Payment Organization ("TPO") which receives funding for providing services to families. Her proposal was for $119,963. [^2]

[8] She was advised by letter on June 14, 2001, that funding was approved in the amount of $11,072. According to the letter, this amount "can be used to provide the family with flexible staffing and program supports for increased respite care and a special needs worker in the family's home throughout the year". Together with the SSAH and ACSD funding, the total she received was $22,662.

[9] A similar process ensued in 2002 and again in 2003. Although the amounts differed, the process was the same. So too [page423] the result: a fraction of the amount requested was provided, and a letter from a Ministry representative advised of the results.

[N.] Decision

[10] Mr. [N.] also put forth a proposal. In 2001, he requested $122,508, revised to $91,680, then to $74,434. He was helped by Catulpa Tamarac, a TPO for his region.

[11] On the same day as the [C.] letter was sent (June 14, 2001), he too was advised by a similar letter that additional funds would be $11,280. This brought his total funding (including SSAH and ACSP) to $23,580. Mr. [N.] also submitted amounts for 2002 and 2003 with results similar to Ms. [C.].

[12] Ms. [C.] and Mr. [N.] were led to believe that the funding would be approved. The tacit denial of their requests came with similar letters which provided a summary response without reasons or an appeal process.

[13] These six decisions (one each year for three years for each family) are the subject of a request for review.

Statutory Decision

[14] The respondents take the position that the decision is not a statutory decision. Rather, they allege it was a straightforward funding decision and not subject to judicial review. They rely on Shah v. Ontario, [2000] O.J. No. 2843 (QL), [2000] O.T.C. 600 (S.C.J.), where the court concluded that such decisions involve "allocation of scarce resources among the developmentally handicapped" and are not subject to review.

[15] Section 7 of the CFSA provides:

7(1) The Minister may,

(a) provide services and establish, operate and maintain facilities for the provision of services; and

(b) make agreements with persons, municipalities and agencies for the provision of services, and may make payments for those services and facilities out of legislative appropriations.

[16] This section clearly gives the Minister the power to decide the eligibility of persons to receive benefits. The Crown argues that this section "merely provides authority for the Minister (or his delegate) to enter into contracts on behalf of the Crown. It is not the source of the power of the Crown to enter into contracts." [^3] [page424]

[17] With respect, the section is not so limited. The section gives the Minister the power to decide eligibility of persons to receive benefits.

[18] Shah v. Ontario involved an application for judicial review of the Minister's decision not to grant additional funding to provide the applicant family with services to allow their 30-year-old son to live at home. The Minister had entered into an agreement to purchase ongoing maintenance for the care. The applicants sought additional funding.

[19] Justice Lofchik considered s. 2(2) of the Developmental Services Act, R.S.O. 1990, c. D.11, a provision similar to s. 7 of the CFSA. He held that decisions as to funding are governed by the agreement already entered into, not by statute. On this ground, the case is distinguishable since here, there was no agreement. However, if the interpretation of the distinguishing features of the case is wrong, I respectfully disagree with the decision.

[20] His honour stated [at para. 11]:

In my view, section 2(2) is not the authority for the Crown to make contracts. The right of the Crown to contract is a common law right. Section 2(2) would appear to merely be a recital of a pre-existing common law power.

[21] In my view, s. 7 of the CFSA is the power to disperse money and, within a legislative framework, gives the Minister powers. These powers are not policy decisions about whether to fund a particular project (as set out in Hamilton-Wentworth v. Minister of Transportation) [^4]. These decisions involve implementing the decision already made to fund services. The decisions are pursuant to the CFSA, which provides a process. The process is reviewable.

Procedural Fairness

[22] Both the statute and the common law mandate procedural fairness in the statutory decision process. The respondents argue that the procedural fairness is met when the applicants are allowed to put forth their request. With respect, this is not consistent with the statute or the common law.

[23] Section 2(2) of the CFSA provides:

2(2) Service providers shall ensure,

(a) that children and their parents have an opportunity where appropriate to be heard and represented when decisions affecting their [page425] interests are made and to be heard when they have concerns about the services they are receiving; and

(b) that decisions affecting the interests and rights of children and their parents are made according to clear, consistent criteria and are subject to procedural safeguards.

[24] At common law, there is a general duty of procedural fairness which rests with every public authority making an administrative decision which affects rights, privileges or interests of an individual. In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, Justice L'Heureux-Dubé stated [at para. 28, p. 841 S.C.R.]:

The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory institutional, and social context of the decision. [^5]

(Emphasis added)

[25] Factors which affect this duty include the importance of the decision to the persons affected, the nature of the decision, the statutory framework, the legitimate expectations of the person challenging the decision and the procedure actually followed.

[26] The statutory intent here is clearly articulated in the following section of the CFSA:

1(1) The paramount purpose of this Act is to promote the best interests, protection and well being of children.

[27] Additional purposes [in s. 1(2)] include:

1. To recognize that while parents may need help in caring for their children, that help should give support to the autonomy and integrity of the family unit and, wherever possible, be provided on the basis of mutual consent.

2. To recognize that the least disruptive course of action that is available and is appropriate in a particular case to help a child should be considered.

[28] The importance of the decisions to the families was monumental. They are not wealthy. The evidence demonstrates the day-to-day struggles necessary to care for these children and the financial and emotional costs to the family.

[29] The families provided detailed proposals. Their legitimate expectations would include some objective criteria in the decision-making process. Instead, they were simply told what they were being awarded. There was no apparent criteria or procedure. [page426]

[30] The process fell short of the procedural fairness mandated by law. In particular:

-- the applicants were never informed of the criteria for funding, although they were led to believe by Ministry representatives that the information provided as to need would be considered on an individual basis;

-- the applicants were given no information about the guidelines for funding;

-- the applicants were led to believe during meetings that their proposals would be accepted;

-- the applicants were awarded a fraction of the proposal and no reasons were given;

-- the applicants were not given a chance to meet with the Ministry representatives in 2002 and 2003;

-- the applicants were given no opportunity to address any objections to the proposals;

-- no explanation was ever given.

[31] The duty of procedural fairness was breached. For this reason, the decisions must be quashed.

Patently Unreasonable

[32] The applicants urge the court to quash the decisions on the alternate ground that they are patently unreasonable. A patently unreasonable decision is one whose defect is immediate and obvious and so flawed that "no amount of curial deference can properly justify letting it stand." [^6]

[33] It is argued that it was patently unreasonable for the Minister to award such a small sum when it could not possibly provide the care intended. The 2001 decisions, for example, state that the additional funding (about $11,000 each) "can be used to provide the family with flexible staffing and program supports for increased respite care and a special needs worker during the summer months". Given the amount awarded, it is alleged that this is impossible.

[34] This issue cannot be properly considered properly because [page427] the Minister has given no reasons for the decision. It is also unnecessary to consider it in view of the conclusion that the decisions should be quashed.

[35] I would quash the decisions in accordance with the request of the applicants. The decisions are referred back to the Ministry to be reconsidered in light of these reasons.

[36] If parties are unable to agree on costs, they may exchange and submit written briefs within 30 days.

Order accordingly.

Notes

[^1]: The applicants had raised a Canadian Charter of Rights and Freedoms issue. They alleged that the Minister violated the parents' rights under the Constitution. For reasons delivered, this issue was adjourned to the completion of a case currently before Justice Kiteley. We proceeded to hear this application on the administrative law principles only.

[^2]: Subsequently reduced by about $4,000.

[^3]: Respondents' Factum, para. 72.

[^4]: Hamilton-Wentworth (Regional Municipality) v. Ontario (Minister of Transportation) (1991), 1991 7099 (ON SC), 2 O.R. (3d) 716, 78 D.L.R. (4th) 289 (Div. Ct.).

[^5]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.

[^6]: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, 226 D.L.R. (4th) 193, per Binnie J. at pp. 615-16 S.C.R., p. 252 D.L.R.