P.W., G.W. v. K.W., 2011 ABQB 642

Court of Queen ’ s Bench of Alberta Citation: P.W. v. Persons With Developmental Disabilities, Edmonton Region Community Board (Appeal Panel), 2011 ABQB 642 Date: 20111021 Docket: 0903 20467 Registry: Edmonton Between: P.W., G.W. and K.W. Applicants - and - Persons with Developmental Disabilities Appeal Panel, and Persons with Developmental Disabilities Edmonton Community Region Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] This is an application for judicial review of a decision of the Appeal Panel ( “ the Panel ” ) under the Persons with Developmental Disabilities Community Governance Act, RSA 2000 c. P-8 ( “ the Act ” ). The Panel dismissed the appeal of P.W. and his parents G.W. and K.W. ( “ the Applicants ” ). The Applicants seek judicial review of the Panel ’ s decision. Several grounds for review are advanced but one is central: was the hearing fair? I find it was clearly not, for reasons which follow.

Background [ 2 ] On March 18, 2009 the Persons with Developmental Disabilities Community Board ( “ the Board ” ) denied P.W. ’ s application for services under the Act. The March 18, 2009 denial was

based on the conclusion that: … P.W. ’ s intelligence, as demonstrated by psychological testing and by his academic results is at average, and therefore, P.W. does not meet PDD ’ s definition of a developmental disability as per the Community Governance Act. [ 3 ] The Applicants appealed to the Panel. Before the appeal was heard the parties entered into a dispute resolution process. Nothing was resolved. The Board affirmed its denial in a lengthier letter of April 29, 2009.

The relevant part of that letter read: P.W. ’ s Individual Program Plan (IPP) talks about some of the adaptations the school has made in order to accommodate P.W. ’ s unique learning style. The IPP from 2008-2009 provided P.W. ’ s final marks for June 2008. The marks ranged from 77% in English 20-1 to 92% in Math 20 Pure AP. These marks are not indicative of someone who has significant limitations in intellectual capacity. His marks reinforce P.W. ’ s abilities to succeed when provided with the tools and support for his particular learning style.

P.W. has worked hard and continues to work very hard to overcome his challenges. As stated previously, a person with significant limitations in intellectual capacity would not be able to achieve academically to the same level that P.W. has been able to achieve, even with extensive intervention, adaptation and support. [ 4 ] After the April 29, 2009 letter, but before the appeal was heard, the Board considered further evidence advanced by the Applicants. The Board then finally responded in a letter of May 29, 2009.

That brief letter reaffirmed the earlier denial on the basis that “ the further evidence failed to present factual evidence in relation to P.W. ’ s intellectual capacity … ” [ 5 ] Until the hearing of the appeal, the Board produced no further evidence and made no further representations, in the nature of opinions or otherwise, regarding the issue of P.W. ’ s intellectual capacity. [ 6 ] The appeal to the Panel was originally set to be heard May 20, 2009.

In its reasons the Panel specifically notes that in a May 14, 2009 letter of the appeals secretariat all parties were given a pre-hearing deadline to submit copies of all information to be raised at the appeal. The Panel does not specifically refer to that part of the same May 14, 2009 letter which states the parties will be given the opportunity at the hearing to “ share additional comments and information ” . Nor does it refer to its own “ Fact Sheet ” , provided to the Applicants as part of the appeal secretariat ’ s earlier April 7, 2009 correspondence.

The Fact Sheet states: The Community Board and the Appellant will be asked to submit information about the dispute to the Appeal Secretariat prior to the hearing. This information will be provided to the panel members and all parties to review before the appeal hearing. At the appeal hearing, the Appellant and the Community Board are each provided with an opportunity to present their case and to ask questions of each other. The Appeal Panel also is allowed to ask questions to ensure that they have a full understanding of the issue. [ 7 ] The Appeal was scheduled originally to be heard May 20, 2009.

That date was adjourned to June 5, 2009 in part to enable P.W. ’ s treating psychologist Dr. Ken Harrison to attend on account of the Board ’ s notice, given April 20, 2009, that it would bring its psychologist Jeff Rubin to be a witness at the hearing. Dr. Harrison had earlier produced a psychological report of April 29, 2009. It was that report which led to the Board ’ s reconsideration of the evidence and its final May 29, 2009 decision denying eligibility. Mr. Rubin did not submit a report in advance to the Panel.

He did attend the hearing however with an 11-page, single-spaced typed document which, for reasons to be made apparent, I will refer to as his report. As part of his participation in the appeal Mr. Rubin read verbatim from his report. Copies of the report were not provided to the Applicants or to the Panel. The report has now been produced together with other evidence relevant to the issue of procedural fairness, about which more in what follows. [ 8 ] I pause to note that over the objections of counsel for the Board I have found Mr. Rubin ’ s report to be part of the record before me on judicial review.

While it was not physically produced in advance of or at the hearing, it was clearly “ before ” the Panel in the sense that Mr. Rubin read from it verbatim. Doubtless the Panel relied on it as a key part of Mr. Rubin ’ s submissions on behalf of the

Board. Had the Panel recorded its proceedings no objection could have been made to the very same evidence forming part of the record. In these circumstances I have concluded the document is properly before me. [ 9 ] In due course the appeal was heard June 5, 2009. In reasons of July 7, 2009 the Panel upheld the decisions below on the basis that the “ evidence presented fell short of establishing a sufficiently significant limitation on [P.W. ’ s] intellectual capacity. ” [ 10 ] The issue before the Panel was whether P.W. came within the definition of “ developmental disability ” at s. 1(1)(

c) of the Act . It states: “ developmental disability ” means a state of functioning that (

i) began in childhood and; (ii) is characterized by a significant limitation, described in the regulations, in both intellectual capacity and adaptive skills. [ 11 ] It is common ground that before the Panel and for purposes of this judicial review no regulations existed to assist in the

interpretation of s. 1(1)(c). [ 12 ] It was also common ground that P.W. met the requirement of significant limitation in adaptive skills and that his presenting conditions were present in childhood. The central issue was whether P.W. met the requirement of significant limitation in intellectual capacity. [ 13 ] At the time of the hearing P.W. was 17 years old. As found by the Panel, at age one P.W. was diagnosed with cerebral palsy. At age three he was diagnosed with autism. At age four he was diagnosed with bilateral hearing loss.

Since grade four he has attended a regular classroom though assisted by a full-time aide and accommodated in other respects. In grade 11 he took advanced courses and achieved honours grades. He was finishing grade 12 at the time of the hearing and was accepted to university in the fall, 2009. [ 14 ] In its decision the Panel summarized the evidence and positions of the parties. As to the Applicants ’ case, in 15 paragraphs the Panel outlines what are clearly parts of Dr.

Harrison ’ s evidence, perhaps amongst other things; the Panel does not summarize in any methodical, identifiable way the lengthy and detailed reports of the Applicants ’ expert neuropsychologist Dr. Lloyd Flaro, or of occupational therapist Stacey Fortin, or the much briefer letters of psychiatrists Dr. Alan Carroll and Dr. Carole Ann Hapchyn. [ 15 ] As to the Board ’ s case, as noted there were no written reports to summarize aside from the Board ’ s own brief letters denying eligibility. That being said, in a series of nine paragraphs the Panel summarized what it called Mr.

Rubin ’ s “ evidence ” defending the Board ’ s position. The Panel attributed the following factual statements to Mr. Rubin: * “ … over his years of working with individuals with developmental disabilities, he never met anyone with a developmental disability who was able to achieve honors in high level high school courses, or who has been accepted into university, even with extra support. ” * Mr. Rubin read out the description of the advanced program the Appellant attended in high school and the course description of all of his courses. [ 16 ] The Panel also attributed to Mr.

Rubin the following opinions (amongst others):

* “ No matter how much support has been provided, an individual with a developmental disability would not be able to achieve these grades in high school. ” * “ … some of the lower scores could be due to problems in areas related to his Cerebral Palsy and bilateral hearing loss. ” * “ [Mr. Rubin ’ s] clinical impression is that the Appellant may have a non-verbal learning disability and this is why there is a spread in the two domains. ” * “ [Mr.

Rubin] acknowledges that the Appellant has autism and deficits in Executive Functioning however that does not equate to a significant limitation in intellectual ability … ” [ 17 ] These statements of fact and opinion amongst others are also found in Mr. Rubin ’ s report read at the hearing. Mr. Rubin introduced himself to the Panel as a 25-year employee of the Board and together with another Board colleague just one of two registered psychologists whose full-time practice is dedicated to individuals with developmental disabilities.

He gave evidence regarding a large number of individuals seen for counseling and assessments. He noted his additional “ major responsibilities ” with the Board involved sitting on the Board ’ s eligibility committee to review all applicants for PDD services where eligibility is in question. He noted that in the past year only 40 of 400 applicants were denied eligibility. In some cases Mr. Rubin would be involved performing psychological assessments. He noted that in 44 such cases in the previous year only six individuals were deemed ineligible. [ 18 ] With that background before the Panel, Mr.

Rubin went on to express the following opinion: … let me emphatically state that I have never met an individual with significantly below average intellectual capacity that is not only enrolled in a High School taking 20 or 30 level matriculation courses but also achieving honours in those courses. I also do not know of an individual with significant limitations in intellectual capacity that has been accepted into a University. [ 19 ] Mr. Rubin then spoke to P.W. ’ s school experience, evidence of which was already before the Panel.

He then however introduced previously undisclosed details of P.W. ’ s grade 11 courses which he stated he obtained via the internet: I would now like to review quickly some of the academic courses that, according to information on file, P.W. was enrolled in at school last year, to again emphasize that someone with a significant limitation in intellectual capacity would not be able to enroll in nor succeed to the degree P.W. has been able to succeed. … Now the appellants may argue that P.W. receives specialized instructional accommodations and strategies in school, including access to a full-time teaching assistant, specialized strategies and assignments, additional time to plan and complete assignments, and so forth.

Nevertheless, no matter how much individualized help or assistance a student receives, or no matter how much one-to-one assistance they receive, if an individual has a significant limitation in intellectual capacity, there is no way the individual would be able to successfully pass these university entrance courses, let alone achieve honours in these courses. In order to achieve the marks that P.W. has achieved, one would need to have at least average to high average cognitive abilities. [ 20 ] Mr.

Rubin then turned to a detailed critique of the reports of Applicants ’ experts Stacey Fortin and to a greater extent Dr. Flaro. In the course of his comments he opined that P.W. had, and had been diagnosed with, a nonverbal learning disorder; that he had not only autism but “ more specifically, high functioning autism ” ; that notwithstanding competing theories of intelligence, at the end of the day psychologists “ rely ” - as did Dr. Flaro, Mr. Rubin suggests - on the WAIS-III psychometric test as the “ best measure of intellectual capacity ” ; that a comment in Dr.

Flaro ’ s report regarding IQ “ is unfounded and also a statement with which I strongly disagree ” ; that P.W. ’ s non-verbal learning disorder may help explain disputed IQ results, amongst other outcomes, that could otherwise be attributed to a significant limitation in intellectual capacity; (e.g., “ … P.W. ’ s performance on the visual memory functioning tests were again reflective of an individual with a nonverbal learning disorder and not due to a significant limitation in intellectual capacity ” ).

[ 21 ] After some five full pages of text spent critiquing Dr. Flaro ’ s report, Mr. Rubin concludes this part of his remarks with the following comment: To complete my discussion surrounding Dr. Flaro ’ s report, I just want to comment that I have personally talked to Dr. Flaro regarding his first recommendation where he says that there is no question that when P.W. reaches 18 years of age, he will meet eligibility criteria for PDD. Dr.

Flaro agreed that it is not his place to determine PDD eligibility but rather he should be recommending that an individual apply for services, then leaving it up to PDD to determine whether the individual meets PDD requirements. [ 22 ] Mr. Rubin ’ s overall conclusion was as follows: In conclusion, I would like to say that we should be recognizing and applauding P.W. ’ s accomplishments and successes rather than minimizing them.

P.W. is a very complex but obviously intelligent young man, who despite a number of impairments, including autism, cerebral palsy, bilateral hearing impairment, nonverbal learning disorder, and executive dysfunction, is still achieving honours in some 30 level courses in High School and has been accepted into University. Quite an accomplishment! In fact, P.W. was accepted into University because he met University entrance requirements based on his high grades in matriculation courses, which nowadays is a major achievement, since getting into University is no small feat.

However, PDD also has entrance requirements, so to speak, and we too are using some of the same evidence that allowed P.W. to be accepted into University. PDD also considers academic achievement in making our decisions, and P.W. ’ s marks are indicative of an individual that has average to high average intelligence, and that is not indicative of an individual with a significant limitation in intellectual capacity. Yes, P.W. does have executive function impairment. However, PDD is not PED or Persons with Executive Dysfunction.

Rather, PDD is for individuals with a developmental disability, and PDD makes eligibility decisions based on the definition of developmental disability as set out in the PDD Community Governance Act which defines developmental disability as a state of functioning that began in childhood and is characterized by a significant limitation in both intellectual capacity and adaptive skills. PDD accepts and acknowledges that P.W. does have autism, and more specifically, high functioning autism, along with executive dysfunction which is expressed by P.W. ’ s impaired adaptive living skills.

However, in no way is this executive dysfunction equivalent to a significant intellectual disability. Quite the opposite, P.W. ’ s results on psychometric testing and his high achievement in school, and his acceptance into University, is indicative of someone with average to above average intellectual capacity, and therefore he should not be eligible to receive services from PDD.

Yes, P.W. may have areas of difficulties, especially in certain areas of adaptive living, but P.W. has illustrated that he has the potential and capacity to have a successful and happy life and he should be recognized for the skills he possesses rather than for the skills he lacks.

Perhaps there needs to be another program or service to provide assistance to individuals with executive dysfunction, or for those who “ fall through the crack ” so to speak, but PDD should not be a program of default and should not be forced to provide services to individuals that clearly do not met our eligibility criteria. [ 23 ] The Panel then proceeded to outline its reasons for decision. [ 24 ] It notes the only issue is whether P.W. meets the criteria of significant limitation in intellectual capacity.

It “ recognizes ” deficits as noted in the neuropsychological and psychological assessments and “ accepts that these results explain [P.W. ’ s] areas of deficit. ” The Panel disagrees however that these deficits equate to a significant limitation in P.W. ’ s intellectual capacity. The core of the Panel ’ s reasons are at paragraphs 83-91 of its decision: 83. The legislation isolates “ a significant limitation in intellectual capacity ” as a mandatory requirement for eligibility.

The panel recognizes that sometimes persons lack intellectual capacity, and at other times they are unable to effectively use the capacity they have. A variety of human problems may limit the ability to use ones [sic] capacity, some of which are covered by the second “ adaptive skills ” criteria. 84. Emotional and mental health concerns may also limit the ability to use ones [sic] innate intellectual capacity.

We find the legislation requires the Panel to examine intellectual capacity itself aside from the other factors that limit its use, except to the extent those factors themselves fall within the term intellectual capacity as used in the legislation. To take a broader view would result in the

inclusion of many individuals who have problems with emotional, social, physical or mental health issues not properly falling within the scope of the full definition of “ developmentally disabled ” . 85. The Panel heard from both sides that there is no reliable and widely accepted standard measure that currently exists to quantify the stated areas of emotional and social deficit. Given that, the Panel cannot reasonably conclude the factors as stated to be sufficiently presented as equivalent to a significant limitation in intellectual capacity. 86.

The key point for the Panel was whether the Appellant has the intellectual capacity or whether his capacity is significantly limited. (emphasis in original) 87. When the panel reviewed the profile of the Appellant they found that the Appellant has the capacity to learn and the evidence did not show that his capacity is significantly impaired or limited. 88. He has shown that, with support he has the intellect and the ability to succeed in school at a very high academic level.

The Panel did consider the remark of the parent that he excels in the area of academics because he obsesses in this area, and the comparison to an individual with Autism who excels at playing the piano. However, the ability to achieve such high grades suggests an advanced ability to access and manipulate basic concepts in new situations and different circumstances, as would be presented to him in test question situations. This ability does not show an individual whose intellectual capacity is significantly limited. 89.

The Panel concluded that of all the material covered in all the subjects in high school, the information is very broad and not specific to one area of obsession. The learning and capacity to learn information in all of the subjects requires a certain level of intellect and to be able to achieve the results in all the subject areas he has, does not reflect someone with a significant intellectual capacity. 90. The Panel agrees with the Community Board that even with a 1:1 aide and special allowances, someone with a significant limitation in their intellectual capacity would not be able to perform at this level. 91.

From the verbal and written evidence presented and the points highlighted above, the Panel finds that the Appellant does not have a significant limitation in intellectual capacity and does not meet the PDD eligibility criteria as set out in the legislation. Events following Panel ’ s decision [ 25 ] The Panel ’ s decision of course became the subject of this judicial review application. Preliminary applications however unfolded regarding the admissibility of certain evidence touching on the record and on issues of administrative law fairness.

In an order of April 16, 2010 Nielsen J. admitted to the record portions of affidavits of G.W. and of Dr. Harrison. The order also entitled the Board to file affidavits in response to the admissible portions of the Appellants ’ affidavits. In turn the Board filed the affidavit of Mr. Rubin sworn June 28, 2010. Mr. Rubin was examined on his affidavit August 26, 2010. All of this evidence was before me, together with Mr.

Rubin ’ s report filed as an addendum to the Applicants ’ brief of argument. [ 26 ] G.W. states in her affidavit that she relied on the appeal secretariat ’ s letter of April 7, 2009 and attached Fact Sheet and prepared for the appeal accordingly. [ 27 ] With regard to Mr. Rubin ’ s presentation before the Panel, G.W. states she was very surprised as Mr. Rubin ’ s evidence unfolded because “ the majority of what he discussed and presented was not specifically referred to in any of the PDD materials filed with the Panel prior to the hearing. There was very little of Mr.

Rubin ’ s presentation that I was in a position to respond to during the hearing. ” Mr. Rubin provided alternate diagnoses such as high functioning autism and nonverbal learning disorder - none of the alternate diagnoses Mr. Rubin offered had been discussed in PDD ’ s decisions and none of them were referred to or supported by the various reports I had submitted. These opinions came as a complete surprise as I had no notice of them. I was not able to respond effectively to these new theories during the hearing.

I was both surprised by what Mr. Rubin had to say and unprepared to respond to it. The vast majority of Mr. Rubin ’ s oral presentation was new information … The Panel did not try to limit PDD to the information it had filed in support of the appeal prior to May 22, 2009. The Panel did not tell me I could object to the new information and I did not know I could ask the panel to ignore it. The Panel did not tell me I had a right to adjourn the hearing to another date if I needed time to respond to the information and I did not know I could ask for an adjournment in the circumstances.

I discussed my concerns with Mr. Rubin ’ s presentation with Dr. Harrison at the break. We were under the impression we had no choice but to proceed with the rest of the hearing … I confirmed that Jeff Rubin sat on the E-group panel that initially decided P.W. ’ s eligibility. I also confirmed that Mr. Rubin had never met P.W. and had never seen P.W. as a patient. [ 28 ] In his affidavit, Dr. Harrison states that like G.W. he was surprised by Mr.

Rubin ’ s evidence: I was very surprised that the Appeal Panel allowed all of this new information to be presented, but as they did not object, I did not feel I could say anything... While I disagreed with all of the new opinions expressed by Mr. Rubin, I had not prepared for the hearing on the basis of those opinions. I had not reviewed these issues or searched for literature that would have supported my view that Mr.

Rubin ’ s opinions in these areas were without merit and unsupported by the research in these areas … the majority of the subject matter of Jeff Rubin ’ s presentation was new to us and we had no real opportunity to consider it and respond. ” [ 29 ] In his own affidavit, Mr. Rubin states that with respect to his notes, they were prepared based on his review of documentation provided to the Board and his review of the written arguments/submissions of the parties. He denies the notes amounted to anything new.

No one asked for production of the notes and no one objected that they thought he was expressing anything “ new ” . He states that neither G.W. nor Dr. Harrison asked for further time or for an adjournment. Neither said they were unprepared to respond or to continue with the hearing. Issues [ 30 ] The following issues must be determined: A. What is the appropriate standard of review? B. Did the Panel interpret the Act in accordance with relevant principles of statutory

interpretation? C. Was fairness compromised by the undisclosed evidence of Mr. Rubin? D. Are the Panel ’ s reasons adequate? E. What remedy should follow a finding against the Panel on any one or more of the grounds set out above? A. What is the appropriate standard of review? [ 31 ] In P.M.M. v. Persons with Developmental Disabilities Edmonton Region Community Board [2009] A.J. No. 1026 (Q.B.) Graesser J. considered the standard of review issue. It is the first and to date only decision on standard of review under the Act . Following a Dunsmuir v. New Brunswick [2008] S.C.C. 9 analysis Graesser J. found the standard of review to be reasonableness.

[32] Dunsmuir states that if “jurisprudence has already determined in a satisfactory manner the degree of deference to beaccorded…” to a particular tribunal, then subsequent courts on judicial review of the same tribunal need not repeat the analysis.Although in the end I agree with the outcome in P.M.M., I would not conclude that it comprises, as one case and not one binding on me,the “jurisprudence” referred in Dunsmuir that yet resolves further standard of review inquiries for the Act in question. (I pause to notethat I have considered Fahlman (Guardian Ad Litem of) v.

Community Living British Columbia 2007 BCCA 15 but like Graesser J. inP.M.M., consider it distinguishable on its facts and given its different legislative regime.) As such I will undertake the balance of theanalysis required by Dunsmuir. I need to consider (

i) the presence or absence of a privative clause; (ii) the purpose of the tribunal; (iii)the nature of the question in issue; and (iv) the expertise of the tribunal. (

i) the presence or absence of a privative clause [33] No one disagrees that the existence of a privative clause in this case signals anything but deference. If it is a “weak” privativeclause, as P.M.M. suggests and as is urged upon me by the Applicants, that is just one factor that informs the Dunsmuir analysis. No onedisagrees that the Dunsmuir analysis is contextual in the sense that some factors will weigh more heavily than others, depending on thenature of the specific case.

That being said, Dunsmuir states that the existence of a privative clause “…gives rise to a strong indicationof review pursuant to the reasonableness standard” (at para. 52, emphasis added).

Arguably therefore even a “weak” privative clause isan important consideration. (ii) the purpose of the tribunal [34] No one disagrees that the purpose of the Panel is to provide individuals with a right of appeal from Board decisions affectingongoing eligibility for services, or new applications for services, suggestive of deference. (iii) the nature of the question in issue [35] Clearly the Panel is interpreting its own statute and on questions that involve mixed law and fact. Such functions point todeference.

Such functions are unlike those categories which attract a correctness standard: constitutional issues; questions of general lawof central importance to the legal system as a whole and outside the Panel’s area of expertise; or jurisdictional questions: Smith v.Alliance Pipeline Ltd. 2011 SCC 7 , [2011] S.C.J. No. 7. (iv) the expertise of the tribunal [36] There is more in dispute regarding the issue of expertise.

The Applicants argue that unlike P.M.M., where there was anadmission with regard to the issue of expertise, here there is virtually no evidence of expertise, nothing other than an enclosure to thematerials submitted by counsel for the Panel, and described as “Ad Copy” for appeal panel members. I agree the ad copy is of littlevalue. At best it is little more than an invitation “seeking applications from community-minded people who demonstrate knowledge ofthe needs of persons with developmental disabilities …” It is more a wish than a requirement.

Assuming it was ever published, it waslikely at some point close in time to the advertised “closing date” of April 26, 2011. That would have been nearly two years after theappeal in question. The ad copy says nothing about appeal panel member qualifications around the time of P.W.’s hearing. [37] At the end of the day there is little evidence of actual expertise in the Panel. On its face that may tilt the standard away fromdeference.

However, I am also taking into account the comment in Dunsmuir and more recently repeated in Khosa that “A policy ofdeference ‘recognizes the reality that, in many instances, those working day to day in the implementation of frequently complexadministrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of thelegislative regime.’” (per Binnie J. in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 25, emphasis added).

Despite little actual evidence of expertise in the make-up of the Panel generally, I find that in the legislative regime in question there is areasonable expectation that the Panel has or will develop an expertise. To a similar effect: Macdonell v. Quebec (Commission d’accessa l’information) 2002 SCC 71 , [2002] 3 S.C.R. 661, referred to me by counsel for the Panel. On these authorities and for thereasons stated I find the issue of expertise in the Panel under the Act in question supports a finding of deference.

[38] Having considered the Dunsmuir factors together I conclude the appropriate standard of review is reasonableness. B. Did the Panel interpret the Act in accordance with relevant principles of statutory

interpretation? [39] The issue is framed in part as whether the Panel failed to give the Act an appropriately broad and liberal

interpretation.Granted, the Panel did reject the Applicants’ suggested “broader view” of the definition of intellectual capacity. I would not find thatoutcome necessarily out of keeping with the Panel’s duty to interpret the Act broadly and generously. As argued by counsel for theBoard, the Panel is entitled reasonably to interpret the legislation even if that means certain individuals with significant shortcomings areexcluded from services. [40] I also agree that P.M.M. was a different case.

It faulted the Panel for requiring evidence of “overall intellectual capacity” asdistinct from looking for evidence to satisfy the test of whether there was a limitation in intellectual capacity that was significant. I amunable to conclude the P.W. Panel fell into a similar or analogous error. [41] That being said, I hesitate to say more on this ground for review. Owing to faults I have found with the fairness of thehearing, I have real doubts around just how to interpret the reasons given by the Panel.

In this vacuum, it is unwise to speculate whethera Panel, engaged in a fair process and giving adequate reasons after making supportable findings of mixed fact and law, could notreasonably deny P.W. services on the basis of insufficient evidence of significant limitation in intellectual capacity. C. Was fairness compromised by the undisclosed evidence of Mr. Rubin? [42] This issue, together with the issue of the adequacy of reasons, is at the core of this judicial review application. There is nodisagreement that issues of procedural fairness are dealt with on a correctness standard: Ironside v.

Alberta (Securities Commission)2009 ABCA 134 although it is not correctness strictly in the Dunsmuir sense but rather based on “...whether the proceedings met thelevel of fairness required by law”: Hennig v. Institute of Chartered Accountants of Alberta (Complaints Inquiry Committee) 2008ABCA 241 at para. 12. [43] All agree the starting point in the search for the required standard of procedural fairness is Baker v. Canada (Minister ofCitizenship and Immigration) (SCC), [1999] S.C.J.

No. 39. [44] No one disagrees that a duty of fairness to the Applicants exists, given that the Panel’s decision affects P.W.’s “the rights,privileges or interests”. What follows then is a consideration of the Baker factors of (

i) the nature of the decision being made and theprocess followed in making it; (ii) the nature of the statutory scheme; (iii) the importance of the decision to the individual affected; (iv)the legitimate expectations of the person challenging the decision; and (

v) the procedures adopted by the agency itself. (

i) the nature of the decision being made and the process followed in making it [45] Counsel for the Board relies on the informality of the process employed by the Panel, including that witnesses are not sworn,there are no rules around examination in chief/cross examination, the proceedings are not recorded.

On the issue of disclosure counselpoints in particular to the comment regarding “…share additional comments and information” from the appeal secretariat’s April 14,2009 letter, suggesting again a certain informality and openness in the Panel’s process. [46] On the other hand, as noted above the Panel’s own procedures are more fully set out in its Fact Sheet, which importantlystipulates the parties’ obligation to submit information prior to the hearing. The Fact Sheet is silent with regard to “additional commentsand information”.

In this case, the Panel enforced its own procedure by requiring the parties to supply information on certain deadlines.The “additional comments and information” comment then has to be read alongside other indications that information was to bedisclosed in compliance with these deadlines. In fairness, any additional comments and information should arise only from thosedisclosed materials.

[ 47 ] While granted there are aspects of the Panel ’ s process that are informal, I would not find that its disclosure requirements are one of those aspects.

As such, I would find the Panel ’ s own process overall attracts at least a moderate duty of fairness. (ii) the nature of the statutory scheme [ 48 ] Counsel for the Board acknowledges that the finality of the Panel ’ s decision-making power points toward a high level of fairness. (iii) the importance of the decision to the individual affected [ 49 ] Again, counsel for the Board acknowledges this part of the test points toward a high level of fairness. (iv) the legitimate expectations of the person challenging the decision [ 50 ] Counsel for the Board again relies on the April 14, 2009 letter and informal aspects of the process generally.

Counsel suggest that a party could not have “ many reasonable expectations ” in the Panel ’ s process. Of course this turns back to the important process issue of disclosure and my findings in that regard. I would therefore find that the Panel ’ s own process created legitimate and reasonable expectations particularly with regard to the issue of disclosure, and speaks overall in favour of at least a moderate level of fairness. (

v) the procedures adopted by the agency itself [ 51 ] Undoubtedly the Panel has the right to choose its own procedures.

Those procedures, including disclosure requirements properly understood, overall speak to a moderate level of fairness. [ 52 ] Overall, the Baker analysis leads me to conclude that a firmly moderate level of fairness is appropriate for the Panel. [ 53 ] I find that duty of fairness was breached by the Panel, for the following reasons. [ 54 ] The Applicants were entitled to rely on the appeal secretariat ’ s Fact Sheet together with the direction following the Panel ’ s adjournment that further information was to be submitted by a certain date.

As suggested above, in the context of those directives the Applicants were entitled to conclude that the phrase “ additional comments and information ” could only reasonably mean comments and information arising from already-provided materials. [ 55 ] That brings squarely into focus Mr. Rubin ’ s presentation. Did it contain new facts and opinions? If so, did they reasonably catch the Applicants off guard? Counsel for the Board submits there was really nothing new in Mr. Rubin ’ s submission, and in any event the Applicants did not complain or seek any immediate relief. I would find otherwise.

Much was new, and the Applicants should not be faulted for their lack of a response at being taken by surprise. [ 56 ] I have taken pains to set out in detail the evidence of the Board ’ s psychologist both as summarized and interpreted by the Panel and as laid out in Mr. Rubin ’ s report. I have then compared that evidence with what the Board disclosed before the hearing in compliance with the Panel ’ s own procedures. On that careful review of the record, there is no merit to the assertion that nothing new arose, particularly in Mr. Rubin ’ s report. Before Mr.

Rubin ’ s appearance, the Board produced no more than a few short paragraphs in

writing explaining its position regarding P.W. ’ s eligibility: see paragraph 3 in these Reasons. By comparison, Mr. Rubin ’ s report is 11 typed, single-spaced pages. It is clearly the result of careful and detailed analysis. It is nothing less than an all-out critique of the other reports properly in evidence before the Panel. [ 57 ] A good part of Mr. Rubin ’ s report deals with the key issue of P.W. ’ s academic achievements. Granted, all knew that issue was ‘ on the table ’ . But the facts, including the reference to course descriptions, and the categorical and unrelenting opinions expressed by Mr.

Rubin on this issue (see paragraphs 14-15 and 18-19 of these Reasons) are nowhere to be found in the Board ’ s earlier brief identification of the issue. What ’ s more, those earlier expressions - while being some evidence of the Board ’ s position - are not evidence of the validity of its position in the sense of expert opinion evidence capable of being weighed by the Panel as against the detailed expert opinion evidence brought to the hearing by the Applicants. [ 58 ] In contrast, I find that Mr.

Rubin ’ s report was such expert opinion evidence capable of being weighed as against the evidence of the Applicants ’ experts. The fact is that before Mr. Rubin ’ s emergence as a witness, the Board had little or no expert opinion evidence to advance in support of its denials of eligibility, or to go up against the considerable expert evidence of the Applicants. [ 59 ] It is possible to make too much of the fact the Panel described Mr. Rubin merely as a “ witness ” whereas Dr. Harrison is described as an “ expert ” . For what it is worth, in his own

summary of qualifications Mr. Rubin states he “ represent[s] PDD Edmonton Community Board as an expert witness at dispute hearings in determining eligibility. ” Examined on his affidavit, he states that “ Usually [the Panel] ask me to respond and to be the expert witness on PDD … ” In the case on review, the Panel had to have accepted Mr. Rubin as an expert capable of giving opinion evidence. If otherwise, the Panel could not have preferred Mr. Rubin ’ s evidence over that of the Applicants ’ experts. Paragraphs 88-90 of the Panel ’ s reasons (at paragraph 24 herein) leave no doubt that the Panel accepted Mr.

Rubin ’ s evidence, for example, on the academic achievement issue. [ 60 ] Moving past the academic achievement issue, there was quite clearly new evidence and opinions before the Panel in the form of Mr. Rubin ’ s critique, particularly of Dr. Flaro ’ s neuropsychological report. In page after page of his report Mr. Rubin purports to rebut Dr. Flaro ’ s opinions, imputing to him a certain view of the WAIS-III, calling one aspect of his report “ unfounded ” , and most remarkably, citing a post-report conversation with Dr. Flaro in which according to Mr. Rubin, Dr.

Flaro acknowledged “ it was not his place ” to reach certain conclusions. Dr. Flaro was not present before the Panel and was obviously unable to respond, either personally or through a further report submitted by the Applicants, to Mr. Rubin ’ s new assertions. [ 61 ] Mr. Rubin also expressed opinions with regard to diagnoses of high-functioning autism and nonverbal learning disorder.

And while the suggestion was made these diagnoses could be found in the reports of the Applicants ’ experts, a close review of those reports leaves room for doubt on this point, and thus opens the door further for criticism that even further new opinions were introduced before the Panel. [ 62 ] Counsel for the Board argues these last objections are moot in that the Panel failed to mention high-functioning autism or nonverbal learning disorder in its reasons. The Board ’ s argument on this point however provides little comfort to the Applicants.

And it fails before me if only on the basis that on the reasons provided, it is impossible to tell what influenced the Panel to reach the conclusions it did. Arguably the objected-to diagnoses could have influenced the Panel in reaching its decision. Likewise, evidence contrary to those diagnoses could have influenced the Panel in reaching a different decision. As with his evidence of academic achievement, Mr.

Rubin ’ s evidence on these points should not have been before the Panel in the absence of the Applicants ’ reasonable opportunity to respond to it. [ 63 ] It was argued before me that the Applicants failed to object to Mr. Rubin ’ s evidence. They failed to ask for a lengthier break or indeed for an adjournment of the hearing. As such, they cannot now be heard to object to the process that unfolded. [ 64 ] The evidence of G.W. and of Dr. Harrison is set out above on these points and I accept it.

The Applicants and their expert were caught by surprise by what I have found was significant new evidence on behalf of the Board admitted before the Panel in breach of its own rules of disclosure. In these circumstances the Applicants should not have to bear the consequences of an imperfect reaction to an unfair process. This is not a ‘ close call ’ wherein I must balance the Applicants ’ failure to object on the one hand against the admission of relatively minor new evidence not likely to significantly affect the outcome of the hearing.

The new evidence was substantial and quite clearly had an impact on the Panel. [ 65 ] Before turning to the next issue, it is necessary to pause to examine Mr. Rubin ’ s role before the Panel. I was struck by an

aspect of his critique of Dr. Flaro, that ‘ it was not Dr. Flaro ’ s place ’ to say that unquestionably P.W. will meet PDD eligibility requirements. Mr. Rubin went on to insist that such a conclusion is the PDD ’ s to make. That may well be so. Yet throughout his own evidence Mr. Rubin asserts, though in the negative, the very conclusion he says Dr. Flaro cannot reach: that unquestionably P.W. fails to meet PDD eligibility requirements. The difference appears to be that while Dr. Flaro is an independent expert before the Panel, Mr.

Rubin purports to be both an expert and a member of a PDD committee which decided P.W. ’ s ineligibility. As noted, Mr. Rubin told the Panel one of his “ major responsibilities ” is to determine PDD eligibility. And in P.W. ’ s case, he was part of the eligibility committee ’ s decision that led to the final May 29, 2009 denial. [ 66 ] It is troubling, frankly, that Mr. Rubin appeared before the Panel on the one hand as a decision-maker of P.W. ’ s ineligibility, on the other as the PDD ’ s sole expert witness, giving evidence and indeed strenuously advocating that the

interpretation of “ our eligibility criteria ” should be sustained by the Panel (see for example paragraph 22 of these Reasons). The issue is not one of qualifications but rather of the obligations of an expert witness. These obligations are set out in “ The Ikarian Reefer ” [1993] 2 Lloyd ’ s Reports 68, a case cited with approval by this court and other Canadian courts. Of particular relevance are the first two duties and responsibilities mentioned: (citations omitted): 1.

Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. 2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness in the High Court should never assume the role of an advocate. [ 67 ] How to reconcile Mr. Rubin ’ s duties as a PDD adjudicator and advocate, with his obligations as an expert witness? It is not for me to say.

The point, though raised briefly, was not argued in depth before me. I am prepared therefore only to identify an issue. Adequacy of Reasons [ 68 ] The Applicants ’ final objection is to the adequacy of the Panel ’ s reasons for decision. They object the reasons fail to make findings as between the respective experts, fail to explain “ why ” , or to show a “ path ” to how certain conclusions were reached. Citing particularly Lor-al Springs Ltd. v.

Ponoka (County) Subdivision and Development Appeal Board 2000 ABCA 299 , the Applicants fault the Panel for failing to make findings of fact where contradictory evidence exists on key points. [ 69 ] Counsel for the Board agrees an appropriate test for adequate reasons is whether they show a justifiable, intelligible and transparent reasoning path to the Panel ’ s conclusion.

Counsel argues however that the Panel ’ s reasons meet that test. [ 70 ] Counsel for the Board, supported in her submissions by counsel for the Panel itself, argues that adequacy of reasons does not require the Panel to comment on every detail of a party ’ s position or evidence.

Reasons should also be read in context: while they must tell the parties why a decision was made, provide public accountability, and permit effective appellate review, context requires that they be read mindful of the evidence led before the Panel, the issues raised and the arguments advanced by the parties. [ 71 ] I have also noted Binnie J. ’ s comment for the majority in Khosa , wherein he notes the Dunsmuir position that deference “ … requires of the courts “ not submission but a respectful attention to the reasons offered or which could be offered in support of a decision ” (emphasis in original).

Binnie J. then goes on to say “ … I do not think the reference to reasons ‘ which could be offered ’ (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada . ” Put another way, “ If the tribunal ’ s reasons do not mention an important topic at all, it is a good reason to presume that the tribunal never thought about whether the reasons should deal with that topic ” : Spinks v.

Alberta (Law Enforcement Review Board) 2011 ABCA 162 (para. 18 ). [ 72 ] With these submissions and principles in mind, I have misgivings about the reasons given by the Panel in this case, the core of which are reproduced at paragraph 24 herein.

[ 73 ] Of course it is clear what the Panel decided, and seemingly clear why : as best I can tell the Panel reasoned that P.W. was ineligible for PDD services because he failed to meet the definition of significant limitation in intellectual capacity. Why? Because the Panel concluded that lacking intellectual capacity may be different from lacking the ability to effectively use the capacity an individual has.

Because ‘ limiting factors ’ such as emotional and mental health concerns do not count toward a finding of significant limitation of intellectual capacity “ except to the extent those factors themselves fall within the term intellectual capacity as used in the legislation ” . Because after hearing from “ both sides ” that emotional and social deficits cannot reliably be quantified, the Panel was unable to conclude those factors are equivalent to a significant limitation in intellectual capacity.

And because the Panel found P.W. had the capacity to learn, and “ the evidence ” did not show that capacity was significantly impaired or limited. Key in this regard was reference repeatedly to P.W. ’ s academic achievement. [ 74 ] In all of that, however, the Panel undertook virtually no analysis of the competing expert opinion evidence before it. In the absence of a transcript of the proceedings - a factor which speaks in favour of more, not less extensive reasons - ironically it is Mr. Rubin ’ s report that helps prove the extent of the conflicting evidence.

Clearly the Panel accepted the opinion evidence of Mr. Rubin. But the Panel failed to say why it preferred his evidence over the extensive competing expert evidence of the Applicants ’ experts, on key points such as the very nature and basis of P.W. ’ s intellectual capacity, and of course on the significance of P.W. ’ s academic achievement. No, the Panel did not have to comment on every detail of the Applicants ’ evidence. But something needed to be said why the Applicants ’ experts were rejected.

These shortcomings in the Panel ’ s reasons are of particular concern when, as noted, concerns existed or should have existed around Mr. Rubin ’ s new opinion evidence, if not his objectivity as an expert witness. [ 75 ] What ’ s more, as noted, the Panel earlier in its reasons only vaguely summarized the case of the Applicants.

The Panel ’ s approach in that regard frustrates any attempt to understand, in the context of the proceedings as a whole, its appreciation of the evidence. [ 76 ] These basic defects in the Panel ’ s reasons go to the core of the requirements that reasons be justifiable and, particularly here, intelligible and transparent, capable of providing public accountability and permitting effective appellate review. I am persuaded that the reasons are inadequate and thus contribute to the finding that procedural fairness was not met in this case.

Conclusion [ 77 ] On grounds of a lack of fairness the Panel ’ s decision of July 7, 2009 is quashed. The Applicants are entitled to a new hearing. [ 78 ] I decline the Applicants ’ invitation to make any declaration regarding P.W. ’ s entitlement to services. [ 79 ] If necessary, costs may be spoken to. Heard on the 29 th day of April, 2011. Dated at the City of Edmonton, Alberta this 20 th day of October, 2011. Peter Michalyshyn J.C.Q.B.A.

Appearances: Janet Hutchison Chamberlain Hutchinson for the Applicants Teresa Meadows Miller Thomson LLP for the Respondent, Appeal Panel Shelley MacDonald Justice and Attorney General of Alberta for the Respondent, Edmonton Region Community Board