J.W. v. Alberta (Victims of Crime Programs Committee), 2013 ABQB 212

Court of Queen ’ s Bench of Alberta Citation: J.W. v. Alberta (Victims of Crime Programs Committee), 2013 ABQB 212 Date: 20130408 Docket: 1203 14318 Registry: Edmonton Between: J.W. Applicant - and - Victims of Crime Financial Benefits Program Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Thomas W. Wakeling _______________________________________________________ I.

Introduction [ 1 ] The Director of the Victims of Crime Financial Benefits Program ( “ Director ” ), exercising authority vested in him under s. 13(1) of the Victims of Crime Act , R.S.A. 2000, c. V-3 ( “ Victims of Crime Act ” ), determined that J.W. was entitled to financial benefits of $3000. He did so after refusing to exercise his discretion in favour of J.W. under s. 8(5) of the Victims of Crime Regulation , Alta. Reg. 63/2004 ( “ Victims of Crime Regulation ” ) and send J.W. to a psychiatrist or a psychologist for a diagnosis of his psychological injuries.

J.W. cannot afford to retain a psychologist or psychiatrist. The letter disclosing the Director ’ s refusal to send J.W. for a psychological assessment stated that “ it is not the policy or practice of the Director ’ s office to send victims for independent assessments to determine the extent of their injuries or to obtain a diagnosis ” . [ 2 ] J.W. applied to the Criminal Injuries Review Board ( “ Review Board ” ) for a review of the Director ’ s decision to award him

only $3000 for this psychological injuries. He also filed an originating application alleging that the Director had improperly fettered his discretion. He sought orders setting aside the Director ’ s decision refusing to send J.W. for a psychological assessment and requiring the Director “ to obtain a psychological assessment for the applicant and all other applicants that require a psychological assessment to quantify their compensation ” . II. Questions Presented [ 3 ] Did the Director fail to assess J.W. ’ s request that he be sent for a psychological assessment on its merits?

Is the Director ’ s decision the product of a rigid policy or practice? [ 4 ] If the Director ’ s decision was the product of a rigid policy or practice, is this decision unlawful? [ 5 ] If so, does the right J.W. has under the Victims of Crime Act to apply to the Review Board for a review of the Director ’ s decision constitute an adequate remedy and justify this Court declining to issue any remedial orders? III. Brief Answers [ 6 ] The Director did not assess J.W. ’ s case on its merits, as the Victims of Crime Regulation required him to do.

His decision was dictated by an inflexible and rigid “ policy or practice ” . As such, it was not made in accordance with s. 8(5) of the Victims of Crime Regulation and is unlawful. [ 7 ] The Victims of Crime Act provides J.W. with an adequate remedy for the unlawful conduct of the Director. Indeed, it provides a better remedy than this Court can. The best this Court can do for J.W. is to order the Director to consider J.W. ’ s request on its merits and in a manner consistent with legal principles governing the exercise of a discretion.

It is conceivable that the Director may, on reconsideration, validly refuse to send J.W. to a psychiatrist or a psychologist for a psychological assessment. The Review Board, on the other hand, more likely than not, will pay for a psychological assessment for J.W. and return the file, including the new psychological assessment, to the Director for a fresh assessment of his entitlement to a financial benefit.

The Director will then, if the psychological assessment confirms that J.W. suffers the psychological injuries he suspects he has, award him a much larger sum. [ 8 ] This will happen within a time frame and cost parameters that are reasonable. IV. Relevant Statutory Provisions [ 9 ] Parts of ss. 2, 13, 13.1, 14, 14.01 and 14.1 of the Victims of Crime Act are as follows: 2(1) The following principles apply to the treatment of victims: (

a) victims should be treated with courtesy, compassion and respect; ... (

d) victims should promptly receive in accordance with this Act and the Regulations, financial benefits for the injuries that they have suffered; 13(1) On receipt of an application for financial benefits, the Director must determine, in accordance with this Act and the regulations, whether a person is eligible under

section 12 for financial benefits and, if so, the amounts of the financial benefits, if any.

(2) Subject to the regulations, for the purpose of determining whether a person is eligible under

section 12 for financial benefits or the amounts of financial benefits, the Director may (

a) require the applicant to provide information respecting how the injuries were acquired and describing the injuries suffered by the victim, and (

b) receive in evidence any statement, document, information or matter that, in the opinion of the Director, may assist in dealing with the application, whether or not the statement, document, information or matter would be admissible as evidence in a court of law. 13.1(1) The Director is authorized to collect information, including personal information that the Director reasonably believes is necessary, for the purpose of determining whether a person is eligible for financial benefits or a death benefit under this Act or determining the amounts of those financial benefits or the amount of that death benefit.

(2) The Director is authorized for the purposes of subsection (1) to collect and use information, including personal information, from ... (

b) a person who provided diagnostic, treatment or care or other similar medical services to the victim ... . 14(1) Within 30 days of receiving a copy of the Director ’ s decision under

section 15.1, a person may apply to the Review Board in writing for a review of a decision of the Director made under

section 13 ... . 14.01(4) The Review Board, after reviewing the application, the evidence considered by the Director and the Director ’ s notes, decision and reasons for the decision and all submissions made by the applicant and the Director, may ... (

d) confirm the determination of the Director or vary the determination of the Director as to the amounts of financial benefits or the amount of the death benefit determined in accordance with the regulations by increasing or decreasing the amounts to be paid.

(5) If the Review Board rescinds a decision of the Director under subsection (4), the Review Board must refer the matter back to the Director for reconsideration and must notify the applicant and the Director of the Review Board ’ s decision.

(6) Subject to

section 14.1, a decision of the Review Board under subsection (4) is final.

(7) If, at any stage of the review process, the Review Board determines new material information exists, the Review Board must refer the matter back to the Director for reconsideration of the Director's decision in respect of the new material information. 14.1(1) The Director or the applicant may appeal a decision of the Review Board to the Court of Appeal only on a question of jurisdiction or on a question of law. [ 10 ] The key parts of the Victims of Crime Regulation are as follows:

8(5) Where a victim suffers an injury, whether or not the injury is listed in

Schedule 3, the Director may send the victim to a physician, dentist or other health professional selected by the Director to diagnose the injury.

(6) Where a victim suffers an injury that is not listed in

Schedule 3, the Director may seek the advice of any physician, dentist or other health professional in order to determine the relative severity of the injury.

Schedule 3 Injury

Schedule General Principles ... 2. The following principles are to be applied with respect to making a determination under this Schedule: (

a) all injuries must be verified and be a direct result of the offence committed against the victim and verified by a medical professional with the qualifications appropriate to the injury; ... . 3. The severity of an injury is to be determined using the following table: ... Psychological ...

Generalized anxiety disorder ... ... Post traumatic stress disorder, (GAF 61 and higher) Post traumatic stress disorder, (GAF 50 or less) Post traumatic stress disorder, (GAF 51 or 60) ...

Reactive depression, (GAF 61 and higher) Reactive depression, (GAF 50 or less) Reactive depression, (GAF 51 to 60) Traumatic psychological injury, (GAF 51 to 60) Traumatic psychological injury, (GAF 50 or less) 8.671 8.671 56.445 36.460 8.671 56.445 36.460 56.445 56.445 * Psychological injuries with a severity of 25 or higher require a diagnosis by a psychiatrist or chartered psychologist. * GAF is the Global Assessment of Functioning as described in the Diagnostic and Statistical Manual ... which defines ... (

a) GAF 61 or higher - some mild symptoms (e.g. depressed mood and mild insomnia) OR [sic] some difficulty in social occupational or school functioning ... but generally functioning pretty well ... . (

b) GAF 51 to 60 - moderate symptoms ... OR [sic] moderate difficulty in social, occupational or school functioning... . (

c) GAF 50 or less - at best, serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) OR [sic] any serious impairment in social , occupational or school functioning (e.g. no friends, unable to keep a job) .... .

Schedule 4 Financial Benefits Awards Awards Severity Range Amount ...

8.500 to 11.999 1500 ... 50.000 to 56.999 16 000 ... 150.000 to 169.999 80 000 170.000 to 189.999 90 000 V. Statement of Facts A. J.W. Applies for Financial Benefits [ 11 ] On March 14, 2011, J.W. submitted an application to the Director for financial benefits under the Victims of Crime Act . He claimed in his application that he believes he suffers from “ traumatic psychological injury, reactive depression and post-traumatic stress disorder ” as a result of sexual and physical abuse he suffered when he was twelve or thirteen years old residing in a group home.

He reported that “ I have suicidal ideation and serious impairment in my social, occupational and school functioning ” . [ 12 ] If, in fact, J.W. suffered from these psychological injuries, he may have been entitled to a large financial benefit award.

Schedule 3 of the Victims of Crime Regulation classifies psychological injuries of the kind J.W. alleges he may have as serious and provides a substantial financial benefits award. [ 13 ] In response to a November 3, 2011 letter from the Executive Director of the Victims of Crime Benefits Program to Mr. Lee, J.W. ’ s counsel, listing the documents the Director intended to review, Mr. Lee, in a December 8, 2011 letter, asked the Director “ to send J.W. for a psychological assessment to further address his injuries ” and to allow up to $1500 for this purpose. Mr.

Lee stated in his letter that “ [i]n the past the Criminal Injuries Review Board has regularly authorized payment for assessments of $1500 for other applicants, with historical sexual abuse injuries ” . [ 14 ] Mr. Lee made this request because

Schedule 3 of the Victims of Crime Regulation stipulates that no award can be made for the most serious levels of traumatic psychological injury or reactive depression without the diagnosis of a psychiatrist or chartered psychologist. [ 15 ] After the Director acknowledged in a March 28, 2012 letter to Mr. Lee that s. 8 of the Victims of Crime Regulation authorized the Director to accede to Mr. Lee ’ s request, he unequivocally stated that “ it is not the policy or practice of the Director ’ s office to send victims for independent assessments to determine the extent of their injuries or to obtain a diagnosis ” .

The Director acknowledged that there was one exception to this “ policy or practice ” . It did not apply “ in circumstances where the information provided provides conflicting or contradictory information where clarification cannot be obtained by other means and the adjudicator is not able to make a reasonable determination of an appropriate

Schedule 3 injury ” . [ 16 ] In the same letter the Director explained why the exception did not benefit J.W.: “ J.W. ’ s physician indicated he had not treated him for psychological injuries. The absence of treatment information is not conflicting or contradictory ” . [ 17 ] Mr. Lee repeated his request that the Director “ send J.W. for a psychological assessment to determine the severity of his

[ 17 ] Mr. Lee repeated his request that the Director “ send J.W. for a psychological assessment to determine the severity of his injuries ” in an April 25, 2012 letter to the Victims of Crime Financial Benefits Program. He argued that J.W. “ needs a psychological assessment to assess the severity of his injuries ” . [ 18 ] The Director, in a July 3, 2012 letter to J.W., informed J.W. that he “ met the eligibility requirement for a financial benefit ” and awarded him $3000 - $1500 for “ generalized anxiety disorder ” and $1500 for “ reactive depression ” . These are the sums

Schedule 4 of the Victims of Crime Regulation allots for these psychological injuries. B. Administrative Structure Under the Victims of Crime Act [ 19 ] The Victims of Crime Act assigns important inquisitorial and adjudicative responsibilities to the Director and the Review Board. [ 20 ] The Director must evaluate “ applications for and . . . [make] decisions respecting eligibility for financial benefits, ” Victims of Crime Act, s. 3(2)(c).

Norms governing the steps the Director must take to determine whether a person is injured as a direct result of a criminal act and to quantify benefits payable are recorded in the Victims of Crime Act and the Victims of Crime Regulation . Generally, the Director must review the information the applicant provides describing his or her injuries and the acts alleged to have caused the injuries. Victims of Crime Act, s. 13(2). As well, the Director may supplement the information the applicant supplies by collecting information from police services and health care providers. Victims of Crime Act , s. 13.1(1).

This is the inquisitorial dimension of the Director ’ s jurisdiction. [ 21 ] In order to appreciate the true significance of the inquisitorial role the Director plays, one must review the application form the Director requires an applicant to complete. [ 22 ] The application form states that the Victims of Crime Act authorizes the Director “ to collect the information necessary to determine eligibility for financial benefits ” and gives the applicant the opportunity to authorize various persons who may have relevant information about the applicant to release it to the Director.

Part of the application form reads as follows: I hereby authorize: . . . (

b) any health care provider to disclose diagnostic, treatment and care information relating to the incident identified in this application, to the Director of the Victims of Crime Financial Benefits Program ... . [ 23 ] The inquisitorial nature of the Director ’ s function is emphasized in s. 6 of the application form: I understand 1. the Director of the Victims of Crime Financial Benefits Program ... will make a decision on my application based on information obtained from police services and health care providers, 2. the Director will request information only from the police services and/or health care providers considered necessary to reach a decision on my application.

The Director may or may not contact all the parties identified or may contact other police services or health care providers not identified in my application, ...

4. I may be subject to an independent medical examination as the Director of the Victims of Crime Financial Benefits Program ... may require in assessing this application. [ 24 ] I suspect that the Director, in practice, relies heavily on his inquisitorial powers. Most applicants probably do not have in their possession documents recording their medical history or involvement with police services. If the Director does not assume responsibility for collecting the relevant information, he will not have access to it.

J.W. ’ s case illustrates this. [ 25 ] After the Director has compiled the relevant information he must determine if the applicant is a victim and eligible for financial benefits and the amount of financial benefits. Victims of Crime Act , s. 13.1(1). [ 26 ]

Schedule 3 to the Victims of Crime Regulation compels the Director to verify the nature of the injuries the applicant has suffered and whether they are “ a direct result of the offence committed against the [applicant] ” . To ascertain the nature of the injuries, the Director must rely on the opinion of a “ medical professional with the qualifications appropriate to the injury ” . Victims of Crime Regulation ,

Schedule 3, s. 2(a). The Director may not conclude that an applicant has a severe psychological injury without “ a diagnosis by a psychiatrist or chartered psychologist ” . Victims of Crime Regulation ,

Schedule 3. The psychological injuries J.W. suspected he has qualify as a severe psychological injury for which the Director cannot award compensation unless diagnosed by a psychiatrist or chartered psychologist. [ 27 ]

Schedule 4 to the Victims of Crime Regulation correlates the severity range of the applicant ’ s injuries and the financial benefit to which the applicant is entitled. The more severe the injury, the greater the financial benefits. [ 28 ] The Director must communicate his determination to the applicant in writing. Victims of Crime Act , s. 15.1. [ 29 ] An applicant who is aggrieved by the Director ’ s decision “ may apply to the Review Board in writing for a review of a decision of the Director ” regarding eligibility for a benefit or the amount of the benefit. Victims of Crime Act , s. 14(1).

A Review Board panel will examine the material the Director considered, oral and written submissions from the applicant and the Director, if any, and settle on a disposition allowed by the Victims of Crime Act. Victims of Crime Act, s. 14.01(4). [ 30 ] The remedial powers of the Review Board are potent but not plenary. If the Director concluded that the injuries an applicant suffered were not as a result of a designated criminal act, the Review Board may “ rescind or confirm a decision ... respecting the eligibility of the applicant to receive financial benefits ” . Victims of Crime Act , s. 14.01(4)(b).

If the Director awarded an applicant adjudged to be a victim a sum the applicant regarded as inadequate, the Review Board may “ confirm the determination ... or vary the determination ... as to the amounts of financial benefits ... in accordance with the regulations by increasing or decreasing the amount to be paid ” . Victims of Crime Act , s. 14.01(4)(d).

If the Director dismissed the application on the ground that the applicant did not “ fully co- operate with any investigation into the events that resulted in the injury ” or did not provide required information, the Review Board “ may... rescind or confirm a decision of the Director ” . Victims of Crime Act , s. 14.01(4)(c). [ 31 ] While the Victims of Crime Act allows the Review Board to confirm or vary a Director ’ s decision on the amount of the financial benefits, it does not bestow an original jurisdiction on the Review Board to select the appropriate amount.

Accordingly, if the Review Board concludes that an applicant is eligible for a financial benefit and rescinds the Director ’ s decision that an applicant is not eligible for a financial benefit, the Review Board may not take the next step and determine the appropriate award. Victims of Crime Act , s. 14.01(5). The Review Board must send the matter back to the Director so that he may make the initial assessment. Director v. Criminal Injuries Review Board , No. 0803 11714 (Alta. Q.B.

December 3, 2008). [ 32 ] Also of interest is the direction in s. 14.01(7) of the Victims of Crime Act that “ [i]f, at any stage of the review process, the Review Board determines new material information exists, the Review Board must refer the matter back to the Director for reconsideration... . ” [ 33 ] The Review Board ’ s decision is final, unless the Director or applicant invokes s. 14.1 of the Victims of Crime Act and appeals a decision of the Review Board to the Court of Appeal.

C. Role of the Court of Appeal [34] The Victims of Crime Act assigns an appellate jurisdiction to the Court of Appeal.

Section 14.1(1) of the Victims of Crime Actallows the applicant or the Director to appeal “on a question of jurisdiction or on a question of law”. See P.A.L. v. Alberta CriminalInjuries Board, 2012 ABCA 177 (the Court of Appeal set aside as unreasonable the Review Board’s “conclusion that a benefit should bepaid for one injury only”). VI. Analysis A. The Director Did Not Assess J.W.’s Request To Be Sent for a Psychological Examination on Its Merits [35] A statutory delegate who has a discretion to make a decision must consider the merits of the applicant’s case. An individualassessment is mandated.

The statutory delegate cannot ignore this legislative direction and allow a rigid, arbitrary and inflexible policy todictate the result. A statutory delegate who fails to make a merit-based decision disregards the will of the legislature and acts unlawfully.Maple Lodge Farms v. Canada, (SCC), [1982] 2 S.C.R. 2, 6 (“The discretion is given by Statute and the formulationand adoption of general policy guidelines cannot confine it”); M.S. v.

Crimes Compensation Board, 1998 ABCA 138, ¶ 5 (“as a matter oflaw a tribunal which exercises a statutory discretion may not fetter the exercise of that discretion by the adoption of an inflexible policy”); W. Wade & C. Forsyth, Administrative Law 324 (9th ed. 2004) (“An authority can fail to give its mind to a case and thus fail toexercise its discretion lawfully, by blindly following a policy laid down in advance”) & D.

Jones & A. de Villars, Principles of Administrative Law 198 (5th ed. 2009) (“the existence of discretion implies the absence of a rule dictating the result in each case”). [36] The indisputable obligation administrative law principles impose on a statutory delegate who must exercise her discretion toassess each case on its merits does not deprive institutions of the right to craft policies and practices. These documents have a legitimaterole to play in sophisticated statutory structures which encounter the same issues frequently. [37] The law and common sense are not strangers.

A statutory delegate may announce that a discernible pattern emerges from areview of prior responses to predictable problems. Chalifoux v. Driftpile First Nation, 2002 FCA 521, ¶ 27 (Canada Labour Codeadjudicators’s statement that he had never granted a specific remedy was characterized as a historic record and not a commitment toabide by a rigid and inflexible doctrine). As well, administrators may publish the results of internal assessments of the relativeimportance of competing interests in predictable fact patterns. Maple Lodge Farms Ltd. v.

Canada, (SCC), [1982] 2 S.C.R. 2, 6-7 (“there is nothing improper or unlawful for the Minister charged with ... administration of the general scheme provided for inthe Act and Regulations to formulate and state general requirements for the granting of import permits”). [38] There is value in encouraging statutory delegates to notify persons whose interests may be affected by the exercise of anadministrator’s discretion of the likely disposition of any application under the legislative regime.

The publication of reliable informationby a statutory delegate reduces the likelihood meritless applications which deplete the resources of both the applicant and the delegateand increase the time needed to assess credible requests will clog the system. British Oxygen Co. v. Board of Trade, [1971] A.C. 610,631 (H.L. 1970) (“It was both reasonable and right that the Board should make known to those interested the policy it was going tofollow.

By doing so, fruitless applications involving expense and expenditure of time might be avoided”). [39] I am satisfied that the Director declined to send J.W. for a psychological assessment because of his “policy or practice” not“to send victims for independent assessments to determine the extent of their injuries or to obtain a diagnosis.” He did not review thefacts set out in J.W.’s application and the information he had collected and assess the merits of J.W.’s request. The Director failed toassess J.W.’s request to be sent for a psychological examination on its merits.

This conclusion strips the Director’s decision to refuse tosend J.W. for a psychological assessment of its lawful nature. Nastrani v. Canada, (FC), 148 F.T. R. 117 (Tr. Div.1998) (immigration officer acted unlawfully in stating that she would never exercise her discretion in favour of an applicant on welfare)& The King v. Stepney Corp., [1902] 1 K.B. 317 (K.B. Div. 1901)(the local authority wrongfully determined the compensation due thetown clerk on the abolition of his office by invoking Treasury practice and not exercising its discretion based on an individualizedassessment).

[ 40 ] Two reasons lead me to this determination. [ 41 ] First, the Director said he rejected J.W. ’ s request because of his “ policy or procedure. ” This is my

interpretation of the Director ’ s March 28, 2012 letter, part of which reads as follows: “ Further to your request that the Director send [J.W.] ... for a psychological assessment, it is not the policy or practice of the Director ’ s office to send victims for independent assessments to determine the extent of their injuries or to obtain a diagnosis ” [emphasis added]. This is an unequivocal statement. Nothing could be clearer.

The Director has declared that he does not send a victim to a health care professional for a diagnosis. [ 42 ] Admittedly, other passages in the Director ’ s March 28, 2012 letter reveal that the Director ’ s “ policy or practice ” may not be as rigid and inflexible as the previously quoted sentence would suggest: Sections 8(5) and (6) of the Regulation give the Director the authority to send the victim to an independent health professional to diagnose an injury.

However, this will only be considered in circumstances where the information provided provides conflicting or contradictory information where clarification cannot be obtained by the other means and the adjudicator is not able to make a reasonable determination of an appropriate

Schedule 3 injury. (emphasis added) [ 43 ] This passage confirms that the Director takes the position that it is up to the victim to present expert evidence of his psychological injuries if he did not seek the assistance of a psychologist or a psychiatrist before he submitted an application to the Director. [ 44 ] The exception to the Director ’ s “ policy or practice ” not to send a victim for a diagnosis of his psychological state may assist those victims who were well enough to realize that they need psychological help and who have sought professional assistance from a number of health care professionals.

Regrettably, this exception provides no relief for victims who demonstrate the symptoms of serious psychological harm but may have been too ill to appreciate the full extent of their injuries and, for this or other compelling reasons, failed to seek professional assistance. The limited nature of this exception to the “ policy or practice ” underlines the need for the Director to approach each case with an open mind and base his decision on the merits of the case. [ 45 ] J.W. explained in his application why he did not ask health care professionals for help before he submitted his application: 10.

I have always been embarrassed about what happened to me as a child. I didn ’ t want anyone to find out because I felt people would make fun of me. Still to this day, I have difficulties talking about the abuse and feel that people would laugh at me. ... 18. It has been difficult for me to start seeing counsellors. I have issues trusting people in general, particularly psychologists or counsellors. ... 22. I became involves in alcohol and drugs to try to escape the pain caused by thinking about what happened to me.

From the age of 18-38, I would drink daily in attempts to numb myself of the constant memories of the abuse. [ 46 ] Second, there is nothing in the Victims of Crime Act or the Victims of Crime Regulation which suggests that victims who claim symptoms of serious psychological injuries and who have not previously utilized the services of a psychologist or psychiatrist, for a plausible reason, should be denied the substantial benefit associated with a psychological assessment by a qualified expert. Indeed, the

statement of principles in s. 2 of the Victims of Crime Act suggests a much more compassionate orientation is appropriate: 2(1) The following principles apply to the treatment of victims: (

a) victims should be treated with courtesy, compassion and respect; ... (

d) victims should promptly receive, in accordance with this Act and the Regulations, financial benefits for the injuries that theyhave suffered. [47] These statutory provisions support the conclusion that it is unlikely the Director would have dismissed J.W.’s request had heconsidered the merits of J.W.’s case and the governing law. Maple Lodge Farms Ltd. v. Canada, (SCC), [1982] 2 S.C.R.2, 7-8. If any group of victims should be sent for a psychological assessment, surely it is the one to which J.W. belongs.

The members of this group claim symptoms of serious psychological injuries attributable to criminal acts perpetrated by a known criminal and havepresented a plausible explanation for the failure to seek the intervention of a psychologist or psychiatrist in the past. Their failure to seekhelp for their psychological injuries may be consistent with their claim that they have a serious psychological injury. Canada Safeway Ltd. v.

United Food and Commercial Workers Union, (AB GAA), 26 L.A.C. 4th 409, 434-35 (Wakeling 1992) (“itdoes not make a lot of sense to judge a person who experiences disordered thoughts by the standard of a reasonable person.”) [48] The unreasonableness of the Director’s decision supports the conclusion that the “policy or practice” and not an assessmentof J.W.’s case on its merits must have accounted for the Director’s decision. British Oxygen Co. v.

Minister of Technology, [1971] A.C.610, 624 (H.L. 1970) (the exercise of discretion “must not be so unreasonably exercised as to show that there cannot have been any realor genuine exercise of discretion”) & The Queen v. North West Lancashire Health Authority, [2000] 1 W.L.R. 977, 993, 999 & 1003(C.A. 1999) (a health authority’s decision to deny applicants funding for gender reassignment surgery was based on an indefensiblepolicy). That the Review Board has frequently taken steps which result in the preparation of a psychological assessment for victims likeJ.W. supports this assertion. E.I. v.

Criminal Injuries Review Board, 2009 ABCA 303, ¶ 20. [49] Given the concordance between the Director’s decision, which I have characterized as unreasonable, and his “policy orpractice”, it follows that I have severe reservations about the lawfulness of his “policy or practice”. The Queen v. North West LancashireHealth Authority, [2000] 1 W.L.R. 977 (C.A. 1999) (appeal court upheld judgment quashing health authority’s policy which effectivelydenied medical treatment for persons suffering from transsexualism because the policy was based on the premises that transsexualism isnot an illness).

The Director may wish to revisit his suspect policy. [50] My determination that the Director has acted unlawfully requires a consideration of the remedy this Court may grant toredress the wrong. B.

This Court May Not Order the Director To Send J.W. for a Psychological Assessment [51] J.W., in his originating application, seeks orders setting aside the Director’s decision to refuse to send him for apsychological assessment and requiring the Director “to obtain a psychological assessment for the applicant and all other applicants thatrequire a psychological assessment to quantify their compensation”. [52] The Court, in this application, cannot grant all these remedies.

It can declare that the Director’s decision to refuse to send J.W.to a health care professional failed to comply with the conditions which qualify the exercise of his statutory duties. But it cannot orderthe Director to send J.W. to a health care professional to diagnose his injury. This initial assessment the Victims of Crime Act makes theresponsibility of the Director. A determination that a decision was unlawful does not mean that the statutory delegate must make thedecision which advances the interests of the applicant.

[53] Sometimes a declaration that a decision is unlawful provides the applicant complete relief. This is so if the unlawful decisiondeprives the applicant of something valuable, such as a driver’s licence or a broadcast licence. In Lloyd v. Superintendent of Insurance, (BC CA), 20 D.L.R. (3d) 181, 188-89 (1971), the British Columbia Court of Appeal quashed the Superintendent ofMotor Vehicles’ decision to suspend Lloyd’s driver’s licence. It was the product of a rigid policy which unlawfully ignored thediscretionary nature of the decision.

Once the decision to suspend Lloyd’s licence lost its force, the appellant’s driver’s licence recoveredits value. It was again a valid driver’s licence. [54] On other occasions a declaration that a decision has no legal force provides incomplete and unsatisfactory relief for theapplicant. This will be the case if the applicant requires from the statutory delegate something of value. The King v. London CountyCouncil, [1918] 1 K.B. 68 (1917) illustrates this. A member of the National League of the Blind asked the London County Council forpermission to sell pamphlets in parks under its control.

The Council withheld permission on the ground that it no longer allowed anyoneto sell books in the parks. This inflexible policy contravened the statutory framework which granted the Council a discretion to allowsuch sales. Regrettably, the National League of the Blind needed more than a declaration that the Council’s decision was unlawful beforeit could start distributing its literature in city parks. It needed Council’s permission to sell pamphlets in London parks.

Justice Avory wasalive to the limited value of the remedy the court had just granted: “I doubt whether the [mandamus] rule will be of any service to the ...[National League of the Blind], the Council will probably refuse to give ... its permission after hearing the request].” [1918] 1 K.B. 68,74 (1917). [55] To summarize, the most this Court can do now to assist J.W. is order the Director to review on its merits and in accordancewith the proper principles J.W.’s request that he be sent to a psychologist or a psychiatrist for a psychological assessment. C.

A Superior Court May Decline To Grant a Judicial Review Remedy if the Legislative Regime Provides an Adequate Remedy [56] A superior court may decline to grant a judicial review remedy, if satisfied the legislative regime may provide an adequateremedy. Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, 588; Canadian Pacific Ltd. v. Matsqui IndianBand, (SCC), [1995] 1 S.C.R. 3, 29-31, 64 & 79-80; Auditor General of Canada v. Minister of Energy, Mines andResources, (SCC), [1989] 2 S.C.R. 49, 93-94 & Merchant v. Law Society of Alberta, 2008 ABCA 363 , 303 D.L.R. 4th 351, 353 (Alta.

C.A. 2008). “Adequate”, in this context, means “satisfactory”. Webster’s Third New International Dictionaryof the English Language Unabridged (1971). It does not need to be the best remedy. Canadian Pacific Ltd. v. Matsqui Indian Band,[1995] 1 S.C.R. 3, 38. This is so whether judicial review is conducted under the umbrella of a prerogative writ proceedings or an action seeking declaratory or other equitable relief. D. Jones & A. de Villars, Principles of Administrative Law 621 (5th ed. 2009); Campbell,“Judicial Review and Appeals as Alternative Remedies”, 9 Monash L.

Rev. 14, 14 (1982) & Glynn v Keele University, [1971] 1 W.L.R.487, 496 (Ch. 1970). [57] The underlying principle justifying judicial restraint may be simply stated. The legislature chose to assign primaryresponsibility for decision making to a statutory delegate and not a superior court. Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, 595 (the legislature wants the university to resolve its own disputes internally) & Buckley v.

Entz Estate, 2007 ABCA 7 , 277 D.L.R. 4th 1, 9 (Alta C.A. 2007) (“the courts generally insist on the exhaustion of administrative remedies,in order to avoid undermining the administrative appeal structure”). It is not the court’s role to make the decisions needed to implementthe legislative agenda. Courts should respect legislative will and acknowledge the autonomy of the legislative regime. Harelkin v.University of Regina, [1979] 2 S.C.R. 561, 596 (“[The courts should ] exercise their discretion in such a way as to implement the generalintent of the Legislature”) & Far Eastern Conference v.

United States, 342 U.S. 570, 574 (1952) (“in cases raising issues of fact notwithin the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congressfor regulating the subject matter should not be passed over”). The legislature did not envision the judiciary intervening so long as it was“possible for the ... [administration] to correct its errors with its own institutional means.” Harelkin v. University of Regina, [1997] 2S.C.R. 561, 595. See also Curda v.

Institute of Chartered Accountants of Alberta, 2008 ABQB 443 , 451 A.R. 300, 307 (Q.B.2008)(“This [legislative] purpose is promoted by having the Institute, rather than the courts, make decisions regarding complaintsconcerning its members”) & Montgomery v.

Edmonton Police Service, 1999 ABQB 913 , 253 A.R. 222, 242 (Q.B. 1999) (thelegislature intended that there be minimal judicial interference in the [police] disciplinary process”). [58] There are also practical considerations which warrant a cautious approach to judicial review. [59] A reluctance on the part of the court to rush in like a fire brigade reduces the risk that internal review mechanisms created bythe legislature cannot be accessed in a timely manner. Delay is seldom desirable. It denies the parties and the public of the earliestpossible resolution of the issues the legislation was designed to resolve.

Kristel Homes Ltd. v. City of Edmonton, 2003 ABCA 182

, 339 A.R. 188, 191 (C.A 2003) (judicial review of safety officer’s decision may delay enforcement of safety codes.) [60] Judicial intervention may deprive the administrative process of the capacity to correct errors made by the initial decisionmakers through the utilization of internal review mechanisms. McCarthy v. Madigan, 503 U.S. 140, 145 (1992) (“commonsense[supports the assertion] ... that an agency ought to have the opportunity to correct its own mistakes with respect to the programs itadministers before it is haled into federal court”); K. Wehan, Principles of Administrative Law 296 (2008) & K.

Warren, Administrative Law in the Political System 388 (2011 5th ed.) [61] Not inconsequential is the danger that judicial proceedings may drive up the costs needed to ultimately resolve the dispute.Judicial forays are seldom easy on the treasury. [62] There are cases where prompt judicial intervention is warranted despite the fact a legislative structure contains additional anduntapped hearing processes. Judicial resolution is desirable if it will avoid unnecessary expense brought on by a long hearing and ajudicial solution is inevitable after the internal processes have been exhausted. Ward v.

Keenan, 70 A. 2d 77, 82 (N.J. Sup. Ct. 1949)(“when the jurisdiction of the statutory tribunal was questioned on persuasive grounds a writ of certiorari might be allowed thechallenging party in advance of the hearing before the statutory tribunal for the obvious reason if the question of jurisdiction wereresolved against the statutory tribunal the parties would be spared the vexation of a useless hearing”). See also Workers’ CompensationBoard v.

Figiola, 2011 SCC 52 , [2011] 3 S.C.R. 422, 450 (the majority declined to send the matter back to the statutorydelegate because the result was “inevitable” and the exercise would “wast[e] the parties’ time and resources”). There is little to be gainedby allowing an administrator to proceed if it is obvious there is no statutory basis authorizing the inquiry. Bell v. Ontario Human Rights ,[1971] 1 S.C.R. 756 (human rights tribunal prohibited from forcing a landlord who clearly was not subject to its jurisdiction to endure its hearing process) & PepsiCo Inc. v.

Federal Trade Commission, 472 F. 2d 179, 187 (2nd Cir.1972).(“if an agency refuses to dismiss aproceeding that is plainly beyond its jurisdiction as a matter of law, [the court will act to prevent] the enormous waste of governmentalresources”). [63] Judicial assistance is also legitimate if the outcome of the administrative proceedings turns on a question of law the answer towhich is readily apparent. The Queen v. Tottenham and District Rent Tribunal, Ex p.

Northfield (Highgates) Ltd., [1957] 1 Q.B. 103, 107(“where one gets a perfectly simple, short and neat question of law ... it seems to me that it is quite convenient .... to come here forprohibition”). [64] In these cases, there is a legitimate reason to override the autonomy value promoted by judicial restraint. This is notinconsistent with the need to respect legislative will. Legislators are practical people and they did not pass laws which direct judges toignore values which in some circumstances outweigh the benefits of administrative autonomy. Kwan v.

Victoria Legal Aid, [2007] VSC122, ¶ 31 (Parliamentary expectations are not thwarted just because an internal review mechanism is not taken up”). D. To Determine Whether the Legislative Regime Provides an Adequate Remedy a Court Must Consider All Aspects of theLegislative Regime [65] A legislative regime provides an adequate remedy if it has the capacity to correct the errors of an initial decision maker orameliorate the adverse effects of an unlawful decision within a reasonable period of time and for a reasonable cost. Harelkin v.University of Regina, (SCC), [1979] 2 S.C.R. 561, 592 & Canadian Pacific Ltd. v.

Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3, 31. [66] In order to determine whether this capacity exists, attention must be given to all aspects of the legislative regime. Harelkin v.University of Regina, (SCC), [1979] 2 S.C.R. 561, 588; Canadian Pacific Ltd. v. Matsqui Indian Band, (SCC), [1995] 1 S.C.R. 3, 31 & Curda v. Institute of Chartered Accountants, 2008 ABQB 443 , 451 A.R. 300, 307 (Q.B. 2008).Asking the following questions is helpful. [67] First, what is the nature of the error committed by the initial decision maker?

Did the initial decision maker misconstrue thefacts, misunderstand the law, misapply the law to the facts or fail to abide by due process? These are important inquiries because thenature of the error affects the traits subsequent decision makers must have to increase the likelihood the necessary correction will bemade. An adjudicator called upon to consider difficult legal issues will not inspire confidence if she is without a law degree. One will

probably have a higher level of confidence that an institutional structure has the capacity to correct an identified error if a subsequentdecision maker has the skill set needed to appreciate that an error has been made and to identify a satisfactory solution. The nature of theerror may also influence one’s perception of the adequacy of the review process.

A complaint that a decision maker failed to hear theapplicant could be readily dealt with by a review process that incorporated a de novo hearing. [68] Second, does the statute direct that a subsequent decision maker must have specific skills or professional qualifications? Forexample, the presence of a doctor on a panel of adjudicators may appreciably reduce the risk that a suspect medical decision will survivethe review process. [69] Third, does the review process contain features which ensure that the subsequent decision maker will have access to all theinformation it needs to make an informed decision?

Is the delegate entitled to see all the material that was before the initial decisionmaker? A mechanism which denies adjudicators access to relevant information raises red flags. The Queen v. Spalding, (BC CA), [1955] 5 D.L.R. 374 (B.C.C.A.) (The court discounted the value of an appeal against a deportation order because the Ministermay not have the relevant facts before him). [70] Fourth, does the statutory structure offer timely decision making? Generally speaking, an expeditious resolution is desirable.Are there time lines which diminish the value of the internal process for the applicant?

Will exhaustion of internal remedies beprohibitively expensive? A statutory process which requires too much time or money to navigate is at risk that it will be adjudgedinadequate. Troublesome delays may be the result of a number of conditions, including an imbalance between high caseload and a smallcadre of adjudicators or restrictions on a subsequent adjudicator’s jurisdiction and the need to send a file back for reconsideration. [71] Fifth, does the detected error enjoy any immunity from review because of the structure of the legislative scheme?

This mightarise if the review process consisted of a paper review and placed the applicant at a disadvantage – perhaps fact finding was in theexclusive domain of an initial decision maker. [72] Sixth, does a subsequent adjudicator have access to a toolbox with the tools needed to do the job? If a subsequent decisionmaker cannot reverse the suspect decision or take steps which ameliorate the consequences of the incorrect decision, the regime may notpass the adequacy test. Campbell, “Judicial Review and Appeals as Alternate Remedies”, 9 Monash U.L.

Rev. 14, 24 (1982)(“it ispossible that...[a delegate’s] jurisdiction is confined in such a way that it cannot ... make a decision on the application for judicialreview”). If the decision making structure allows internal adjudicators to effectively correct any errors the initial decision maker mayhave made, the regime is probably vigorous enough to survive review.

A legislative regime consisting of multiple decision makers withvaried jurisdiction and carefully constructed review mechanisms most likely will be adjudged to have the capacity to self-correct. [73] Seventh, how does the remedy the legislative regime may produce compare to the corrective action the court may take? Ifthe legislative regime produces a result which is at least as effective as that a court may fashion, there is good reason for the court toretreat.

If the judicial tool box allows the court to effect a better fix at less cost and in less time, there is little reason to conclude that thelegislature would frown on a judicial intervention. [74] Eighth, does the statute reveal an unmistakable desire on the part of the legislature to create a structure which has the capacityto self-correct? Surely, if the creators of the structure were satisfied the review process built into the system was adequate, a court shouldbe reluctant to disagree.

This desire can be ascertained by evaluating the sophistication of the structure, including the existence of ahierarchy of decision makers, the qualities of the decision makers and remedial authority of those at the apex of the structure. [75] The majority judgment of the Supreme Court of Canada in Harelkin v.

University of Regina, (SCC), [1979] 2S.C.R. 561 addressed these queries after concluding that the second university decision maker had visited a wrong upon a student bydenying him the right to participate in the hearing and failing to inform him of the reason why the Faculty of Social Work required himto discontinue his studies.

All seven judges agreed that the second statutory delegate, the university council committee, failed to abide byits statutory duty to hear the student. [1979] 2 S.C.R. 561, 567 & 598. [76] This finding obliged the majority to consider the capacity of the third statutory delegate, a senate committee, to redress thisprocedural wrong. Justice Beetz, the author of the majority opinion, said this: “[I]t is clear that the senate was required to hear appellant,as was the council ... .”

[77] The majority was keenly aware of the makeup of the third decision maker and the nature of the information that would bebefore it: As to the contention that differences in membership between the senate committee [the third decision maker] and the council committee[the second decision maker] should result in a difference in approach to the issue, it does not in my view carry great weight. Appellantcould not expect the members of either committee themselves to read and re-mark his examination papers.

This could not be part of theirfunction and they would be unable to do so, the members of the council committee because they would in the main be academics ofdifferent disciplines, and the members of the senate committee, because they would be students and lay members.

Assuming also thatacademic expertise would be useful or necessary to decide the case, there would have been no lack of such expertise in a university and itwould have been equally available to the senate committee and to the council committee, in the form of expert testimony. (SCC), [1979] 2 S.C.R. 561, 591-92. [78] Justice Beetz recognized that “expeditiousness and costs” were also “relevant factors”: If the appellant had ...[opted] to settle his difficulties with the mechanisms which existed within before going to an outside body, hewould have saved a great deal of time and money. ...

He has now gone before three Courts. Three years after the event, the merits of hiscase remain undetermined from an academic point of view. ...[A]ll of the appellant’s difficulties could have been resolved fairly, within areasonable time and at little cost to himself and to the university had he simply wanted to use all the remedies put at his disposal by theAct. (SCC), [1979] 2 S.C.R. 561, 592-93. See also [1997] 2 S.C.R. 561, 593 & 595. [79] The inquiry also focuses on the tools in the remedial tool box.

Justice Beetz paid careful attention to this point: [T]here is no reason to doubt that such powers [of the senate appeals committee] comprise the ordinary power of an appellate jurisdictionincluding, if the appeal be allowed, the power to set aside the decision of the council committee and render on the merits the decisionthat the council committee should have rendered or send it back before the council committee for a proper hearing. (SCC), [1979] 2 S.C.R. 561, 589-90. [80] The majority bore in mind the nature of the remedies which the court and the senate committee may implement.

Itappreciated that neither body could order the University of Regina to reinstate Harelkin as a student.

But it concluded that the internaluniversity appeal structure offered better prospects of a more expedited final resolution than resort to the courts: It is therefore possible that if the appellant was successful in this Court and the council committee refused him permission to berepresented by counsel, appellant would, instead of going before the senate committee, again apply for certiorari and mandamus withconsequential appeal and that a few more years and considerably more money would be lost before a final determination of this casecould even be considered. (SCC), [1979] 2 S.C.R. 561, 592-93. [81] Justice Beetz also reinforced the importance of legislative intent, the final query: “[The appeal provisions] are in my viewinspired by the general intent of the Legislature that intestine grievances preferably be resolved internally by the means provided by theAct, the university thus being given the chance to correct its own errors, consonantly with the traditional autonomy of universities.” (SCC), [1979] 2 S.C.R. 561, 595.

E. The Victims of Crime Act Provides an Adequate Remedy [82] The Victims of Crime Act does more than provide an adequate remedy for J.W. It provides a better remedy than this Court cangrant. [83] What can the Review Board do to ameliorate the adverse effects of the Director’s unlawful decision? What is the ReviewBoard likely to do? [84] Until September 30, 2011, the Review Board could order a victim “to undergo a medical examination by a physician namedor approved by the Review Board”.

The Victims of Crime Amendment Act, 2011, S.A. 2011, c. 15, s.16 (“Victims of Crime AmendmentAct”) removed this power from the Review Board. [85] This legislative abridgment of the Review Board’s power to order a victim to submit to a medical examination did noteviscerate the Review Board’s remedial arsenal. The Review Board still retained valuable powers. Mr. Lee informed the Court that theReview Board had frequently made available to victims up to $1500 for psychological reports.

He produced 2008, 2010 and 2012decisions and letters from the Review Board which confirmed that the Review Board has provided $1500 to a victim to cover all or someof the costs of a psychological report. The Review Board’s jurisdiction to do this probably rests on its power to incur costs to carry out“[its] duties under the Act”. Victims of Crime Act, s. 10(b). See also E.I. v.

Criminal Injuries Review Board, 2009 ABCA 309,¶ 20(“counsel for the respondent provided information in the Board’s factum that, as a matter of policy, the Board has decided that it will ...cover all costs in the case of ... a referral [to a psychiatrist or a psychologist”]. [86] The length of the period during which the Review Board has followed this protocol, the start and end dates of which precedeand follow October 1, 2011, the date the Victims of Crime Amendment Act came into force, supports my conclusion that, during thecourse of its review of J.W.’s case, it is more likely than not that the Review Board will provide the same financial support to J.W. that ithas to other victims.

There is no doubt in my mind that Mr.

Lee will ask the Review Board to extend to J.W. the same consideration ithas to other clients of his. [87] The production of a psychological assessment for J.W. will trigger s. 14.01(7) of the Victims of Crime Act, a provisionintroduced by s. 16 of the Victims of Crime Amendment Act: “If, at any stage of the review process, the Review Board determines newmaterial information exists, the Review Board must refer the matter back to the Director for reconsideration of the Director's decision inrespect of the new material information.” [88] The psychological assessment will constitute “new material” information.

The combined effect of the Review Board’sgenerous and helpful protocol of offering $1500 to help a victim prove the full extent of his or her psychological injuries and s. 14.01(7)of the Victims of Crime Act is the presentation to the Director of the psychological report paid for by the Review Board. Thepsychological report, assuming it confirms that J.W. suffers from the psychological injuries he suspects he has, will cause the Director toaward J.W. a substantial financial benefit.

This, to my mind, is a better outcome than a direction from this Court to the Director to basehis decision on whether to send J.W. to a health professional on the merits of the unique set of facts J.W.’s case presents. Campbell,“Judicial Review and Appeals as Alternative Remedies”, 9 Monash U.L.

Rev. 14, 34 (1982)(“A successful application for judicialreview could, after all, result in no more than an order to quash the decision reached in violation of mandatory procedures and aredetermination of the matter by the primary decision maker.”) It is conceivable that on reconsideration the Director may exercise hisdiscretion lawfully and, for reasons not known to me at this time, still decline to order the applicant to submit to a psychologicalassessment by a health care professional of the Director’s choosing. The King v. London County Council, [1918] 1 K.B. 68, 74 (1917);Harelkin v.

University of Regina, (SCC), [1979] 2 S.C.R. 561, (a determination that a decision of a university committeeupholding a Faculty of Social Work direction that a student must discontinue his studies was unlawful did not allow the student tocontinue his studies); The Queen v. North West Lancashire health Authority, [2000] 1 W.L.R. 977, 994-95 (C.A. 1999) (the appeal courtquashed the health authority’s decision not to fund sexual reassignment surgery but it did not direct the authority to fund the surgery theapplicants requested) & Chalifoux v.

Driftpile First Nation, 2002 FCA 521 (adjudicator’s confirmation of original decision upheld onjudicial review). [89] There is no reason to harbour any concerns about the capacity of the members of the Review Board to adequately identifythose victims for whom a psychological examination is desirable. One member of the board must be a physician. Victims of Crime Acts,

s. 7(2). In any event, the need to send a victim for a professional assessment is probably obvious in many cases. Canada Safeway Ltd. v. United Food and Commercial Workers Union, (AB GAA), 26 L.A.C. 4th 409, 434 (Wakeling 1992). (“an observerneed not be a psychologist or a psychiatrist to realize that ... [the grievor] was probably mentally disabled. A motorist need not be amechanic to conclude that his or her car would benefit from a tune-up when it repeatedly stalls in traffic.

Some things are so obvious thatone does need to be an expert to figure them out”). [90] Nor does the review procedure prevent a thorough consideration of the material before the Director. The Review Board hasaccess to “all evidence considered by the Director and the Director’s notes, decision and reasons for the decision”. Victims of CrimeActs, s. 14.(3). If it wishes, the Review Board may invite written and oral submission from the Director and the applicant. Victims ofCrime Acts, s. 14.01. [91] According to Mr. Lee, it generally takes six to eight months for the Review Board to discharge its function.

This time periodis not unduly long, taking into account the fact that J.W. was sexually assaulted in 1983 or 1984, as well as other facts.

I understand thatadditional time will be absorbed because the Review Board does not have the original jurisdiction to assess the amount of a financialbenefit due a victim and must send the file back to the Director for reconsideration. [92] A six to eight month time period to review J.W.’s case and send it back to the Director for reconsideration of thepsychological assessment does not fare badly when compared to the roughly ten months which separate the date of the Director’sdecision refusing to send J.W. for a psychological assessment and the date this Court filed its judgment.

Not only can the Review Boardturn the file around faster, but it can return it to the Director with a new psychological assessment, something this Court cannot do. Evenif the period the review Board needed to review J.W.’s file was considerably longer, this would not negate the considerable benefitrepresented by the production of the psychological report. [93] And how do the costs associated with an applicant exhausting the review structure embedded in the Victims of Crime Actscompare with those of a judicial review?

I am sure that the costs associated with a judicial review application far exceed those incurredby an application to the Review Board for a review of the Director’s decision. The applicant and respondent in a judicial reviewproceeding must prepare briefs and make oral submissions. This is an onerous obligation which results in the expenditure of significanttime and the accumulation of substantial legal fees.

The likelihood that the cost incurred in preparing oral and written submissions for theReview Board approaches those linked to an appearance before this Court is low. [94] A determination that J.W. must avail himself of the review procedure carefully designed by the Legislative Assembly ofAlberta for the benefit of an applicant comports with the intention of legislature to give the Review Board and the Director an importantrole in the process. VII.

Conclusion [95] The judicial review application is dismissed. [96] Given the determination that the Director improperly fettered his discretion and gave J.W. reason to seek judicial review,there will be no costs order against J.W. [97] I commend counsel for their assistance and courteous deportment. Heard on February 20, 2013. Dated at the City of Edmonton, Alberta on April 8, 2013.

Thomas W. Wakeling J.C.Q.B.A. Appearances: Robert Lee for the Applicant Doreen Mueller for the Respondent