Alberta (Director of Assured Income for the Severely Handicapped) v. B.G.A., 2013 ABQB 232

Court of Queen ’ s Bench of Alberta Citation: Alberta (Director of Assured Income for the Severely Handicapped) v. B.G.A. , 2013 ABQB 232 Date: 20130417 Docket: 1209 00145 Registry: Peace River Between: Executive Director, Delivery Services, Assured Income for the Severely Handicapped Program, as Responsible for the Administration of the Assured Income for the Severely Handicapped Act Applicant - and - B.G.A. 1 st Respondent - and - The Assured Income for the Severely Handicapped Citizens Appeal Panel (The AISH Appeal Panel) 2 nd Respondent

Restriction on Publication: Identification Ban – No one may disclose any information about the personal record of a person or a spouse of a person who has applied for or has received a handicap benefit, that has come into existence through anything done under the Assured Income for the Severely Handicapped Act , SA 2006, c A-45.1. Personal information under this Act is confidential. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Introduction [ 1 ] B.G.A. (Mr. A.) applied for Assured Income for the Severely Handicapped (AISH benefits) to the Executive Director, Delivery Services for AISH (Director). The Director found that Mr. A. did not have a severe handicap and denied his application for AISH benefits. Mr. A. appealed the finding to the Assured Income for the Severely Handicapped Citizens Appeal Panel (Appeal Panel).

The Appeal Panel reversed the Director ’ s decision. [ 2 ] The Director seeks judicial review and requests that the Appeal Panel ’ s decision (Decision) be set aside and remitted to another Appeal Panel for rehearing. Facts [ 3 ] Mr. A. made two applications for AISH benefits due to osteomyelitis (a non-healing wound) on his right leg. The Director denied the first application on January 8, 2009, on the basis that the medical information did not support a finding that Mr.

A. had a severe handicap within the meaning of the legislation. [ 4 ] Cherisse Wetzel, AISH Administrator, set out the reasons for the denial in a letter dated January 8, 2009, stating in part: .... Your application has been denied because you do not fully meet the requirements of the AISH Act and Regulation. .............. Your application has been denied for the following reason(s):

Dr. Van Netton filled out the AISH Medical report on October 29, 2008. He wrote that you have osteomyelitis, a non-healing wound, on your right leg. He indicated that this condition caused no degree of impairment. There is still treatment available that is expected to improve your condition. You told Ashley Lacey, the AISH Worker that you would be having surgery in January 2009. Dr. Van Netton commented that you are not as careful looking after your leg when you are drinking alcohol. He wrote that you have a history of alcohol abuse and could benefit [from] attending a treatment program.

You told Ashley that you have been to rehab [programs] twice, but the last one was back in 1991. You also told Ashley that you are interested in going back to school. You may want to discuss this in greater detail with your Band Income Support Worker. You do not qualify for AISH because there are still treatments available (surgery for your leg) and rehabilitative measures (alcohol treatment programs) that could improve your health. Improved health should in turn allow you to participate in training or employment programs or to enter the workforce.

You can reapply for AISH benefits in the future if there is a significant change in your medical condition or new information becomes available. You have the right to appeal this decision. To obtain clarification of the appeal process or to obtain an appeal form, please contact the AISH Worker. If you decide to appeal, you must do so in writing within thirty- (30) days from the date you receive this letter ... [ 5 ] Mr. A. did not appeal the January 8, 2009 decision, however he made a second application for AISH benefits on August 16, 2010. [ 6 ] On August 5, 2011, Ms. Wetzel advised Mr.

A. by letter that his second application for AISH eligibility was also denied, stating in part: Your first application for AlSH was denied on January 8/2009. You had the same medical condition (osteomyelitis) and were undergoing treatment. Your new application for the Assured Income for the Severely Handicapped (AISH) program has been reviewed. This letter is to inform you that your application has been denied because you do not fully meet the requirements of the AISH Act and Regulation. ....... You submitted copies of hospital reports from St. Theresa General Hospital in Fort Vermilion.

These reports indicated that from February 11, 2011 to April 28, 2011 you spent time in the Fort Vermilion hospital and also the Grande Prairie Queen Elizabeth II (QE II) Hospital. You were given antibiotic treatments in Fort Vermilion. In Grande Prairie you had debridement of your leg wound and then a bone graft operation. Your package did not contain any of the hospital reports (admission, operative or discharge) from the QE II. It did not contain any assessments, reports or follow-up exams from your Orthopedic Surgeon, Dr. Wessels.

Details about the outcome of your bone graft surgery were not provided. It is not known what your expected recovery period might be; or if there are any other options for treatment available (for example, other surgeries). Dr. Verdoorn [sic] filled out the AISH Medical report on March 18, 2011. It is not known if this was before or after your bone graft surgery. Dr. Verdoorn did indicate that amputation might have to be considered as a treatment option. He suggested a re-evaluation of your medical status after you had been seen by Dr. Wessels. According to a St.

Theresa Discharge Report you were sent home on April 28, 2011 and your wound had "healed nicely except for a small puncture hole". Without more information from your specialist the AISH Department cannot determine if your medical condition will continue to cause severe limitations to your ability to function and to earn a livelihood. It is recognized that you will have limitations and restrictions from performing physically active types of work. However, it would appear you may still have the ability to manage some types of work if you had the appropriate education or training.

There may be other non-medical reasons or "social factors" that keep you from taking more training or from being able to get other types of work. Social factors are things such as your current level of education; your age now and how old you would be once training finished, how long you have been out of the workforce, the local job economy or job availability. While we can acknowledge that they impact you, they are not part of the AISH Act definition of a severe handicap. Non-medical (social) factors that affect your ability to earn a livelihood cannot be considered as reasons to make you eligible for AlSH.

You do not qualify for AISH because you did not provide information from your orthopedic surgeon and therefore the effectiveness of your treatment and the possibility of other remedial therapies are not known. You have not explored any options to train for work you could manage. You do not have a severe handicap as it is defined by the AISH program. [ 7 ] Mr. A. appealed the August 5, 2011 decision. The Appeal Panel heard the appeal on February 8, 2012. On February 20, 2012 the Appeal Panel issued its Decision in which it allowed the appeal and directed that Mr.

A. receive AISH benefits retroactive to January 8, 2009, which is the date on which the first application was denied. [ 8 ] The decision of the Appeal Panel provides in part: Findings of Fact : Mr. A. is a 44 year old man living on Reserve at Fox Lake, a remote community east and north of High Level. Mr. A. was been diagnosed with chronic Osteitis/Osteomyelitis of the Right Leg (bone infection). Mr. A. had a bone graft done on his right tibia in April 2011. Mr. A. has been in and out of hospitals - QE II in Grande Prairie and St Theresa's in Ft. Vermillion where he has been treated for the bone infections.

The infections appear to be healed although there is a small hole in the incision where it continues to drain. Mr. A. indicated that he has a great deal of pain and uses a cane to get around. Dr. Verdoven, in his medical report, indicated that Mr. A.'s condition is severe; and the medical condition is likely to be indefinite with

the possibility of amputation of the lower leg. Mr. A. has - maybe - a grade 7 education. Mr. A. has very little work history - worked for a short period of time fighting fires in 1987 but found the job too physically demanding and quit. Mr. A. has a problem with Alcohol and has been to treatment twice with limited success. Reasons for Decision Mr. A. lives in a remote community where the amenities are limited and access to schooling for upgrading is difficult to attain. Mr. A. has lived in this community all of his life and he has family and friends there to assist him with his day to day needs. Mr.

A. is unlikely to be able to work because of his disability. He is also hindered because of his lack of education. The possibility of Mr. A. doing any upgrading or training is very unlikely, partly because of his lack of formal education but mostly because of where he lives. Mr. A. told that Panel that he was not drinking much anymore and would be interested in going to treatment again. Dr. Verdoven indicated in his report of January 2011 that Mr. A.'s condition is severe. He also indicated that Mr. A. prognosis is not promising. He has continuing infections, and a great deal of pain all of the time.

Should the infections continue he will probably have to have his leg amputated. The panel, in reviewing all of the information, and talking to both Ms. Smith and Mr. A., find that Mr. A. should be receiving AISH benefits commencing on January 8, 2009 when he was initially denied benefits. [ 9 ] The Director commenced payment of monthly AISH benefits pursuant to the Appeal Panel's Decision, but has sought and obtained two stays of enforcement regarding the lump sum back payment of benefits pending the judicial review hearing.

Legislation [ 10 ] The entitlement to AISH benefits is governed by Assured Income for the Severely Handicapped Act , SA 2006, c A-45.1 ( AISH Act ), the Applications and Appeals (Ministerial) Regulation, Alta Reg 89/2007 ( AISH Regulation ) and the Assured Income for the Severely Handicapped General Regulation , Alta Reg 91/2007 ( General Regulation ).

The Government also publishes a Policy Manual. [ 11 ] The relevant portions of the AISH Act provide: 1 In this Act, ...(i) “ severe handicap ” means an impairment of mental or physical functioning or both that, in a director's opinion after considering any relevant medical or psychological reports, causes substantial limitation in the person's ability to earn a livelihood and is likely to continue to affect that person permanently because no remedial therapy is available that would materially improve the person's ability to earn a livelihood. 3(3) Subject to subsection (4), a person is eligible to receive a benefit if the person satisfies a director that

...(

b) the person has a severe handicap... 5(2) Without limiting the generality of subsection (1), an applicant or client must provide any information about his or her physical, mental or psychological condition and undergo any physical, mental or psychological examinations a director considers necessary to determine if the applicant or client is severely handicapped. ...

(4) A director may, in accordance with the regulations, refuse, suspend, vary or discontinue a benefit. ... 10(1) The Minister may, in accordance with the regulations, establish one or more appeal panels to hear appeals under this Act.

(2) A person affected by a decision of a director, or a person on his or her behalf, may appeal that decision if it is not exempt from appeal under the regulations and the appeal is made in writing to an appeal panel within 30 days from when the person was notified of the decision and the right to appeal it.

(3) An appeal panel may, subject to this Act and the regulations, confirm, reverse or vary the decision of a director appealed from, and the decision of the appeal panel is final.

(4) The Minister may extend the time for appeal under subsection (2) if the Minister is satisfied that there are apparent grounds of appeal and a reasonable explanation for the delay. AISH Regulation 5(1) An appeal panel must not make a decision in an appeal of a director ’ s decision that the director would not have authority to make under the Act and regulations. General Regulation 5(1) A director may refuse...a benefit for which an applicant or client is eligible (

a) if, in the opinion of the director, the applicant...has ...(iii) failed to provide information as required by

section 5 of the Act or provided false or incomplete information, or (iv) failed to comply with a request by the director to gather or verify information directly from a third party for the purposes of

section 5 of the Act, (

b) if, in the opinion of the director, the applicant ... has

...(iii) failed to make use of appropriate training or rehabilitative measures. [ 12 ] As to the commencement date of AISH benefits, the Policy Manual provides in part: Intent To create consistency and equity in the commencement of AISH benefits. Policy The commencement date is the date that AISH benefits start for approved clients. The commencement date for AISH is generally the first of the month in which complete information supporting the decision to provide benefits was received. A commencement interview is held with the applicant to open the AISH file.

Exceptional circumstances and delays that occur in the application process are considered in the determination of the commencement date. New Medical Information Overturns a Decision If an applicant who is not approved by AISH submits new medical information that overturns the decision, the commencement date is the first of the month when complete information that supports overturning the decision was received. Eligibility Decision Overturned at Appeal If an appeal panel overturns an eligibility decision made by AISH, the commencement date is the date specified by the appeal panel.

If the appeal panel does not specify a date, the commencement date is the first of the month when complete information supporting the decision to provide benefits was received. Retroactive Payments Retroactive payments are issued by lump-sum payment for the entire retroactive period to the date at which benefits should have commenced. Legislative Authority

Assured Income for the Severely Handicapped Act,

section 3 [ 13 ] The Policy Manual amendments information indicates: April 13, 2012 - Commencement Date Revised commencement date from date of Assessment interview to date complete information to support decision is submitted. [ 14 ] Therefore, at the time of the Decision on February 2012, the Policy provided that the commencement date was the date of the Assessment interview rather than the date complete information was submitted. Positions of the Parties [ 15 ] The Director submits that the Appeal Panel erred in its

interpretation and application of the definition of “ severe handicap ” in s. 1 (

i) of the AISH Act , made erroneous findings of fact, breached the rules of natural justice by considering irrelevant evidence and failing to consider relevant evidence, and provided inadequate reasons for its decision.

The Director argues that the definition of severe handicap applies equally to all individuals in Alberta regardless of whether they live in remote parts of the Province with virtually no amenities or in large urban centres where by comparison the amenities are bountiful. [ 16 ] The Director further submits that the Appeal Panel did not have authority under the AISH Act to award benefits retroactively to the date on which Mr. A. ’ s earlier application was denied.

To interpret the legislation otherwise would open the floodgates for people seeking to receive a windfall by proving that they were severely handicapped at an earlier date in time, regardless of other eligibility requirements. [ 17 ] The Director argues that the Policy cannot be applied unreasonably, nor interpreted or applied to the exclusion of the legislation or to achieve a result that is contrary or exceeds the scope of what is permitted by the legislation. The Policy was developed in part to reassure applicants and clients who were concerned about how a delay in the appeal hearing may impact their benefits.

Mr. A. did not supply documentation to complete and support his application for benefits, despite consistent requests and reminders. The Appeal Panel has decided that Mr. A. was eligible for AISH benefits long before any sufficient information was provided to support or warrant the provision of benefits. Such an

interpretation is unreasonable and beyond the bounds of the legislation and the authority of the Appeal Panel. Policy cannot trump legislation. [ 18 ] The Respondent, Mr. A., submits that the Appeal Panel did not err in its decision. [ 19 ] The Respondent Appeal Panel provided written submissions. It notes that there is no legislative or regulatory provision which sets a rule for the start date of benefits. It takes the position that in the absence of such a rule in the legislation, there appears to be discretion.

As for the definition of “ severe handicap ” , there is no legislative or regulatory provision suggesting that the decision maker must ignore factors such as place of residence, education, and work history. It does, however, require consideration of the effect of an impairment on the individual in all of his circumstances. Issues [ 20 ] The following issues must be addressed by the Court:

a) Did the Appeal Panel err in finding that Mr. A. had a severe handicap as defined in s. 1(

i) of the AISH Act?

b) Did the Appeal Panel err in awarding AISH benefits retroactive to January 8, 2009, the date of the first application? Standard of Review [21] The Respondents submit that the decision that Mr. A. is severely handicapped is subject to the reasonableness standard ofreview. The Director concedes that the appropriate standard of review for this aspect of the decision is reasonableness. [22] The Director submits, however, that the Appeal Panel did not have authority under the AISH Act to decide that Mr.

A. shouldreceive AISH benefits retroactively to the date of an earlier application when benefits were denied, and that the standard of review onthis issue is correctness. [23] Mr. A. submits that the Appeal Panel has authority to award retroactive payments, and that its conclusion that he fell withinthe definition of “severe handicap” was reasonable. [24] Few decisions address the standard of review applicable to the Appeal Panel’s decision, and those that exist were renderedprior to Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.

The Courts in BG v Alberta (Director of Assured Income for theSeverely Handicapped), 2004 ABQB 91, 13 Admin LR (4th) 104, Alberta (Income Security, Director) v Alberta (Citizen's AppealPanel, Social Development Act), (AB KB), [1994] AJ No 173, 22 Admin LR (2d) 162 (QB) and Rauhala v Alberta,1999 ABCA 106, 232 AR 201 determined the standard of review to be patent unreasonableness where the Panel was deciding questionsof fact or mixed fact and law, correctness on questions relating to fairness of the hearing, and jurisdiction where the Panel took accountof irrelevant matters. [25] In discussing the Pushpanathan factors, the majority in Rauhala held that: - the privative clause, while not a "full" privative clause, suggested that the Legislature intended the Appeal Panel to decide thequestion at issue; - the lay Appeal Panel members’ expertise lay in the fact that they were ordinary citizens who were well-equipped to answer thetype of issue that often arises in the AISH context, and may in fact be better positioned to deal with these sorts of questions than arejudges; - the purpose of the Act is to ensure that eligible handicapped persons receive an appropriate benefit; - the statutory process is conducive to rapid resolution of contentious matters, which is very important given that the legislationwas intended to put money into the pockets of deserving recipients; and - the question regarding a particular individual’s eligibility due to handicap is fact-specific and does not have great precedentialsignificance. [26] Those comments remain valid.

Since that decision, Dunsmuir has collapsed the patently unreasonable and reasonablenessstandards.

[ 27 ] The Appeal Panel ’ s decision on whether an applicant has a “ severe handicap ” raises issues of mixed fact and law.

I find that the reasonableness standard applies to a review of the Appeal Panel ’ s decision on whether an applicant has a “ severe handicap ” . [ 28 ] As noted above, the Director argues that the correctness standard applies to the question of retroactive payments. [ 29 ] In Alberta (Information and Privacy Commissioner) v Alberta Teachers' Association , 2011 SCC 61 , [2011] 3 SCR 654 ( ATA ) , the issue was whether the Privacy Commissioner had lost jurisdiction due to the failure to extend the period for the completion of an inquiry within the prescribed time.

The Supreme Court held that deference is usually accorded where a tribunal interprets its own statute or statutes closely connected to its function, unless the issue is an exceptional one to which the correctness standard continues to apply. [ 30 ] As in ATA , the question here is not a constitutional question, a question regarding the jurisdictional lines between two or more competing specialized tribunals, a question of central importance to the legal system as a whole, or a "true question of jurisdiction or vires ".

The Supreme Court emphasized that the category of true questions of jurisdiction should be interpreted narrowly, and the

interpretation by a tribunal of its home statute is presumed to be a question of statutory

interpretation subject to deference on judicial review. [ 31 ] The AISH Act and Regulations are silent with respect to retroactivity. Whether the question entails

interpretation of the Appeal Panel ’ s home statute, regulations and policy or an exercise of the Appeal Panel ’ s discretion, I find that the appropriate standard of review is reasonableness. Analysis [ 32 ] In Dunsmuir , the Court stated in paras 46 and 47 that reasonableness is a deferential standard and a court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes.

Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 33 ] In Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708 , the Supreme Court further explained that the Dunsmuir definition of reasonableness does not make “ inadequacy of reasons ” a stand-alone basis for quashing a decision.

Nor is a reviewing court to undertake two discrete analyses: one for the reasons and one for the result. Rather, the reasons must be read together with the outcome and serve to show whether the result fell within a range of possible outcomes. Where reasons are sparse, courts should not substitute their own reasons, but may look to the record for the purpose of assessing the reasonableness of the outcome. [ 34 ] In the initial decision on January 8, 2009, the Director stated that Mr.

A. could reapply for AISH benefits in the future if there was a significant change in his medical condition or new information became available. One of the reasons his application was refused was because the Director anticipated that treatment by way of surgery might improve his health. Further, the Director was of the opinion that an alcohol treatment program might improve his health. The Director opined that improved health would in turn allow him to participate in training or employment programs or to enter the workforce. [ 35 ] Mr.

A. applied again with respect to the same medical condition, providing new information including hospital reports in relation to treatment of that medical condition. [ 36 ] In the August 5, 2011 letter, the Director stated that the medical information provided was incomplete, and it could not be determined without more information if the medical condition would continue to cause severe limitations on Mr. A. ’ s ability to function and to earn a livelihood. The Director recognized that he would have limitations and restrictions from performing physically active types of work.

However, the Director opined that he might still be able to do other types of work with appropriate education or training. The Director further opined that “ there may be other non-medical reasons ” which restricted his ability to train or work. The Director declined to consider any non-medical factors in relation to Mr. A. ’ s eligibility. The Director stated that the effectiveness of treatment and other

remedial therapies was not known, and that he had not explored options to train for work. [ 37 ] The Appeal Panel reviewed medical reports, based upon which it concluded that Mr. A. ’ s condition was severe and his prognosis was not promising. He had continuing infections and considerable chronic pain. The evidence indicated that infections could well lead to amputation. Mr. A. told the Panel that he was not drinking much anymore and would be interested in going to treatment again. However, the Appeal Panel also noted that Mr.

A. had been in two alcohol treatment programs with limited success. [ 38 ] Although the reasons in the Appeal Panel ’ s Decision are sparse, one can readily infer that the Appeal Panel found that Mr. A. ’ s medical condition impaired his physical functioning thereby substantially limiting his ability to earn a livelihood, and that it would likely continue to affect him permanently because no remedial therapy was available that would materially improve his ability to earn a livelihood.

One can further infer that the Appeal Panel was of the view that the medical condition had been ongoing since the time of the denial of his first application on January 8, 2009. [ 39 ] In my view, leaving aside for the moment the legality of the retroactive award, the Appeal Panel ’ s decision was reasonable. There was information before the Panel upon which it could conclude that Mr.

A. ’ s chronic and painful leg infection impaired his physical functioning and substantially limited his ability to earn a livelihood. [ 40 ] I agree with the Director that it is reasonable to consider available treatment and training opportunities in assessing whether an individual suffers from a severe handicap. However, in this particular case, it was not unreasonable for the Panel to have concluded that Mr. A. ’ s treatment options were very limited, the prognosis was not good, and Mr.

A. was not realistically in a position, because of his medical condition along with his other circumstances, to embark on any training which would enable him to earn a livelihood. Mr. A. had lived in the same remote location all of his life, had very limited work experience or education, and had attempted unsuccessfully on at least two occasions to formally address his alcohol problem. [ 41 ] While Mr.

A. cannot rely on social factors as an excuse to decline available treatment and training, at the same time he should not be prejudiced in terms of his AISH application simply because of his remote place of residence and limited opportunities.

Section 1 (

i) of the AISH Act defines “ severe handicap ” as an impairment that causes substantial limitation in the person's ability to earn a livelihood. It is not unreasonable to read this definition as covering a person whose impairment is one among a number of substantial limitations. [ 42 ] I further find that it was not unreasonable for the Panel to conclude that Mr. A. ’ s medical condition had been ongoing since January 8, 2009. The Director suggested that Mr.

A. might improve his health through treatment or alcohol rehabilitation which would enable him to participate in training or employment programs or to enter the workforce. It was not unreasonable for the Panel to find that those suggestions had proven to be overly optimistic.

Simply put, I find that the Panel ’ s Decision, with respect to the issue of severe handicap falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 43 ] As for the retroactive aspect of the award, the Director points to s. 10(3) of the AISH Act which provides that an appeal panel may confirm, reverse or vary the decision of a director appealed from .

However, the parties agree that the legislative framework is silent regarding the ability to make retroactive awards. [ 44 ] Indeed, the AISH Act and regulations place no limit on a start date for AISH benefits where an individual has applied for them. Section 3(3) of the AISH Act simply deals with eligibility. [ 45 ] Section 5(1) of the AISH Regulation provides that any decision of the Appeal Panel on appeal cannot exceed the authority of the Director. The Director submits that it does not have authority to award benefits retroactively and therefore the Appeal Panel does not have the authority either. [ 46 ]

Section 10 of the

Interpretation Act , RSA 2000, c I-8 provides:

10. An enactment shall be construed as being remedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects. [ 47 ] In my view, in the circumstances of this case, the Director is equating practice with jurisdiction. There is nothing in the legislation which prevents the Director from making retroactive payments in appropriate cases. The Policy was not challenged as being ultra vires . I find that the Appeal Panel has the authority to make retroactive awards in appropriate circumstances.

The Appeal Panel is not confined to “ standard practice ” . [ 48 ] It is important to keep in mind that the AISH Act is a remedial statute designed to provide a living allowance to individuals who are impaired because of mental or physical functioning or both and substantially limited from earning a livelihood. [ 49 ] The AISH Policy currently indicates that the commencement date for AISH is generally the first of the month in which complete information supporting the decision to provide benefits was received.

At the time of the Appeal Panel ’ s decision on February 20, 2012, the Policy provided that the commencement date was the date of the Assessment interview. However, the Policy also provides that exceptional circumstances and delays that occur in the application process are considered in the determination of the commencement date. It further states that if an appeal panel overturns an eligibility decision, the commencement date is the date specified by the appeal panel.

Finally, it states that retroactive payments are issued by lump-sum payment for the entire retroactive period to the date at which benefits should have commenced. [ 50 ] Therefore, the Policy contemplates some flexibility with respect to commencement date, and recognizes that exceptional circumstances and delay may warrant varying the standard commencement date.

It recognizes discretion in the appeal panel to independently determine the commencement date and the possibility of retroactive payments to the date at which the benefits “ should have commenced ” . [ 51 ] I find that the Appeal Panel was not unreasonable in its

interpretation of the applicable legislation and policy and its application of the same in this case. It was open to the Appeal Panel to find that benefits “ should have commenced ” when the first decision was rendered, given that Mr.

A. has repeatedly complained of the same condition since that first application, and subsequent events have only confirmed that the Director ’ s speculation as to future improvement due to treatment or training opportunities proved to be incorrect or unrealistic. [ 52 ] It remains to consider whether the Panel unreasonably exercised its discretion in this case to specify the commencement date. The Director argues that the Panel ’ s approach would open the floodgates to applicants attempting to establish a severe handicap at an earlier date. In my view, this concern is unfounded. Mr.

A. ’ s particular situation involves an initial application, a denial which suggested he could submit further information, and a further application following unsuccessful treatment containing additional information with respect to the same condition. As noted above, the Appeal Panel reasonably concluded that his condition as at January 8, 2009 was sufficiently severe to bring him within the eligibility requirements, and the subsequent events simply underscored the validity of his first submissions. [ 53 ] The Appeal Panel does not expressly refer to Mr. A. ’ s failure to appeal the initial decision.

I do note that the Director ’ s January 8, 2009 letter indicated that he could reapply if new information became available, and that he had the right to appeal the decision. I am not at all satisfied that a person in Mr. A. ’ s circumstances would necessarily appreciate the distinction between the two modes of proceeding, nor that the choice between reapplying with additional information and appealing would have an impact on the date on which his benefits might commence.

On a simplistic view of the matter, he had presented information with respect to his medical condition and that medical condition was ultimately deemed by the Panel to constitute a severe handicap. [ 54 ] This is not a case of a person making an initial application for benefits extending back years prior to that application, and therefore does not set a problematic precedent in that respect. Conclusion [ 55 ] The application is dismissed.

Costs [ 56 ] If the parties cannot agree on costs, they may speak to costs within 30 days of this decision. Heard on the 27 th day of February, 2013. Dated at the City of Edmonton, Alberta this 17 th day of April, 2013. Gerald A. Verville J.C.Q.B.A. Appearances: Andrew Pearcey Alberta Justice and Solicitor General for the Applicant Michael Nanooch Michael Nanooch Professional Corporation for the 1 st Respondent Donald R. Cranston, Q.C. Bennett Jones LLP for the 2 nd Respondent