Niyonkuru v. Alberta (Director of Assured Income for the Severely Handicapped), 2013 ABQB 542

Court of Queen’s Bench of Alberta Citation: Niyonkuru v. Alberta (Director of Assured Income for the Severely Handicapped), 2013 ABQB 542 Date: 20130917 Docket: 1203 14346 Registry: Edmonton Between: Albert Niyonkuru Applicant - and - 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 Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Russell Brown _________________________________________ ______________ I.

Introduction [ 1 ] The Applicant A.N. applied for Assured Income for the Severely Handicapped (AISH) benefits. On February 21, 2012 the AISH Administrator, in her capacity as the delegate of the Executive Director, Delivery Services of AISH (the “Director”), denied the application. [1] The Applicant appealed to the Appeal Panel which, on June 25, 2012, confirmed the Director’s decision. [ 2 ] The Applicant now applies for judicial review of the Appeal Panel’s decision.

By his Originating Application, he seeks remittance of his application to the Appeal Panel for reconsideration, although in his submissions before me his counsel also invited me

to declare him eligible for AISH benefits. II. Background The Evidence [ 3 ] The findings of fact made by the Appeal Panel, none of which the Applicant disputes, include the following: 2. [The Applicant] applied for AISH in 2011 with a primary diagnosis of chronic shoulder pain and lower back pain. The degree of impairment was diagnosed by the family doctor to be severe and the prognosis permanent. 3. The Director denied eligibility for AISH benefits based on the lack of medical evidence supporting the fact [the Applicant] would not be able to return to any type of employment.

The Director stated [the Applicant] may not be able to return to his former type of employment but did not preclude a sedentary type of work. It was also noted [the Applicant] was attending Norquest and further education might enable [the Applicant] to find more suitable employment. 4. [The Applicant] supplied reports from two orthopedic surgeons, a neurosurgeon, a physiotherapist with x-rays and a report from a chiropractic clinic. The original medical report from the family doctor was incomplete. The report stated [the Applicant] needed a referral to an Orthopedic surgeon and could not work. 5.

The Department received a new and more complete medical report on August 09, 2011 in which it was indicated [the Applicant] suffered from chronic shoulder and back pain. He stated [the Applicant] has difficulties with grooming, dressing and eating. Neither report was dated by the doctor. 6. The Orthopedic specialist, Dr. Nadr Jomha, wrote a report on September 22, 2009 stating there is damage to [the Applicant’s] left elbow and a fracture of his neck that is not completely healed. This report was based on a undated MRI which was not included in the Appeal package. 7. [The Applicant] told Dr.

Jomha his elbow was injured due to an assault by 6 plain clothed policemen. He stated he escaped by jumping through a window thus causing the injury which was further compounded when the police handcuffed his arms behind his back. 8. In a report from Medical Imaging Consultant’s [ sic ] dated August 6, 2009 it is indicated there is disc desiccation at T12-L1 and minimal disc bulging with no stenosis. The remainder of the report did not indicate any outstanding problems. The report talked of the presence of mild degenerative disease, primarily at the lower three discs. 9.

A report was received from a Neurological Associate, Dr. Andrew Nataraj in October, 2009 which stated that although he felt [the Applicant] did have pain from both the elbow and the back, [the Applicant] showed an increase in back stability and could start increasing his activities. The doctor stated no further x-rays were necessary and he did not have to see [the Applicant] routinely. 10. On July 13, 2010, Dr. Jomha dictated a report which indicated [the Applicant’s] elbow injury was severe enough to keep him from doing a manual labour type job indefinitely.

The doctor stated he would consider the injury to be severe enough to cause a substantial limitation in his ability to earn a livelihood. There was no mention regarding the severity of [the Applicant’s] back condition. 11. An x-ray dated June 22, 2011 stated there was a moderate fracture of the L1 which was probably an old fracture and had some marginal osteophyte formation present. 12. On July 15, 2011 the family doctor wrote [the Applicant] had significant chronic health problems and has been treated by a chiropractic clinic.

He stated that [the Applicant] showed some improvement but more treatment was necessary. 13. A report from the physiotherapist on October 27, 2011 indicated after seven treatments [the Applicant] had only experienced a modest decrease in back pain. … 18. [The Applicant] told the Panel he speaks French, Kirundi and Swahili. He stated he is a little rusty in French as he has not spoken it for the past 4 years. He also informed the Panel he had tried “EmployAbilities” about two years ago and they told him he was not a suitable candidate because he could not speak English.

When he recently returned to talk to them (after his further ESL training) they refused to talk to him and asked him to leave. No reason was given for this action. 19. [The Applicant] stated he has Grade 12 education but the Burundi education is not equivalent to Canadian education. His understanding of mathematics is very limited. He stated he was a welder in his home country. 20. [The Applicant] stated that he has been coded as unable to work by Income Support and receives $1,091 monthly. 21. The Panel noted [the Applicant] appeared to be in discomfort while he was at the Appeal.

He did not sit very long and moved constantly throughout the hearing. … The Panel reconvened the Appeal at the request of [the Applicant]. He stated that he had failed to tell the Panel some important information. The Secretariat facilitated a conference call with the Department Representative and [the Applicant] and his Advocate were present with the Appeal Panel.

… 3. [The Applicant] was asked what type of pain medication he was on. He replied the drugs the doctor had given him did not work and he has been medication free for the past 3 months.

He stated the doctor told him this medication was very hard on the body. [The Applicant] told the Panel the doctor had suggested he attend a pain management clinic but he found the clinic to be very complicated and he was not offered an appointment in the near future and did not follow through with the appointment. 4. [The Applicant] told the Panel he had not received any further testing since he attended a Chiropractor a couple of years ago. The most recent Chiropractor told him he did not need anymore [ sic ] tests. 5. The last MRI was dated August 2009 and [the Applicant] stated this was the MRI which Dr.

Jomha referred to in his report of September, 2009. The Director’s Decision [ 4 ] As mentioned, the AISH Administrator acted in her capacity as the Director’s delegate.

Her eligibility decision of February 21, 2012 stated: [B]ased on medical evidence it is not feasible for applicant to do labour type work due to his elbow condition. [H]owever, he is taking classes at Norquest and appears to have the potential to work in a light sedentary type of position once he completes his classes at Norquest. [ 5 ] The AISH Administrator then wrote to the Applicant, stating: … I regret to inform you that your application was not approved as you do not meet the eligibility criteria for the determination of a severe handicap. The definition of “severe handicap” according to the AISH Act

Section 1(

i) is: “an impairment of mental or physical functioning or both that, in the 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.” The decision was based on the following: Based on the medical documentation provided with your application to AISH, your medical condition prevents you from working in a labour intensive type of job.

You are currently taking classes at Norquest College. This upgrade to your education will provide you with the training and skills to work in a light sedentary type of position which appears to be suitable for you. To be eligible for AISH a person must have a severe disability that permanently prevents them from doing any type of work.

The Appeal Panel’s Decision [ 6 ] On June 25, 2012, the Appeal Panel confirmed the Director’s decision, and gave the following reasons: The Appeal Panel had regard to the definition of a severe handicap as set out in the AISH Act, which reads: “severe handicap” means an impairment of mental or physical functioning that, in a directors [ sic ] opinion after considering any relevant medical or psychological reports, causes substantial limitation in the persons [ sic ] 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 persons [ sic ] ability to earn a livelihood.

The Panel recognizes [the Applicant] has permanent problems with his left elbow which will make certain types of manual employment beyond his reach. He also suffers from a back ailment. However, the Panel is not convinced [the Applicant] has exhausted all available treatments. [The Applicant] indicated to the Panel that he has not taken anything for pain for three months and has not pursued an appointment with the pain management clinic which his doctor has suggested.

It was also noted by the Panel that there has not been any update on his x-rays from 2011 and this x-ray report suggests vertebral alignment and disc spaces are maintained and facet and S1 joints are clear. It did note some pseudoarthrosis existed. The MRI report indicates a mild degenerative disease primarily at the lower three discs. However, there are no bulging discs or stenosis present and the Panel believes [the Applicant’s] back pain could possibly be controlled through proper pain management. This area of treatment has not been explored fully by [the Applicant].

The Panel finds [the Applicant] to be a bright young man and although he may be limited to the type of work he can do, there is a possibility he could succeed at less physically demanding employment. The Panel does not concur with the argument the Advocate stated regarding ESL not allowing [the Applicant] further chances at employment. The chance of employment can only be improved with [the Applicant’s] increased command of the English language.

Therefore the Panel confirms the decision made by the Director. III.

Applicable Statutory and Regulatory Provisions [ 7 ] The pertinent sections of the Assured Income for the Severely Handicapped Act , SA 2006, c A-45.1 (the 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. … 2 A director may delegate any power, duty or function conferred or imposed on a director under this Act to any employee of the Department or of an Indian or Metis organization. … 3(1) A director may, subject to this Act and in accordance with the regulations, provide the following benefits: (

a) a living allowance, a child benefit or a personal benefit to a person who is eligible under subsection (3); (

b) a health benefit to a person who is eligible under subsection (3) and any cohabiting partner or dependent children of that person.

(2) A director may provide a modified amount of a living allowance in accordance with the regulations to a person who resides in a facility.

(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,. … and (

e) the person meets any other conditions set out in the regulations. … 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 ….

(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. ... 12(2) The Minister may make regulations … (

b) respecting appeal panels, appeals and the decisions of a director that are exempt from appeal. [ 8 ] Section 5(1)(iii) of the Assured Income for the Severely Handicapped General Regulation , AR 91/2007 (the General Regulation ) provides “[a] director may refuse, vary, suspend or discontinue a benefit for which an applicant or client is eligible if, in the opinion of the director, the applicant or client has failed to make use of appropriate training or rehabilitative measures ….” [ 9 ] The Applications and Appeals (Ministerial) Regulation , AR 89/2007 (the Ministerial Regulation ) provides: 3(1) In establishing an appeal panel, the Minister may (

a) appoint or provide for the manner of the appointment of its members, (

b) prescribe the term of office of any member, (

c) designate a chair, (

d) authorize, fix or provide for the payment of remuneration and expenses to its members, and

(

e) prescribe the number of members of the appeal panel that constitutes a quorum. … 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 makeunder the Act and regulations. IV. Issues [10] The issues before me are: 1. Did the Appeal Panel act without jurisdiction? 2. If the Appeal Panel acted with jurisdiction, a. what standard of review must I apply to the Appeal Panel’s decision? and b. does the Appeal Panel’s decision meet the applicable standard of review? V.

Jurisdiction [11] In addition to attacking the reasonableness of the Appeal Panel’s decision (which I will consider below), the Applicant arguesthat the Appeal Panel abused its discretion and therefore acted without jurisdiction by taking into account what he says are irrelevantconsiderations, being the Applicant’s efforts to improve his English-speaking ability; “speculation” about his qualifications forsedentary work; and his failure to pursue a recommended program of pain management.

The Applicant further submits that the AppealPanel failed to direct its mind to “the statutory criteria for assessing eligibility – that is the extent to which [the Applicant’s] injuriesamounted to a permanent and substantial limitation in his ability to earn a livelihood.” (Emphasis in original). As a result, the Applicantsays, the Appeal Panel’s acted without jurisdiction, and its decision is ultra vires. [12] The standard of review of a true question of jurisdiction or vires is correctness. (Dunsmuir v.

New Brunswick, 2008 SCC 9,[2008] 1 SCR 190 [Dunsmuir] at para. 59). [13] Does an administrative tribunal’s reliance upon irrelevant considerations give rise to a true question of jurisdiction or vires? [14] Prior to the Supreme Court of Canada’s decision in Dunsmuir, an administrative tribunal’s action upon irrelevantconsiderations was considered ultra vires.

In other words, an administrative tribunal which acted upon irrelevant considerations wasviewed as having acted without jurisdiction. (Associated Provincial Picture Houses Ltd v Wednesbury Corp, [1948] 1 KB 223; [1947] 2All ER 680 at 682-85 (CA); Campeau Corp v Calgary (City) (1978), 1978 ALTASCAD 266 , 7 Alta LR (2d) 294 (CA); Callinga v Calgary (City) (1975), 1975 ALTASCAD 13 , 62 DLR (3d) 433 (ABCA); CUPE v Ontario (Minister of Labour),2003 SCC 29; and R v Smith & Rhuland Ltd, (SCC), [1953] 2 SCR 95 at 100). [15] In Dunsmuir (at para. 59), however, the Supreme Court confined true questions of jurisdiction or vires to “the narrow sense ofwhether or not the tribunal had the authority to make the inquiry.” By way of explanation, the majority added: In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives itthe authority to decide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to beultra vires or to constitute a wrongful decline of jurisdiction …. These questions will be narrow.

We reiterate the caution of Dickson J. in[Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp, (SCC), [1979] 2 S.C.R. 227] thatreviewing judges must not brand as jurisdictional issues that are doubtfully so. [16] This narrow scope for finding a true question (and therefore error) of jurisdiction was affirmed in Alberta (Information andPrivacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 [Alberta v Alberta Teachers’ Association], where Rothstein J said(for the majority, at para. 34) that a court should be reluctant to characterize matters as jurisdictional when they involve (as they do here)the

interpretation of a home statute. “True questions of jurisdiction”, he added (at para. 39), “will be exceptional”. (See also Canada(Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53, [2011] 3 SCR 471 [Canadian Human RightsCommission] at para. 24: “issues which in other days might have been considered by some to be jurisdictional, should now be dealt withunder the standard of review analysis in order to determine whether a standard of correctness or of reasonableness should apply”; andSmith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 [Alliance Pipeline] at para 36). [17] The Applicant does not raise a true question of jurisdiction.

There is no suggestion in the Applicant’s submissions that theAppeal Panel incorrectly assumed jurisdiction to hear and adjudicate upon whether he has a “severe handicap” such that he is eligible toreceive AISH benefits. I will return below to consider the question of whether the Appeal Panel, in doing so, relied upon irrelevantconsiderations. VI. Standard of Review [18] In Dunsmuir, the Supreme Court reassessed how courts should review decisions of administrative tribunals.

For the majority,Bastarache and LeBel JJ sought to simplify judicial review by, first, reducing the range of possible standards of review from three totwo: correctness, and reasonableness. It also emphasized the importance of precedent and of the nature of the question to be decided indetermining the standard of review to be applied. The majority summarized the process as follows (at paras. 62-64):

In

summary, the process of [determining the appropriate standard of] judicial review involves two steps. First, courts ascertain whetherthe jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particularcategory of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making itpossible to identify the proper standard of review. The existing approach to determining the appropriate standard of review has commonly been referred to as "pragmatic and functional".That name is unimportant.

Reviewing courts must not get fixated on the label at the expense of a proper understanding of what theinquiry actually entails. Because the phrase "pragmatic and functional approach" may have misguided courts in the past, we prefer torefer simply to the "standard of review analysis" in the future. The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1)the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by

interpretation of enabling legislation; (3)the nature of the question at issue, and; (4) the expertise of the tribunal.

In many cases, it will not be necessary to consider all of thefactors, as some of them may be determinative in the application of the reasonableness standard in a specific case. [19] The majority in Dunsmuir added (at para. 54) that deference (that is, a standard of review of reasonableness) “will usuallyresult” where an administrative tribunal is interpreting its own statute (the “home” statute) or statutes closely connected to its function,with which it will have particular familiarity. (See also Binnie J’s reasons at paras. 124, 128).

This preference for a reasonablenessstandard of review of decisions of administrative tribunals interpreting or applying their home statute has since been elevated to apresumption (absent an “exceptional” circumstance). (Alberta v Alberta Teachers’ Association at para. 39; Edmonton School District No7 v Alberta Teachers’ Association, 2013 ABCA 155 at para. 18). [20] Reasonableness is also normally the governing standard when the question to be decided raises issues of fact, mixed fact andlaw, discretion or policy. [21] Conversely, correctness will be the governing standard governing administrative tribunals’ decisions on constitutional issues;on questions of “general law” that are “of central importance to the legal system as a whole and outside the adjudicator's specialized areaof expertise”; on drawing jurisdictional lines between two or more competing specialized tribunals; and on a true question ofjurisdiction or vires. (Alliance Pipeline, at para. 26).

Existing Jurisprudence [22] As the majority explained in Dunsmuir (at para. 57), “an exhaustive review is not required in every case to determine theproper standard of review”.

The first step in the process is, therefore, to consider whether the existing jurisprudence has alreadydetermined in a satisfactory manner the degree of deference to be accorded with regard to the question decided by the Appeal Panel. [23] Counsel drew to my attention the recent decision of my colleague Verville J in Alberta (Director of Assured Income for theSeverely Handicapped) v BGA, 2013 ABQB 232, which reviewed the decision of the Appeal Panel on the question of whether anapplicant for AISH benefits had a severe handicap within the meaning of the Act.

Justice Verville determined (at paras. 21 to 31) that theappropriate standard of review was that of reasonableness. In so finding, he referenced several pre-Dunsmuir decisions of this Court andone of the Court of Appeal (GR v Alberta (Family and Social Services), 1999 ABCA 106, which had determined the standard of reviewto be applied to such decisions to be that of patent unreasonableness.

That standard of review was, of course, subsumed by Dunsmuir (atpara. 45) into the more general standard of review of reasonableness. [24] Both counsel appearing before me submitted that I ought not to consider myself bound by GR (inasmuch as it was decidedprior to Dunsmuir) and that I ought to undertake a fresh standard of review analysis. [25] In my view, what matters here is not whether I am bound by appellate authority on the standard of review to be applied to theAppeal Panel’s decisions on whether an applicant for AISH benefits has a severe handicap.

Rather, what matters is what the SupremeCourt directs me to do with that appellate authority, which is to consider whether it satisfactorily determines the standard of review to beapplied to those decisions.

The mere fact that the jurisprudence under consideration pre-dates Dunsmuir does not preclude my doing so.Indeed, the practice of our Court of Appeal on considering pre-Dunsmuir jurisprudence suggests I must do so. (Lethbridge RegionalPolice Service v Lethbridge Police Assn, 2013 ABCA 47 at para. 26; Omers Energy Inc v Alberta (Energy Resources ConservationBoard), 2011 ABCA 251 at paras. 24-28). [26] Moreover, Dunsmuir did not condition this step in the analysis by requiring that only later jurisprudence be consulted. Rather,it directed the reviewing court’s attention to “existing jurisprudence”.

While a reviewing court might wish to be more cautious where thepre-Dunsmuir jurisprudence applied a standard of correctness, this does not arise here. (Canadian Human Rights Commission, at para.11: “… given the recent developments in the law of judicial review since Dunsmuir and its emphasis on the deference owed toadministrative tribunals, even in respect of many questions of law, we must discuss whether all decisions on questions of law rendered bythe Tribunal and similar bodies should be swept under the standard of correctness.”). [27] Does GR satisfactorily determine the standard of review which I am to apply here? [28] The majority in GR reached its decision by taking into account the factors in the so-called “pragmatic and functional” analysisoutlined in Pushpanathan v Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 SCR 982.

Thatanalysis was reconstituted under Dunsmuir as the standard of review analysis. The essential considerations therefore remain unchanged,such that the analysis undertaken in GR covers the same ground as a post-Dunsmuir analysis would have covered.

In my judgment amajority decision of our Court of Appeal on the standard of review to be applied to the same question decided by the same panel and onthe same considerations as I am to apply, satisfactorily determines the standard of review as (in this case) that of reasonableness. [29] If I am wrong, then, as I will now explain, both (1) the Supreme Court’s directions as to circumstances where an

administrative tribunal is interpreting or applying its “home” statute, and (2) application of the standard of review itself, lead to the sameresult. “Home” Statute [30] As mentioned, courts accord deference to administrative decisions that interpret an administrative tribunal’s enabling statute.Section 10 of the Act provides for the creation of the Appeal Panel and for its powers to review the Director’s decisions.

Section 3provides that a person is eligible to receive AISH benefits if the person satisfies the Director that (inter alia) he or she has a “severehandicap” as defined in

Section 1(i). The question to be answered by the Appeal Panel in this matter therefore required

interpretation andapplication of its enabling (home) statute. This also presumptively sets the standard of review as that of reasonableness. Standard of Review Analysis [31] As the Supreme Court said in Dunsmuir (at para. 64), the standard of review analysis must be “contextual”.

It then set outseveral “relevant factors” which highlight aspects of the “context” in which an administrative tribunal makes a decision [32] At the same time, applying a list of factors designed to highlight “context” also poses the paradoxical risk of risk treating thestandard of review analysis in a mechanical, a contextual or even rote fashion.

This risk can be avoided by a reviewing court bearing inmind the substance of what it means to determine the standard of review of an administrative tribunal’s decision. [33] In my view, the determination of the appropriate standard of review entails asking this question: given the question before theAppeal Panel, and given the Appeal Panel itself, who is best positioned to answer it? The Appeal Panel? Or, me? (Alice Woolley &Shaun Fluker, “What has Dunsmuir Taught?” (2010) 47 Alta L Rev 1017 at 1029). Each of the factors comprising the Dunsmuirstandard of review analysis are directed to precisely this question.

A privative clause speaks to who our legislators thought most suited toanswer the question. Consideration of the tribunal’s purpose as discerned in its enabling legislation is also directed to identifying theoptimal decision-maker. For example, is the tribunal established to adjudicate matters usually decided by courts, or is it a policyinstrument designed with costs and benefits in mind, and assigned decision-making responsibility which courts have never exercised?

The factor of the nature of the question to be decided recognizes that, while courts may be best placed to make the ultimate decision onquestions of general law, courts are not necessarily any more adept than reasonable laypersons at fact-finding or even at applying facts toa familiar legal regime. (And, even if they were, the skills of the statutory delegate may be sufficient in the eyes of Parliament or theLegislature.) Similarly, the important consideration of a tribunal’s expertise recognizes that while reviewing judges are well placed todecide some questions, the training or experience of some administrative decision-makers may leave them equally well placed (or better)to decide others. [34] Keeping in mind that overarching question to be answered in determining the standard of review, I turn now to the analysisrequired by Dunsmuir.

(1) Privative Clause [35] A statutory privative clause is compelling evidence that the legislators intended courts to adopt a deferential standpointtowards the decisions of an administrative tribunal. While each privative clause must be considered in light of its particular wording, as astarting point I must bear in mind that its mere presence connotes a legislative intent that, so long as the administrative tribunal actswithin the bounds of its jurisdiction, courts should leave the administrative tribunal alone to do its job.

Any test for the standard ofreview which produces a different outcome is, in my view, theoretically suspect. [36] Courts have tended to distinguish “full” or “true” privative clauses (which declare that decisions are final and conclusive,allowing of no appeal and excluding all forms of judicial review) from privative clauses which employ words that purport to limit reviewbut fall short of being “fully” or “truly” privative. (Pasiechnyk v Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 SCR 890 at 905).

Each attracts corresponding degrees of deference. [37] Section 10(3) of the Act contains a privative clause, stipulating that “the decision of the appeal panel is final”. This is not afull or true privative clause in the sense described in Pasiechnyk although, as mentioned, it represents the Legislature’s stated intent thatcourts review the Appeal Panel’s decisions respectfully. Because it suggests that the Legislature viewed the Appeal Panel as best placedto decide questions of AISH eligibility, it militates against a review of the Appeal Panel’s decision in this case for correctness.

(2) Purpose of the Tribunal [38] I am also to consider the Appeal Panel’s purpose by interpreting the Act, in conjunction with its regulations. The statutory andregulatory scheme is designed to ensure that eligible persons – that is, persons with a “severe handicap” – receive an appropriate benefit.(GR, at para. 22; BGA, at para. 48).

It does so by legislating benefits (Act, s. 3, General Regulation ss. 6 to 8) and eligibility criteria (Act,s. 1(i); General Regulation, ss. 3, 4), an applications process (Act, s. 4), an eligibility review by a director or a delegate (Act, s. 5; General Regulation s. 5 & Sched. 1), appeal panels (Act, s. 1; Ministerial Regulation, s. 3), a process for appeals to appeal panels(Ministerial Regulation, s. 4) and by confining appeal panels to decisions that the Director would have authority to make (MinisterialRegulation, s. 5).

Not surprisingly (given that applicants will typically be of modest means), the process is highly informal, time-effective and cost-effective. Again, this suggests that the Legislature considered the Appeal Panel as best placed to decide questions ofAISH eligibility. This supports a standard of review of reasonableness. (Dunsmuir, at para. 69).

(3) The Nature of the Question at Issue [39] The issue before the Appeal Panel was whether to confirm, reverse or vary the Director’s decision that the Applicant did notqualify for AISH because he did not have a “severe handicap” as defined in

Section 1(

i) of the Act.

[ 40 ] This is a question of mixed fact and law. It involves applying a legal standard (being the statutory definition of “severe handicap”) to the facts of the Applicant’s case. ( Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 at para. 26 ). Such questions are suited to tribunal members, who will have heard evidence, found facts, and applied them to their home statute. This also weighs in favour of a reasonableness standard of review. ( Haida Nation v British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 SCR 511 at para. 61 ; and Rio Tinto Alcan Inc v Carrier Sekani Tribal Council , 2010 SCC 43 , [2010] 2 SCR 650 at para. 65 ).

(4) The Appeal Panel’s Expertise [ 41 ] In GR , the majority said (at para. 21): Although the Appeal Panel members do not have special training relating to handicap benefits, in my view their expertise lies in the fact that they are ordinary citizens who are well-equipped to answer the type of issue that often arises in the A.I.S.H. context. (Emphasis in original) [ 42 ] Coutu J (sitting ad hoc ) dissented, observing (at para 47) that, because the Appeal Panel members “are selected from the community and represent a broad range of experience and background”, they do not possess “expertise” within the meaning of the “particular” and “substantive” sense contemplated by Pushpanathan . [ 43 ] In Pushpanathan (at para. 33 ), Bastarache J cautioned: [E]xpertise must be understood as a relative, not an absolute concept.

As Sopinka J. explained in Bradco , supra , at p. 335: "On the other side of the coin, a lack of relative expertise on the part of the tribunal vis-à-vis the particular issue before it as compared with the reviewing court is a ground for a refusal of deference" (emphasis added). Making an evaluation of relative expertise has three dimensions: the court must characterize the expertise of the tribunal in question; it must consider its own expertise relative to that of the tribunal; and it must identify the nature of the specific issue before the administrative decision-maker relative to this expertise.

Many cases have found that the legislature has intended to grant a wide margin for decision-making with respect to some issues, while others are properly subject to a correctness standard. Those cases are discussed in the fourth

section below, the "Nature of the Problem". The criteria of expertise and the nature of the problem are closely interrelated. [ 44 ] As to “the expertise of the tribunal in question”, I have no evidence before me respecting the individual Appeal Panel members’ qualifications, training or experience.

Section 3(1) of the Ministerial Regulation provides that, with the exception of expiry of appointment and reappointment, all aspects of their appointment (including the manner of their appointment) is a matter of ministerial discretion. [ 45 ] The majority in GR appears to have emphasized Bastarache J’s consideration of “its own expertise relative to that of the tribunal”.

While I respectfully observe that it might not be strictly correct to ascribe experience to “the fact that [Appeal Panel members] are ordinary citizens who are well-equipped to answer the type of issue that often arises [in deciding whether an applicant for AISH has a special handicap]”, I must also bear in mind that “expertise” as a factor within the standard of review analysis is simply intended to inform the determination of who – as between the Appeal Panel and this Court – is better placed to decide questions of AISH eligibility.

They must process a large number of applications and acquire familiarity with the traits of applicants who meet the eligibility criteria. With that in mind, in my view the majority in GR considered that ordinary citizens are at least as well placed as the Court (if not better) to determine whether an applicant meets the eligibility criteria for AISH. It must be remembered that Bastarache J for the majority in Pushpanathan described “expertise” (at para. 32) as having several dimensions, including “the non-judicial means of implementing an Act ”.

While this understanding of “expertise” has been criticized as “cover[ing] virtually all of administrative law” (David P Jones & Anne S de Villars, Principles of Administrative Law , 5 th ed., Carswell, 2009 at 551, fn. 207), it does have the virtue of consistency with the Legislature’s intent, evident in the statutory scheme, that the ultimate determination of the Applicant’s eligibility for AISH is best left to the Appeal Panel. [ 46 ] Appellate authority has therefore resolved the question of the Appeal Panel’s expertise for the purposes of the standard of review.

While the Appeal Panel is not composed of “experts” in the sense of having specialized knowledge, they are nonetheless experts in another sense contemplated by Pushpanathan . This factor weighs in favour of a reasonableness review.

(5) Conclusion of the Standard of Review Analysis [ 47 ] Considering all these factors - the privative clause; the Appeal Panel’s purpose; the question of mixed fact and law put before the Appeal Panel; and the Appeal Panel’s expertise – I find that the Appeal Panel, and not the Court, is best positioned to answer the question of the Applicant’s qualification for AISH. This affirms that the appropriate standard of review of the Appeal Panel’s decision in respect of the Applicant is that of reasonableness. VII.

Was the Appeal Panel’s Decision Reasonable? [ 48 ] In applying the reasonableness standard of review, I am to determine whether there is “justification, transparency and intelligibility within the decision-making process”, and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” ( Dunsmuir , at para. 47 ). [ 49 ] In Dunsmuir , the majority observed (at para. 47) that “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions.” This makes sense. Reasonable people may frequently entertain different opinions on many topics. The same is true of adjudicators. [ 50 ] It is therefore sufficient for the Appeal Panel’s decision to come within the range of acceptable solutions and to offer reasons

which allow the reviewing court to understand why it settled on the particular decision it did. ( Newfoundland Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 61 , [2011] 3 SCR 708 at para. 16 ; Construction Labour Relations v Driver Iron Inc , 2012 SCC 65 , [2012] 3 SCR 405 at para. 3 ). [ 51 ] Viewed in the context of the record, is the Appeal Panel’s decision reasonable? [ 52 ] As I have already noted in considering the Applicant’s submissions regarding the Appeal Panel’s jurisdiction, he criticizes the Appeal Panel’s reference to his English language training and to the “possibility” that the Applicant “could succeed at less physically demanding employment”.

He emphasizes that

Section 1 (

i) of the Act requires that he show a substantial limitation in the person’s ability to earn a livelihood, and not any livelihood. And, he adds, he would not be able, given his physical limitations and his qualifications, to earn a livelihood since he could not earn enough for food, shelter and clothing.

He says that the Appeal Panel departed from the statutory test by considering pain management and the possibility of sedentary work and, therefore, decided his application unreasonably. [ 53 ] The Applicant’s objection is not supported by a review of the Appeal Panel’s decision. [ 54 ] The Appeal Panel’s decision was not solely based upon consideration of the Applicant’s efforts to improve his English- speaking abilities.

Reviewing the entirety of the Appeal Panel’s as a whole, it is clear that the Appeal Panel’s reason for its decision to deny the Applicant’s appeal from the decision of the director is found in its conclusion that the Applicant had not “exhausted all available treatment” for pain management – specifically, that he had not taken anything for pain for three months and had not pursued an appointment with the pain management clinic at his physician’s suggestion. [ 55 ] The Appeal Panel’s later reference to ESL appears to have been made in response to the Applicant’s submission that his English language classes would not materially improve his chances of obtaining employment. (“The Panel does not concur with the argument the Advocate stated regarding ESL not allowing [the Applicant] further chances at employment”.) In short, the Appeal Panel was not pursuing an irrelevant consideration.

Rather, it was, appropriately, responding to the Applicant’s submission. [ 56 ] Nor was the Appeal Panel’s reference to “a possibility [the Applicant] could succeed at less physically demanding employment” an irrelevant consideration. Again, context is important.

And again, the Appeal Panel was addressing the Applicant’s submissions which, referring to statements of his treating medical practitioners that the Applicant would be unable to do “labour” jobs, argued that “it [cannot be inferred from that evidence] that he could necessarily do non-labour jobs.” The Appeal Panel’s reply (“although he may be limited to the type of work he can do, there is a possibility he could succeed at less physically demanding employment”) is both justifiable and intelligible in light of the Appeal Panel’s preceding and comprehensive finding on the subject of pain management. [ 57 ] I appreciate that the Director’s decision was based solely upon the ground of the Applicant’s supposed ability to perform sedentary work.

It is, however, the Appeal Panel’s decision which is under review here. [ 58 ] This leaves the matter of the Appeal Panel’s consideration of pain management. The Applicant urges me to distinguish between consideration of the injury or impairment (which he says is legitimate) from consideration of pain (which, he says, is not). While

Section 1(

i) of the Act defines “severe handicap” as an impairment, it must also be an “impairment … that … causes substantial limitation in the person’s ability to earn a livelihood ….” (Emphasis added). I find that, for the purposes of determining AISH eligibility under the Act , pain is part and parcel of the impairment, because impairments cause pain which limits a person’s activity and which, in turn, may limit his or her ability to earn a livelihood.

In the context of the evidence before the Appeal Panel, pain is not an irrelevant consideration. [ 59 ] The relevance of pain management to the question to be determined by the Appeal Panel is affirmed by Section 5(1)(iii) of the General Regulation , which provides that the Director may refuse a benefit for which an applicant is eligible if, in his or her opinion, the applicant has “failed to make use of appropriate … rehabilitative measures ….” [ 60 ] The substance of the Applicant’s objection about pain management does not give rise to an issue about irrelevant factors, but statutory

interpretation. [ 61 ] The Appeal Panel’s decision transparently and intelligibly reviewed the Applicant’s medical records. The record includes the Advocate’s submissions, which the decision canvasses and addresses. The Appeal Panel’s conclusion that the Applicant can no longer perform certain types of manual employment is amply supported by the medical evidence. The Appeal Panel also had before it the evidence of the Applicant that his physician had recommended a pain management clinic, that he had not followed through with his appointment, and that he had not taken pain medication for three months.

While the Applicant also advised that his physician had told him that the pain medication was “very hard on his body”, the evidence with respect to his failure to pursue treatment at the pain management clinic supports the Appeal Panel’s conclusion that the Applicant’s failed to pursue available treatments. And further, the ground of pain management itself was within the Appeal Panel’s jurisdiction to consider and, as such, on its own supports the Appeal Panel’s decision. [ 62 ] The Appeal Panel’s decision is therefore transparent, intelligible and justifiable.

While the outcome is perhaps not the only outcome that would have been supported by the evidence, it falls within the range of acceptable outcomes which are defensible in light of the facts and law. It is reasonable to require, before deciding that an applicant meets the qualifications for receiving AISH benefits, that he first avail himself of physician-recommended treatment. VIII. Conclusion [ 63 ] The application is dismissed. [ 64 ] As the Respondent was incorrectly identified in the style of cause on the Originating Application, I also direct that the style of

cause be amended by substituting “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 ” for the Respondent “Citizens’ Appeal Panel of the Assured Income for the Severely Handicapped and Her Majesty the Queen in Right of the Province of Alberta as Currently Represented by the Minister of Alberta Seniors, though transitioning to the Minister of Alberta Human Services”. [ 65 ] If parties cannot agree on costs, they may be spoken to within 30 days of these reasons.

Heard on September 5, 2013 . Dated at Edmonton, Alberta on September 17, 2013. Russell Brown J.C.Q.B.A. Appearances: Philip G. Lister, QC Philip G. Lister Professional Corporation for the Applicant Susan N. Turner Alberta Justice and Solicitor General for the Respondent Nicholas R. Jeanes, Student-at-Law Bennett Jones LLP for the Appeal Panel