Director, Assured Income for the Severely Handicapped Program Delivery Services Applicant - v. -, 2013 ABQB 677

Court of Queen ’ s Bench of Alberta Citation: Alberta (Director of Assured Income for the Severely Handicapped) v. Januario, 2013 ABQB 677 Date: 20131118 Docket: 1303 02281 Registry: Edmonton Between: Director, Assured Income for the Severely Handicapped Program Delivery Services Applicant - and - Manuel Januario Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Russell Brown _________________________________________ ______________ I.

Introduction [ 1 ] The Respondent Manuel Januario applied for Assured Income for the Severely Handicapped (AISH) benefits under the Assured Income for the Severely Handicapped Act , SA 2006, c A-45.1 (the “ Act ”), on January 29, 2008. His application was denied by the Director, Assured Income for the Severely Handicapped Program Delivery Services (the “Director”) on May 28, 2008. [ 2 ] For two years thereafter, Mr Januario persisted, unsuccessfully, in attempting to secure AISH benefits by submitting additional medical and non-medical information.

In successive decisions and administrative reviews issued July 18, 2008, January 20, 2009, August 26, 2009, December 2, 2009, and January 13, 2010 the Director or the Director’s delegate found that Mr Januario did not have a “severe handicap” as that term is defined in the Act , and that he was therefore ineligible to receive AISH benefits. Mr Januario

appealed several of those decisions to the Appeal Panel established under the Applications and Appeals (Ministerial Regulation ), AR 89/2007 (the “ Ministerial Regulation ”), but was again denied AISH benefits in Appeal Panel decisions issued February 24, 2009 and March 29, 2010. [ 3 ] Then, on August 3, 2010, Mr Januario applied again for AISH benefits. He submitted, inter alia , a letter from his physician Dr Donald Chan dated August 2, 2010. The Director’s delegate wrote Mr Januario on August 11, 2010, advising that no eligibility determination would be made until he provided “new” information.

The Director said that the information he had provided on August 3, 2010, including Dr Chan’s letter, was not “new” information. “Since there is no new information”, the Director concluded, “no new decision will be made ....” [ 4 ] Mr Januario appealed to the Appeal Panel. On December 14, 2010, the Appeal Panel (1) found that the Director’s delegate’s letter of August 11, 2010 constituted a new decision denying AISH benefits, (2) reversed it, and (3) found that Mr Januario’s condition met the statutory definition of severe handicap thereby entitling him to AISH benefits.

I shall refer to this decision of the Appeal Panel as the “eligibility decision”. [ 5 ] The Director did not apply for judicial review of the eligibility decision. [ 6 ] The Director’s delegate then advised Mr Januario that the effective commencement date for his AISH benefits would be August 1, 2010. The Director later confirmed this decision upon an administrative review. [ 7 ] Mr Januario appealed the Director’s decision to set the commencement date for AISH benefits at August 1, 2010, seeking instead a commencement date corresponding to his original application in January, 2008.

On March 7, 2011, the Appeal Panel upheld the Director’s decision as to the commencement date. Mr Januario complained to the Alberta Ombudsman who recommended a re- hearing, which occurred on December 3, 2012. On January 4, 2013, the Appeal Panel determined the commencement date for Mr Januario’s AISH benefits to be March 26, 2008. I shall refer to this decision of the Appeal Panel as the “commencement date decision”. [ 8 ] The Director applies for judicial review of the commencement date decision.

Specifically, I am invited to quash the commencement date decision, which would effectively restore the Director’s decision setting the commencement date for Mr Januario’s AISH benefits at August 1, 2010. II. Background The Eligibility Decision [ 9 ] Although it is the commencement date decision (and not the eligibility decision) which is under judicial review, the eligibility decision forms part of the context in which the Appeal Panel later determined the starting point for AISH benefits. It therefore merits recounting.

Among the Appeal Panel’s findings of fact were the following: ... [Mr Januario] suffers from 1) Cervical Spondylitic Myelopathy, 2) Type 2 Diabetes Mellitus with Neuropathy and mild Mephropathy and 3) Epilepsy. There are other tertiary diagnoses as well, but the 3 primary diagnoses are what causes [Mr Januario] the most concern and the greatest physical disability. The conditions are considered permanent and severe by [Mr Januario’s] family doctor, Dr. Donald Chan, who has seen [Mr Januario] for a period of about 20 years. ... In the letter from Dr.

Chan, dated August 2, 2010 he states [Mr Januario] has “attained maximum medical improvement.” In Dr. Chan’s opinion, [Mr Januario] is considered permanently disabled and will not be able to work. His spondylitic condition will only worsen over time and the surgery [he] has had has not provided the desired resolution. Dr. Chan also stated in the August 2, 2010 letter “there is no other medical treatment available except ongoing medical management with pharmacological agents.” ...

The Department’s Representative asked the Appeal Panel to please take into consideration the previous Appeal Panel’s finding of March 22, 2010. [ 10 ] I take the reference to a prior Appeal Panel decision of March 22, 2010 as intending to refer to the decision of March 29 (and not March 22), 2010.

The hearing (but not the decision) had occurred on March 22. [ 11 ] After reciting the Act ’s definition of “severe handicap”, and stating that “the Panel has considered the merits of the entire package”, the Appeal Panel gave reasons: A recent MRI report (September 2, 2010) indicates [Mr Januario] has further degenerative changes occurring in his spine. This is not reversible and will likely continue as [Mr Januario] ages.

The Panel places substantial weight on Dr. D. Chan’s letter dated August 2, 2010 in which he states quite clearly that [Mr Januario] can no longer work. Dr. Chan also states [Mr Januario] has “reached maximum medical improvement” and that there is no other known medical treatment available. The Panel, in reversing the Director’s decision, finds this letter from a doctor who has been [Mr Januario’s] doctor for 20 years, to be very persuasive.

Mr Januario has had surgery which has not produced the desired outcome and degenerative changes are occurring; he continues to have problems with seizures in spite of attempts at regulating them by drug treatment; his diabetes has progressed and is causing nerve (Neuropathy) and kidney (Nephropathy) problems .... The Panel finds [Mr Januario’s] condition is permanent, he has been compliant with the prescribed treatment and no further remedial therapy is available that would materially improve [his] ability to earn a livelihood and this fulfills the definition of having a severe handicap as set out in [the Act ].

In Dr. Chan’s letter, he summarizes the fact the combination of the three medical conditions the Appellant suffers from causes the Appellant to be unable to earn a livelihood and there is no available treatment that has not been tried. The Panel agrees the combination of these three conditions together with [Mr Januario’s] condition being permanent with no remedial therapy available that would materially improve [his] ability to earn a livelihood meets the definition of severe handicap as defined in [the Act ]

Section 1 (

i) and 3(3) . The Commencement Date Decision [ 12 ] The Appeal Panel’s commencement date decision included an extensive account of “preliminary matters” which explained that the hearing had been adjourned twice.

The first adjournment was said to have been granted for Mr Januario to review his records “in order to support his claim that the commencement date ... did not follow legislation and to substantiate the date all relevant medical information had been provided to the AISH Department.” The second adjournment was granted “in order for complete medical information to be included in the appeal package and [for] both parties to provide the legislation and policy in effect at the time of [the eligibility decision].” [ 13 ] The commencement date decision then recounted, inter alia , the following: 9. [Mr Januario] provided the Appeal Panel and the Departmental Representative with a copy of the Policy Manual Text Amendments (2012).

In reference to the commencement date of benefits, a policy revision dated April 13, 2012 “revised [the] commencement date from date of Assessment interview to date complete information to support decision is submitted.” 10. The Department Representative reviewed the revised policy amendments provided by [Mr Januario] and acknowledged her awareness of this revision. 11. The Department Representative stated the AISH program is governed by the AISH Act and AISH Regulations. She stated the policy is [the] Department’s

interpretation of the Legislation to help guide specific day to day decisions. Policy explains steps to help the Director manage specific situations regarding AISH clients. This includes commencement date. 12. In the Appeal

Summary, the Department Representative specifically addressed the commencement date of benefits when an appeal panel has reversed the Director’s decision and does not provide a commencement date. In these cases under the current policy, the commencement date is determined to be the first of the month when complete information supporting the decision to provide records was received. She added the Department policy in effect at the time of [Mr Januario’s] eligibility stated the commencement date is the date at which time the eligibility assessment was conducted.

However, she stated in a “general” case of eligibility, the commencement date would be the date when the Eligibility Assessment was conducted and all medical information confirming a severe handicap had been received. The Department Representative stated the intent of the policy is to create equity and consistency in adjudication of AISH applications. 13. In regard to the Appellant’s commencement date, the Department Representative stated that at the time of the eligibility assessment, the medical information received did not meet the criteria of a severe handicap according to AISH Administrators. ... 15.

In response to an inquiry from [Mr Januario], the Minister D.

Hancock states “On April 13, 2012, the policy related to the general commencement date for AISH benefits changed from ‘the first of the month in which the approved applicant completed the AISH Eligibility Assessment” to “the first of the month in which complete information supporting the decision to provide benefits was received.” The Minister then goes on to write “[P]rior to October 2008, a standard commencement date policy was not in place; however, the requirement that all AISH Program eligibility criteria be met before the commencement of benefits has been in place during the entire period of [Mr Januario’s] inquiry. [ 14 ] The Appeal Panel’s decision to reverse the Director’s decision and to set the commencement date for AISH benefits at March 26, 2008, was supported with the following reasons: 1.

The Appeal Panel acknowledges that legislation does not address the date of commencement of AISH benefits. The Department implements the AISH Act and Regulation through Policy (which is the Department’s

interpretation of legislation) and has set policy regarding commencement of AISH benefits when an appeal panel rules on medical eligibility and does not specify a commencement date. 2. Department Policy in effect at the time [Mr Januario] was approved for benefits, states the commencement date to be the date of the assessment interview as indicated in the Policy Manual Text Amendments (2012) document.

3. In his correspondence with [Mr Januario], the Minister addressed the Policy change effective April 13, 2012 of the commencement date for AISH benefits from “the first of the month in which the approved applicant completed the AISH Eligibility Assessment” to “the first of the month in which complete information supporting the decision to provide benefits was received.” The Minister acknowledges in his correspondence that prior to October 2008, a standard commencement date Policy was not in place. 4.

The Appeal Panel had regard for comments and observations in the AISH Eligibility Assessment interview dated March 26, 2008 and Dr. Chan’s letter dated February 28, 2011 which states [Mr Januario] “has been permanently disabled from his conditions since March 2008 ...” Based on these documents, the Appeal Panel finds merit in [Mr Januario’s] argument that his medical condition met the medical eligibility criteria at the time of the AISH Eligibility Assessment interview. 5.

Recognizing the Appeal Panel is not bound by Department Policy, the Appeal Panel finds the Policy in effect at the time of the decision to accept [Mr Januario’s] medical eligibility is an important factor and should be applied in this case. [ 15 ] As the Appeal Panel specifically referred to “comments and observations in the AISH Eligibility Assessment interview document dated March 26, 2008 and Dr.

Chan’s letter dated February 28, 2011” (which I will refer to as “Dr Chan’s 2011 letter”) I relate the contents of those documents: The AISH Eligibility Assessment of March 26, 2008 [ 16 ] The AISH Eligibility Assessment stated: Dr. Donald Chan has been treating this man for about 15-20 years and completed the [AISH] medical on his behalf. Dr. Chan states this man is suffering from the following medical condition/s: EPILEPSY, DIABETES MELLITUS, SEVERE PERIPHERAL DIABETIC NEUROPATHY ... Manuel is also suffering from the following medical problems/symptoms: - He has problems walking, sitting and lifting.

Because of the diabetic Neuropathy he can’t hold any amount of weight. He has apparently broke several dishes now using paper plates. - At present he is also having bowel problems, which is related to the problems he is presently having. - Manuel suffers from chronic headaches .... - Manuel states that his entire body aches all over. It is mainly in the muscles and the joints. - He also states that he suffers from muscle weakness. If does not keep moving and sitting or he would not be able to move [ sic ]. He also has the muscle twitching which starts in the arms and then it moves to the legs.

Eventually it moves over the entire body. ... - Apparently he has only recently started to have the seizures which started in October of last year. - He has problems with chronic fatigue. Manuel also suffers from numbness in the calves of the legs and his abdomen and chest area. ... TREATMENT AND REHABILITATION He is presently taking medications on a daily basis for his present symptoms. His doctor may change the medications accordingly. ... At this point in time he is not on any other treatment till the specialist and his family doctor are able to make a proper diagnosis. EFFECTS OF THE DISABILITY ...

He tries to walk a bit when he can, but for the most part he has trouble even when walking at the present time. EDUCATION/EMPLOYMENT AND TRAINING Manuel completed his grade 12 and was taking some post secondary through GMCC College. Manuel was last employed November 11 of 2007. He was working ... as a manager. He apparently suffered a seizure at work. He had a second seizure but prior to it happening he called his boss to call him an ambulance. His boss advised that in December they were

terminating his contract. He was still only short of three months with the firm. ... OBSERVATIONS & ADDITIONAL COMMENTS : As he was walking down the hallway to the worker’s office he was totally exhausted and had to just rest for about five minutes before the interview could begin. He was also using a cane to assist him with his walking and balance. Even with very minimal walking, he appeared to be in a great deal of pain. During the interview, he had to get up several times and walk around the room so he would not become too stiff.

He answered all the questions to the best of his ability. (Emphasis in Original.) [ 17 ] The reference in the AISH Eligibility Assessment to Dr Chan’s description of Mr Januario’s medical conditions draws from the AISH Medical Examination form completed by Dr Chan on February 2, 2008, in which he reported Mr Januario’s primary condition as epilepsy, his secondary condition as diabetes mellitus with neuropathy, and his tertiary condition as severe peripheral diabetic neuropathy.

Dr Chan’s report also described Mr Januario as being “unable to operate [a] motor vehicle or machinery”, and opined that he would remain unable to do so until he is “seizure-free for at least 6 months to 1 year”.

It said Mr Januario was “severely limited in his mobility due to his conditions ... [and] is unable to work or volunteer as a consequence.” It further opined that Mr Januario’s neuropathy is “probably permanent”, and “may worsen over time”, and that the duration of Mr Januario’s epilepsy was “indefinite” in that it “may possibly be stabilized over time to allow some return to function.” Various possible treatments were described, as it was Dr.

Chan’s “hop[e]” that they would “stabilize his conditions and lessen his disability.” Dr Chan’s Letters [ 18 ] Dr Chan’s 2011 letter stated: This is a brief note to confirm that Mr Januario has been permanently disabled from his conditions since March 2008. The last letter that I provided to [AISH] was dated August 1, 2010, but that does not imply at all that he was disabled from this date.

This was simply the date the letter was written. [ 19 ] Dr Chan’s reference to his “last letter ... dated August 1, 2010” is undoubtedly a typographical error, and should be taken as referring to his letter of August 2, 2010 (which I will refer to as “Dr Chan’s 2010 letter”). This letter, upon which the Appeal Panel relied in its eligibility decision, stated As stated in previous correspondence to AISH, Mr. Januario suffers from

(1) Cervical Spondylitic Myelopathy,

(2) Type 2 Diabetes mellitus with Neuropathy and mild Nepropathy,

(3) Epilepsy,

(4) Acid Peptic Disease and GERD, and

(5) Multinodular Goitre. Mr. Januario is disabled as a result of the combination of the first three diagnoses listed. His conditions are unfortunately considered permanent. He has completed all of his physical rehabilitation and has attained maximum medical improvement. He has been considered permanently disabled from his conditions, and has been and will be unable to return to gainful employment as a result. His cervical spondylitic condition may unfortunately progress/deteriorate in the future, and he may require further surgical intervention to stabilize his condition.

Surgery has been unable to provide him full resolution of his condition. There is no other medical treatment available to Mr. Januario except ongoing medical management with pharmacological agents. ... III. Applicable Statutory and Regulatory Provisions [ 20 ] The pertinent statutory and regulatory provisions are reproduced in Niyonkuru v Alberta (Director of Assured Income for the Severely Handicapped ), 2013 ABQB 542 at paras 7-9 [ Niyonkuru ]. In brief, the Act provides that the Director may provide certain benefits under

Section 3 to applicants who demonstrate a “severe handicap”, as it is defined in

Section 1(i). That definition reads: … 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. [ 21 ]

Section 10 provides that the Minister responsible may by regulation establish appeal panels to hear appeals from persons affected by the Director’s decision. [ 22 ]

Section 3 of the Ministerial Regulation provides for the establishment of an appeal panel, while

Section 5 restricts its decisions to decisions that the Director would have authority to make. The effect of this provision is to confine the Appeal Panel’s provision of benefits to applicants who have a “severe handicap”, as the Act defines it. IV. Issue [ 23 ] The issues to be decided are:

1. What standard of review must I apply to the Appeal Panel’s commencement date decision? 2. Does the Appeal Panel’s commencement date decision meet the applicable standard of review? [24] The Director’s argument, canvassed below, that the Appeal Panel fettered its discretion by adopting departmental policy raisesan additional issue: where within the analytical framework for judicial review am I to consider arguments about fettering discretion? Iwill address this after determining the standard of review, and before considering whether the commencement date decision met theapplicable standard. V.

Standard of Review [25] Both the Director and Mr Januario submit that I must review the Appeal Panel’s decision for its reasonableness, and not itscorrectness. [26] I agree.

In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] at para 62, the majority described how,in determining the appropriate standard of judicial review, the Court must first “ascertain whether the jurisprudence has alreadydetermined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question.” [27] Three decisions – two of this Court and one of our Court of Appeal – have previously considered the standard of review to beapplied to the determination by an appeal panel of whether an applicant for AISH benefits can demonstrate a “severe handicap” asstatutorily defined. (GR v Alberta (Family and Social Services), 1999 ABCA 106 [GR]; Alberta (Director of Assured Income for theSeverely Handicapped v BGA, 2013 ABQB 232; and Niyonkuru).

In GR and Niyonkuru, this entailed applying the analysis outlined inPushpanathan v Canada (Minister of Citizenship and Immigration), (SCC), [1998] 1 SCR 982. In all three decisions,the standard of review was determined to be that of “reasonableness” (or, in GR, patent unreasonableness – a category of review whichDunsmuir later subsumed into the more general category of reasonableness.) [28] The commencement date decision implicitly required the Appeal Panel to decide when Mr Januario was first afflicted with asevere handicap.

This is the same question addressed by the appeal panel decisions under review in GR and Niyonkuru. I therefore findthat the jurisprudence has already satisfactorily determined the degree of deference to be accorded to the commencement date decision asthat of reasonableness. VI.

A Preliminary Issue: Fettering Discretion, and theReasonableness Analysis [29] As I will canvass below, one of the arguments advanced by the Director is that the Appeal Panel fettered its discretion byallowing an AISH departmental policy to determine the outcome on the commencement date decision. [30] This raises an issue of where, within the analytical framework for judicial review, I ought to consider whether the AppealPanel fettered its discretion.

Fettering discretion has traditionally been understood as a nominate ground of judicial review, associatedwith review for abuse of discretion. (Maple Leaf Farms v Government of Canada, (SCC), [1982] 2 SCR 2; StemijonInvestments Ltd v Canada (Attorney General), 2011 FCA 299 [Stemijon]; and JW v Alberta (Victims of Crime Program Committee),2013 ABQB 212 [JW v Alberta] at para 35: “a statutory delegate who fails to make a merit-based decision disregards the will of thelegislature and acts unlawfully.”) The difficulty is that, while the nominate grounds associated with abuse of discretion have beenresolved on correctness grounds, fettering discretion as a ground of review involves interpreting an administrative tribunal’s enabling(“home”) statute, which typically (as here) requires reviewing courts to show deference.

When conducting a reasonableness review,then, should a reviewing court employ a discrete correctness analysis to the objection that the tribunal fettered its discretion?

Or is thatground of review now infused with the reasonableness standard of review that applies to the tribunal’s reasons? [31] This is not a new dilemma. (David J Mullan, “Developments in Judicial Review of Administrative Action, 2011-12 – AMiscellany” (2013) 26 Can J Admin Action 87.) It was evident in the judgment of Dickson J (as he then was) in Canadian Union ofPublic Employees, Local 963 v New Brunswick Liquor Corporation, (SCC), [1979] 2 SCR 227 [CUPE].

On one hand,Dickson J (at 236-37) urges restraint upon reviewing courts, except where the decision under review is (in pre-Dunsmuir terminology)patently unreasonable. On the other hand, Dickson J also recognized (at 237) the existence of specific grounds of error, citing ServiceEmployees’ International Union v Nipawin District Union Hospital, (SCC), [1975] 1 SCR 382 at 389.

In light of theprevalence of reasonableness review as a result of Dunsmuir and of the post-Dunsmuir jurisprudence (which I canvass below) on theconduct of a reasonableness review, reconciling a reasonableness review with a review for fettering discretion (or for other grounds ofabuse of discretion) is now more pressing. [32] Although our Court of Appeal has not yet expressly considered this question, its recent practice has been to consider fetteringarguments within the reasonableness review. (United States of America v Cail, 2009 ABCA 345 [Cail] at paras. 29-31.) Cail leavessome ambiguity, however, as within the Court’s reasonableness review (which was of the Minister of Justice’s decision to surrender theappellant unconditionally to the United States under

Section 40 of the Extradition Act, SC 1999, c 18) it found (at para 31) that “he didnot incorrectly fetter his discretion.” (Emphasis added.) [33] Considering fettering arguments within a reasonableness review is, however, also consistent with the statement of McLachlinCJ in Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19 [Dr Q] at paras 22-25: To determine standard of review on the pragmatic and functional approach, it is not enough for a reviewing court to interpret an isolated

statutory provision relating to judicial review. Nor is it sufficient merely to identify a categorical or nominate error .... Rather, thepragmatic and functional approach calls upon the court to weigh a series of factors in an effort to discern whether a particular issuebefore the administrative body should receive exacting review by a court, undergo “significant searching and testing” ... or be left to thenear exclusive determination of the decision-maker. These various postures of deference correspond, respectively, to the standards ofcorrectness, reasonableness simpliciter and patent unreasonableness.

Much as the principled approach to hearsay ... eclipsed the categorical exceptions to the hearsay rule ..., the pragmatic and functionalapproach represents a principled conceptual model which the Court has used consistently in judicial review. Just as the categorical exceptions to the hearsay rule may converge [with the principled approach to hearsay], the categorical andnominate approaches to judicial review may conform to the result of a pragmatic and functional analysis. ... [A]s Binnie J. recognized inMount Sinai Hospital Center v.

Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, at para. 54, underthe pragmatic and functional approach, even “the review for abuse of discretion may in principle range from correctness throughunreasonableness to patent unreasonableness”. The nominate grounds, language of jurisdiction, and ossified

interpretations of statutoryformulae, while still useful as familiar landmarks, no longer dictate the journey.

For this reason, it is no longer sufficient to slot a particular issue into a pigeon hole of judicial review and, on this basis, demandcorrectness from the decision-maker. [34] Recent decisions of the Federal Court of Appeal have applied Dr Q to require matters that traditionally represented nominategrounds for review associated with abuse of discretion be considered for reasonableness. (Stemijon; and Canada (Minister of NationalRevenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250.) [35] I am satisfied that Dr Q resolves the question of where, within the analytical framework for judicial review, I am to addressthe Director’s argument about fettering discretion.

Since there appears to be little caselaw directly on point, and none from Alberta, it isworth making explicit the conclusion to be drawn from Dr Q. Dr Q marks a substantial shift in the law of how, and where within theanalytical framework of judicial review, a fettering argument is to be considered by a reviewing court. The fettering by an administrativetribunal of its discretion was once a stand-alone nominate ground of judicial review within the category of abuse of discretion. If proven,it automatically invalidated the tribunal’s decision.

Now, however, the standard of review to be applied to the tribunal’s reasonsthemselves also governs the standard by which the Court ought to consider a fettering argument. [36] In effect, this subsumes my consideration of the Director’s fettering arguments into my review of the reasonableness of theAppeal Panel’s commencement date decision. Doing so is also consistent with Dunsmuir.

While fettering discretion, like any otherground of abuse of discretion, has traditionally been understood as jurisdictional in nature (David P Jones & Anne S de Villars, Principles of Administrative Law, 5th ed. (Carswell, 2009) at 175, the Supreme Court in Dunsmuir confined true questions of jurisdictionor vires to “the narrow sense of whether or not the tribunal had the authority to make the inquiry.” This relegates the grounds of abuse ofdiscretion to review for errors of law. (Pastore v Aviva Canada Inc, 2012 ONCA 642 at para 25.) And, as to questions of law, inDunsmuir the Supreme Court also held (at paras 60 and 70) that, aside from questions of general law “that [are] ... of central importanceto the legal system as a whole”, a standard of reasonableness (and not correctness) should apply. [37] In other words, a finding that an administrative tribunal has fettered its discretion in deciding a matter militates against afinding of reasonableness. [38] I stress that this aspect of my reasons for judgment is concerned solely with the nominate ground of judicial review ofwrongful fettering of discretion.

It is not necessary for me to determine whether Dr Q requires that all forms of abuse of discretion oughtto be subsumed into a court’s review of the administrative tribunal’s reasons for reasonableness. Indeed, it may be undesirable for areasonableness review to be so all-embracing, because it may not be so straightforward to reconcile a standard of reasonableness withcertain other traditional nominate grounds associated with abuse of discretion. A reasonableness standard seems ill-suited, for example,to review for bad faith (or an improper purpose, or acting under dictation).

How can it be said that the arbitrary and ill-motivateddecision under review in Roncarelli v Duplessis, (SCC), [1959] SCR 121 was merely unreasonable? Justice Randcertainly thought it was worse, much worse than that.

It was, he said (at 140), “just as objectionable as fraud or corruption.” [39] In any event, while Dr Q’s reach into the traditional nominate grounds associated with abuse of discretion may be all-encompasssing (for example, the Supreme Court has recently considered another traditional nominate ground, being a tribunal’s failureto take into account relevant factors, within a reasonableness analysis – see Antrim Truck Centre Ltd v Ontario (Transportation), 2013SCC 13 at paras. 53-56), I need not decide that here. VII.

Was the Commencement Date Decision Reasonable? [40] The Director is critical of the commencement date decision in two respects. First, it is criticized for failing to account for therecord that supported earlier determinations that Mr Januario did not have a severe handicap, and for relying instead upon the AISHEligibility Assessment and Dr Chan’s 2011 letter. Secondly, the Director submits that the Appeal Panel misdirected itself on the matterof departmental policy (1) by considering the wrong policy, and (2) by fettering its discretion in allowing the policy to determine theoutcome.

The Record [41] The Director says that the Appeal Panel, in reaching its commencement decision, “failed to make several critical findings offact, and made no reference to the plethora of medical and other information relevant to Mr Januario’s eligibility for AISH.” Byconfining its review of the record to the AISH Eligibility Assessment and Dr Chan’s 2011 letter, the Appeal Panel – in the Director’ssubmission – misdirected itself.

[ 42 ] Specifically, the Director says that those two documents were insufficient to support the commencement date of March 26, 2008. The Director’s reasoning here is that the commencement date decision necessarily entailed a determination of the point in time at which Mr Januario was first afflicted with a severe handicap. Because the AISH Elibility Assessment is incomplete in that several fields of information were not filled in, the Director says it cannot be taken as demonstrating that Mr Januario met the criteria for receiving AISH benefits at the time it was generated.

As to Dr Chan’s 2011 letter, the Director points out that it describes Mr Januario as having been “permanently disabled” since March 2008. The Appeal Panel ought, the Director says, to have explicitly considered whether being “permanently disabled” meets the statutory definition of “severe handicap” so as to entitle Mr Januario to AISH benefits running from that time. While the Director concedes that, in making that determination, the Appeal Panel was entitled to “place great weight” on Dr Chan’s letter of 2011, the Director maintains that more was required of the Appeal Panel.

It ought, the Director says, to have (1) reviewed the extensive record which had led earlier appeal panels to determine that Mr Januario had not been severely handicapped, and (2) explained why that record now supports a different outcome. [ 43 ] I disagree. [ 44 ] My determination that the standard of review to be accorded to the commencement date decision is one of reasonableness entails, as I explained in Niyonkuru , a respectful and deferential standpoint.

It signals that, as between the Appeal Panel and this Court, the Appeal Panel is – and is seen by the Legislature as being – better placed to decide questions relating to eligibility for AISH benefits (including the determination of the commencement date for such eligibility). As my colleague Wakeling J said in JW v Alberta at para 57 : “[t]he underlying principle justifying judicial restraint may be simply stated.

The legislature chose to assign primary responsibility to a statutory delegate and not a superior court.” [ 45 ] Setting aside the decision of the Appeal Panel in the name of unreasonableness should therefore not be undertaken lightly. [ 46 ] A deferential standpoint also accords with the Supreme Court of Canada’s directions on reviews for reasonableness.

It has described a reasonable decision as needing only to reveal “justification, transparency and intelligibility within the decision-making process”, and as falling “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” ( Dunsmuir , at para 47 ).

In Newfoundland Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 61 , [2011] 3 SCR 708 [ Newfoundland Nurses ], the Supreme Court described (at para 14) a review for reasonableness as an “organic exercise” in which the reasons are read together with the outcome in order to assess whether the result falls within “a range of possible outcomes”. Reviewing courts, in making that assessment, must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and law” (para 15).

This means, the Court explained, that reviewing courts are not confined to the reasons given by an administrative tribunal in assessing the reasonableness of its decision. If necessary, I may look beyond the decision, and “to the record” for the purposes of making that assessment. [ 47 ] Since I am not confined to the Appeal Panel’s reasons but if necessary also ought to consider the result and other possible outcomes in light of the record, it follows that the reasons themselves need not be the model of explanatory perfection.

The Supreme Court made this point explicitly in Newfoundland Nurses (at para 16 ): Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. … In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [ 48 ] This point was later reiterated by the Supreme Court in Construction Labour Relations v Driver Iron Inc , 2012 SCC 65 at para 3 : This Court has strongly emphasised that administrative tribunals do not have to consider and comment on every issue raised by the party in their reasons.

For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record is reasonable. [ 49 ] And, as to the Appeal Panel’s reasons themselves, I am to pay “respectful attention”, and to be cautious about substituting my own view of the proper outcome by designating omissions from those reasons as fatal. ( Newfoundland Nurses , at para 17 ). [ 50 ] A majority at the Supreme Court recently reiterated this deferential standpoint to the decisions of administrative tribunals in Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd , 2013 SCC 34 [ Irving Pulp & Paper ] at para 54: The board’s decision should be approached as an organic whole, without a line-by-line treasure hunt for error ( Newfoundland Nurses , at para 14 ).

In the absence of finding that the decision, based on the record, is outside the range of reasonable outcomes, the decision should not be disturbed. [ 51 ] The majority’s conclusion in Irving Pulp & Paper – that unless a decision, based on the record , is outside the range of reasonable outcomes – arguably goes further than Newfoundland Nurses in deferring to an administrative tribunal’s decision.

Whereas Newfoundland Nurses suggests that the administrative tribunal’s decision is to be affirmatively assessed for its reasonableness in light of the reasons and the record, Irving Pulp & Paper states that so long as the outcome is not unreasonable in light of the record, the decision should be taken as reasonable. I do not, however, read Irving Pulp & Paper as absolving me from reviewing the reasons at all and instead directing me to the record to see if it supports the outcome, howsoever that outcome was reached. Both the reasons for the decision and the record must be read and considered together.

All the direction to review the record signifies is that the law does not require the Appeal Panel’s reasons to contain a perfect account of each explicit analytical step leading to its conclusion. So long as the reasons, in light of the record, reveal – even if only in broad and general terms – enough for me to determine why it decided as it did and whether the outcome was reasonable, I ought to defer to the Appeal Panel. [ 52 ] It follows, therefore, that I disagree with the Director’s submission that the commencement date decision is made

unreasonable by the Appeal Panel’s failure to make reference to “the plethora of medical and other information relevant to Mr Januario’s eligibility for AISH”. Just as Newfoundland Nurses affirms that it is unnecessary for administrative tribunals to account for “all the arguments, statutory provisions, jurisprudence or other details that [I] would have preferred”, the Appeal Panel’s decision is not made unreasonable by its having failed to account for evidence put before it.

To reiterate, the questions to be answered - and with reference to the record before the Appeal Panel – are (1) am I able to understand why the Appeal Panel decided the commencement date as it did?; and, (2) did the Appeal Panel’s commencement date decision lead to a reasonable outcome? [ 53 ] The commencement date decision began by noting the statutory silence as to the commencement date of AISH benefits for a successful applicant, and that this has been addressed by policy.

It also notes evidence (in the form of correspondence from the Minister to Mr Januario) that there had been a policy change effective April 13, 2012, and adds that the Appeal Panel “has had regard” for the AISH Eligibility Assessment and of Dr Chan’s 2011 letter, and reproduces his statement that Mr Januario “has been permanently disabled from his conditions since March 2008.” The Appeal Panel then states, “ based on these documents , the Appeal Panel finds merit in [Mr Januario’s] argument that his medical condition met the medical eligibility criteria at the time of the AISH Eligibility Assessment Interview.” (Emphasis added.) Finally, the Appeal Panel notes – accurately – that it is not bound by Department Policy, but adds that the policy in effect at the time of the eligibility decision “is an important factor and should be applied in this case”. [ 54 ] I will deal with matters relating to policy below.

For now, it suffices to say that these reasons demonstrate that the Appeal Panel’s decision was based (“based on these documents”) upon its acceptance of the evidence contained in Dr Chan’s 2011 letter, taken together with the AISH Eligibility Assessment. The AISH Eligibility Assessment, it will be recalled, cited Dr Chan’s statement in his AISH Medical Examination form that Mr Januario suffered from epilepsy, diabetes mellitus and severe peripheral diabetic neuropathy.

While the AISH Eligibility Assessment also recorded Dr Chan’s opinion that Mr Januario’s condition was “probably permanent”, it also stated his “hope” that various possible treatments that he described would stabilize and reduce Mr Januario’s disability. Dr Chan’s 2011 letter, as I have also recounted above, referenced his 2010 letter, and affirmed that Mr Januario had been permanently disabled from those conditions since March 2008.

Dr Chan’s 2010 letter had reiterated previous correspondence describing Mr Januario’s conditions (including epilepsy and diabetes mellitus with neropathy), advising that they were permanent, and advising that physical rehabilitation and surgery have failed to resolve this condition. [ 55 ] As to the Director’s submission regarding the missing fields in the AISH Eligibility Assessment, a review of the record discloses that those missing fields were never raised as a concern by the Director or at any prior Appeal Panel hearings.

The Appeal Panel’s reliance upon the AISH Eligibility Assessment cannot be impugned on this basis. [ 56 ] In light of the Board’s reference to these documents and their contents, I am able to understand why the Board decided the commencement date decision as it did. Mr Januario, who had presented medical evidence of consistent medical conditions from 2008 to 2010 had now exhausted all treatment options such that his conditions could now be said to be permanent. For this reason, the Appeal Panel’s eligibility decision concluded that he was severely handicapped within the meaning of the Act .

But for how long had he been severely handicapped? That is, at what point could Mr Januario’s condition have been said to be (as

Section 1 (

i) of the Act requires) “likely to continue to affect [him] permanently because no remedial therapy is available”? The continuity of Mr Januario’s reported conditions as between the AISH Eligiblity Assessment and Dr Chan’s 2010 letter illuminates the commencement date decision’s reference to the AISH Eligibility Assessment and Dr Chan’s 2011 letter.

It is clear that, in light of (1) that continuity; and (2) the description contained in Dr Chan’s 2010 letter of how all prescribed treatment and surgery had failed, the Appeal Panel in its commencement date decision accepted Dr Chan’s 2011 letter – as it was entitled to do – as affirming that, with the benefit of hindsight, Mr Januario had been severely handicapped since he was first medically assessed for the purposes of determining AISH eligibility. The commencement date decision is thus both transparent and intelligible within the meaning of Dunsmuir .

Its conclusion, that Mr Januario was severely handicapped within the meaning of the Act from March 26, 2008, was supported by evidence which the Appeal Panel was entitled to accept. [ 57 ] I also find that this reasoning led the Appeal Panel to a justifiable and therefore reasonable outcome in its commencement date decision. It must be borne in mind that the mere fact that the commencement date decision effectively backdated Mr Januario’s eligibility for AISH benefits does not, in itself, make that decision unreasonable. The Appeal Panel’s eligibility decision confined itself to the question of eligibility.

This necessitated a later, discrete determination by the Director (and, if appealed, then by the Appeal Panel) as to the commencement date of AISH benefits. That additional step inherently contemplated the possibility that the Appeal Panel might accept evidence leading it to conclude that Mr Januario was severely handicapped prior to the favourable eligibility decision.

Otherwise, the process of deciding the commencement date would have been otiose. [ 58 ] In reaching back to a commencement date that predates the eligibility decision, was the Appeal Panel bound to account for the entire record of Mr Januario’s earlier unsuccessful applications and appeals? It was not.

The Appeal Panel’s implicit rejection of earlier unfavourable decisions on Mr Januario’s eligiblity is amply justified by its explicit regard for Dr Chan’s 2011 letter which, taken together with his 2010 letter, supported a finding that Mr Januaro’s conditions, from which he had suffered throughout, had been permanent from the outset because in the interim all attempted treatments had failed. The Appeal Panel found this persuasive, and was entitled to do so.

It was therefore reasonable for the Appeal Panel to conclude that Mr Januario’s condition had met the statutory definition of being severely handicapped all along. [ 59 ] Even if I am wrong in concluding that the Appeal Panel did not have to explain why Mr Januario is now to be taken as having been severely handicapped throughout a period of time during which prior decisions had found otherwise, a review of the record, including those prior decisions, affirms the reasonableness of the outcome. [ 60 ] For example, the Director drew the Court’s attention to two documents which, it is submitted, the Appeal Panel ought to have explicitly considered.

Both documents are “Medical File Reviews”, which are internal AISH memoranda of a physician’s observations of an applicant’s medical evidence and opinion of whether the applicant has a “severe impairment”. The first, prepared on July 28, 2009, concluded that “there is likely therapy available to assist with the diabetes and recovery from surgery”.

The second, prepared on December 31, 2009, opined that “[w]ith optimal medical management ... his function could improve to allow a chance at gainful employment ....” In other words, in 2009 it was still thought that there were treatment options available to Mr Januario.

[ 61 ] This evidence shows why Mr Januario was not considered to have a severe handicap at an earlier stage: his condition was not thought to be permanent, because there were still believed to be treatment options available to him that might alleviate his conditions. The passage of time proved otherwise.

It is therefore reasonable for the Appeal Panel, again with the benefit of hindsight, to conclude that Mr Januario had a severe handicap all along. [ 62 ] The commencement date decision is similarly reconciled with the series of earlier unfavourable decisions of the Director and Appeal Panel regarding Mr Januario’s eligibility.

The Director’s decision of July 18, 2008 relied upon medical evidence that it is “unknown at this time how long [Mr Januario] will be off work” and that his “medical conditions must permanently prevent [him] from earning a livelihood.” (Emphasis added.) The Director’s decision of January 20, 2009 similarly concluded that “it is too soon to tell if [Mr Januario’s] conditions will permanently prevent [him] from earning a livelihood in the future”, adding “the outcome of this treatment is not yet known”. (Emphasis added.) The Director’s decision of August 26, 2009, requested further information of Mr Januario, asking for reports from his surgery, and all consultation reports, laboratory results and clinical notes of Dr Chan going back two years – all of which makes sense, given the “wait and see” approach of the earlier decisions.

The Director’s decision of December 2, 2009 reiterated this request, adding to it a request for rehabilitation reports from Glenrose Hospital.

And, the Director’s decision of January 13, 2010 concedes that Mr Januario’s diabetes and epilepsy are permanent medical conditions, but adds that “what has not been substantiated is that these conditions are so severe that they will permanently prevent you from earning a living in any type of work” and that “it appears that you may have the potential, in the future, to retrain or work in sedentary employment.” [ 63 ] In the first two of these decisions, the Director concluded that it was too early to tell whether Mr Januario’s conditions would prove to be permanent.

The next two decisions requested further medical evidence, presumably with a view to determining whether permanence is demonstrated. And the last decision conceded that the conditions were permanent, but demurred as to whether they resulted in a severe handicap that was permanent.

Taken together, and in view of the evidence which the Appeal Panel specifically recounted in the commencement date decision, it is evident that, in view of the evidence regarding the failure of all treatment options, the Appeal Panel could reliably conclude that Mr Januario had been severely handicapped all along. [ 64 ] The previous decisions of the Appeal Panel tell a similar story. On February 24, 2009, the Appeal Panel was clearly of the view that it would be premature, until a longer post-surgical period of time had passed, to conclude that Mr Januario is severely handicapped.

It referenced Mr Januario’s neurosurgeon’s report that a further period of rehabilitation would be required, and that he could not determine how long Mr Januario would remain off work.

In its March 29, 2010 decision, the Appeal Panel said that it “was not convinced that the Appellant has no further options for remedial therapy that may enable him to earn a livelihood.” Again, in light of the commencement date decision’s reliance on Dr Chan’s 2011 letter (and, by necessary implication, Dr Chan’s 2010 letter) which confirms that no such options subsisted, the commencement date decision contains a reasonable outcome. [ 65 ] This record affirms the justifiability of the Appeal Panel’s commencement date decision.

It found, on evidence that it accepted, that Mr Januario was severely handicapped when he was originally assessed for eligibility for AISH benefits. While the record included previous contrary decisions of the Director and the Appeal Panel, the Appeal Panel’s reliance upon Dr Chan’s 2011 letter and the AISH Eligibility Assessment, taken together with his 2010 letter describing the failure of all treatment options since that original assessment, supports the reasonableness of the outcome.

Moreover, the Director’s and Appeal Panel’s previous unfavourable decisions were based substantially upon what they understood to be a subsisting possibility of improvement in Mr Januario’s conditions such that they were not permanent and therefore did not support a finding of a severe handicap. Dr Chan’s evidence, which the Appeal Panel accepted in its eligibility decision , was that no such possibility remained. Treatments had been tried, and they had failed.

Again, taking that evidence together with Dr Chan’s 2011 letter and the AISH Eligibility Assessment, it was reasonable for the Appeal Panel in its commencement date decision to conclude that Mr Januario had been severely handicapped from the time of his original assessment. The Policy [ 66 ] There remains the matter of the Director’s submissions regarding departmental policy.

It is useful at this point to review the Appeal Panel’s discussion in the commencement date decision regarding departmental policy. [ 67 ] The Appeal Panel recounted that: - the department representative acknowledged, in reference to the commencement date of AISH benefits, a policy revision dated April 13, 2012 which “revised [the] commencement date from date of Assessment interview to date complete information to support decision is submitted”; - the department representative explained that, at the time of the eligibility decision, the AISH benefits in a “general” case of eligibility would run from the date of the eligibility assessment and “all medical information confirming a severe handicap was received”; and - in response to an inquiry from Mr Januario, the Minister responsible had written that, on April 13, 2012, departmental policy relating to the general commencement date for AISH benefits changed from “the first of the month in which the approved applicant completed the AISH Eligibility Assessment” to “the first of the month in which complete information supporting the decision to provide benefits was received.” [ 68 ] The Appeal Panel’s reasons for the commencement date decision then: - acknowledged the legislative silence on the matter of the commencement date of AISH benefits; - concluded that the departmental policy in place at the time “stated the commencement date to be the date of the assessment interview”;

- noted the Minister’s correspondence; - acknowledged that the Appeal Panel is not bound by departmental policy; and - “finds the Policy in effect at the time of [the eligibility decision] is an important factor and should be applied in this case.” [69] The Director says that the Appeal Panel’s handling of departmental policy taints the commencement decision to the point ofunreasonableness in two respects: first, by considering the wrong policy; and secondly, by allowing the policy to determine theoutcome, thereby fettering the Appeal Panel’s discretion to decide the commencement date. [70] The only document before the Court purporting to be a departmental policy in respect of the commencement date for AISHbenefits was a document attached to a letter dated November 27, 2012 from an AISH unit supervisor to Mr Januario.

That policydocument provides that its intent is “[t]o create consistency and equity in the commencement of AISH benefits”, and that “[t]hecommencement date for AISH is generally the first of the month in which complete information supporting the decision to providebenefits was received.” (Emphasis added.) The document also provides that “[i]f an appeal panel overturns an eligibility decision madeby AISH, the commencement date is the date specified by the appeal panel”. [71] Mr Januario’s position is that this policy was not in place at the time of the eligibility decision, and the Director shouldtherefore not have applied it to fix the commencement date at August 1, 2010.

He says that the policy which the Director should haveapplied is that set out in the Minister’s letter. That letter, it will be recalled, described a change having been made to the general rule asto commencement date determination. That is, in 2012 the general rule changed from “the first of the month in which the approvedapplicant completed the AISH Eligibility Assessment” to “the first of the month in which complete information supporting the decisionto provide benefits was received.” [72] The Director says that it does not matter which policy applied at the time of the eligibility decision.

What is crucial, rather, isthe reference in that policy document (and in the Minister’s letter) to a general rule for setting the commencement date. The AppealPanel, the Director submits, appeared not to have appreciated that, irrespective of which policy was in force at the time of Mr Januario’seligibility decision, his case did not fall within the general rule. Rather, his matter fell within an exception, being where an appeal panelhas overturned the Director’s decision on eligibility.

In relying upon the general rule contained in the older policy, therefore, theDirector says that the Appeal Panel not only relied upon the wrong policy, but fettered its discretion by confining itself to a policy towhich it was not properly bound. [73] I will first consider the Director’s argument that the Appeal Panel fettered its discretion.

As this Court has previouslyobserved, the law permits administrative tribunals to adopt and use policies, even when they are “informal” policies which are notstatutorily authorized. (Skyline Roofing Ltd v Alberta (Workers’ Compensation Board, 2001 ABQB 624 at paras. 75-76.) “The law andcommon sense are not strangers. ... [A]dministrators may publish the results of internal assessments of the relative importance ofcompeting interests in predictable fact patterns.” (JW v Alberta at para 37.) Such policies serve salutary purposes, including achievingconsistency in decisions where many people are assigned to make decisions on similar or identical questions, such as whether anapplicant for AISH benefits has demonstrated a severe handicap. (Canada (Attorney General) v Mavi, 2011 SCC 30 at para 66); L’Hirondelle v Alberta (Minister of Sustainable Resource Development), 2013 ABCA 12 [L’Hirondelle] at paras 25-26.) Whereadministrative tribunals strictly adhere to such policies, however, their decisions can be impugned on the basis that they have fetteredtheir discretion. (L’Hirondelle, at para 26.) For that reason, our Court of Appeal has directed that administrative tribunals must have anopen mind when hearing arguments that a certain policy should not be applied to a particular case. (S(

M) v Alberta (Crimes Compensation Board (1998), 1998 ABCA 138 , 65 Alta LR (3d) 339, 160 DLR (4th) 567 (CA); and JW v Alberta at para 39.) [74] I find that the Appeal Panel did not fall into the error of fettering its discretion in its handling of the issue of departmentalpolicy. [75] The Appeal Panel did not decide the commencement date of Mr Januario’s benefits on the basis of departmental policy. As Ihave already found, the commencement date decision was expressly based upon Dr Chan’s 2011 letter and the AISH EligibilityAssessment.

It was only after concluding that Mr Januario’s argument as to the commencement date was meritorious (“the Appeal Panelfinds merit in the Appellant’s argument”) that it made any evaluation of departmental policy. And, in that later reference to departmentalpolicy, the Appeal Panel explicitly recognized that it was not bound by the policy.

Its statement that the policy was an “important factorand should be applied in this case”, simply affirmed the outcome which the Appeal Panel had already reached. [76] I also find that, in considering departmental policy, the Appeal Panel did not fall into error. [77] By way of explanation, the Minister’s letter to Mr Januario furnished sufficient evidence for the Appeal Panel to concludethat the policy in effect at the time of the eligibility decision was that AISH benefits would run from the first of the month in which theapproved applicant had completed the AISH Eligibility Assessment.

In considering this evidence, the Appeal Panel should not be takenas having missed the point about Mr Januario’s case falling into an exception to the general rule as to the commencement date for AISHbenefits. Indeed, the Appeal Panel explicitly acknowledged the departmental representative’s submission to that effect. Furthermore,the mere fact that the Appeal Panel was not bound, and knew that it was not bound, does not mean that evidence about the general ruleapplicable at the directorial level was irrelevant.

As the general rule would have informed the Director’s decision, it would thereforehelp the Appeal Panel in determining whether the Director’s decision was correct.

Further, it would also assist the Appeal Panel toknow how other similarly situated applicants could expect to have their matters determined by the Director. (JW v Alberta at para 38: “The publication of reliable information by a statutory delegate reduces the likelihood of meritless applications which deplete theresources of both the applicant and the delegate and increas[ing] the time needed to assess credible requests will clog the system.”) [78] The Appeal Panel’s statement in the final paragraph of the commencement date decision, that prevailing departmental policy“is an important factor and should be applied in this case” admits of several possible meanings.

It could mean that (1) the Appeal Panelwas applying the policy; or (2) the Appeal Panel was of the view that the Director should have applied the policy; or (3) the AppealPanel was of the view that the policy was a factor which, when applied to Mr Januario’s case, supported reversal of the Director’s

decision. Taken as a whole, the commencement date decision does not support the first meaning because, as I have explained, the Appeal Panel had already accepted Mr Januario’s arguments based upon evidence that had nothing to do with departmental policy. While either of the latter two options were conclusions open to the Appeal Panel on the evidence, the Appeal Panel’s earlier heavy reliance upon Dr Chan’s 2011 letter and the AISH Eligibility Assessment satisfactorily demonstrates that departmental policy merely affirmed the outcome that had already been decided upon.

Taking that into consideration, I find that, by its statement that departmental policy “is an important factor and should be applied in this case”, the Appeal Panel was expressing the view that departmental policy supported its decision to reverse the Director’s decision. [ 79 ] In short, the content of departmental policy in effect at the material time was a relevant, though not determinative, consideration. That the Appeal Panel took it into account does not detract from the reasonableness of the decision, taken as a whole and viewed in the context of the record. VIII.

Conclusion [ 80 ] The application is dismissed. [ 81 ] If the parties cannot agree on costs, they may be spoken to within 30 days of these reasons. [ 82 ] I thank counsel for their helpful submissions. Heard on October 11, 2013. Dated at Edmonton, Alberta on November 15, 2013 Russell Brown J.C.Q.B.A. Appearances: Susan N. Turner Alberta Justice and Solicitor General for the Applicant Timothy G. Patterson Edmonton Community Legal Centre for the Respondent Nicholas R. Jeanes, Student-at-Law Bennett Jones LLP for the Appeal Panel