Black v Alberta (Out-of-Country Health Services Appeal Panel), 2017 ABQB 80

Court of Queen’s Bench of Alberta Citation: Black v Alberta (Out-of-Country Health Services Appeal Panel), 2017 ABQB 80 Date: 20170206 Docket: 1501 10141 Registry: Calgary Between: Joanne Black Applicant - and - The Out-Of-Country Health Services Appeal Panel Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Neufeld _______________________________________________________ I.

Introduction [ 1 ] This is a judicial review of a decision by the Out-of-Country Health Services Appeal Panel, which denied the Applicant funding for proposed medical treatment outside of Canada. II. Background [ 2 ] In September 2013, Ms. Black, the Applicant, was operated on at the Royal Alexandra Hospital in Edmonton. The operation involved insertion of a gastric sleeve as a treatment for obesity, replacing a gastric band that was no longer effective for that purpose. [ 3 ] Shortly after being discharged she became ill. For the next two months she was in and out of the hospital.

At the end of November 2013, she was admitted to the hospital in Calgary, where she remained for over 6 months. During her hospital stay she underwent various treatments for post-operative complications, two operations involving placement of a feeding tube and treatment for a

bone fracture suffered during her hospital stay. [ 4 ] Following discharge, she has remained under the care of specialists who have tried to help her deal with continued problems with swallowing liquids, complications from the need for continued tube feeding; as well as ongoing and pre-existing Crohn’s disease issues. [ 5 ] The Applicant blames her motility problems on what she refers to as the “botched surgery” done in September 2013. She says that Dr.

De Gara cut her Vagus nerve, and failed to detect and correct a hernia near her gastric/esophagyl junction. [ 6 ] In the Fall of 2014, after consulting specialists in Calgary, who identified the Mayo Clinic in Scottsdale as one of the leadings centres for treatment of motility problems, the Appellant sought advice from Dr. James Madura – a General Surgeon at that Mayo Clinic. In a brief note, dated September 30, 2014, he stated: Impression/Plan: 1. Dysphagia and inability to eat status post sleeve gastrectomy. The patient presented a volume of medical records and imaging.

We were able to review these as well as a recent upper GI barium evaluation done here. I think that she had a hiatal hernia, which was not addressed at the time of her surgery, and she has some altered anatomy with preferential filling of her gastric pouch or hiatal hernia and likely relative stricture of her sleeve orifice. We had a long discussion regarding the risks, benefits, expectations, and alternatives to treatment.

I think she is looking at another operation to address this, and ideally, we will be able to reduce her hiatal hernia and reconstruct her sleeve anatomy such that she does not have a preferential filling of her blind gastric pouch. However, this may not be feasible depending on the findings at the time of surgery, and we have also discussed at length conversion to a gastric bypass, essentially esophagojejunostomy.

We have explicitly told her that this may not resolve her problems, certainly not the diarrhea and Crohn’s condition; but hopefully, she will be able to be independent of tube feedings and have a more appropriate oral intake tolerance. This certainly will not be normal and again this was expressed to the patient on a number of occasions. She will always have some food restrictions and side effects from eating and she acknowledges this today. Secondly, we also told her that a gastric bypass may be fraught with postoperative complications even resulting in her death.

Should she have small bowel Crohn’s, it would result in leaks, fistulas, intra-abdominal sepsis, and the patient again voiced her understanding and desire to move forward with surgery even given these risks. The patient was seen with her friend. We scheduled her for December 19 th , which she is quite happy about, and that is also her birthday. The plan is as above, revision of her sleeve gastrectomy, possible gastric bypass. [ 7 ] Dr. Madura’s willingness to proceed with surgery – as qualified as it was – stands in contrast to the views expressed by the Applicant’s Calgary physicians. [ 8 ] Dr.

Panaccione, a Gastroenterologist at the Foothills Medical Center (“FMC”) (and who sponsored her application to out-of- country healthcare coverage) conducted an esophagogastroduodenoscopy in advance of surgery scheduled for December 2014 at the Mayo Clinic. In his report, Dr. Panaccione stated: Patient scheduled for gastric surgery at Mayo Clinic Scottsdale with possible gastric bypass. I’m not sure of the utility of this but will defer to their expertise. [ 9 ] A few weeks earlier, Dr.

Lloyd Mack of the FMC reported in a letter to the Applicant’s General Physician: She has also been to the Mayo Clinic, and I understand she has some sort of surgery planned for December 19. I have asked her to send me the details as I am curious as to what they are planning. The prior barium swallow showed diffuse dysmotility-type problems as well as minimal floor contrast beyond her gastric pouch. Therefore, I am unsure what their thoughts are on surgical intervention and did suggest to her that there is not an urgency as she is doing well.

She is really the best I have seen her. [ 10 ] A few weeks before that, Dr. Andrews of the FMC Gastroenterology Clinic was highly critical of the plan for further surgery, given the risks involved. In a letter to the Applicant’s General Physician, he stated: PATIENT PROFILE Crohn colitis, active, failed to respond to Humira and recently switched, by Dr. Panaccione, to Stelara. The sigmoidoscopy done immediately prior to the switch to Stelara showed moderately active Crohn colitis in the rectum confirmed on biopsy.

She has not had any followup evaluations since the switch to Stelara, although she says that she is “feeling better”. Failed revision sleeve gastrectomy done September 2013 in Edmonton followed by extremely prolonged and complicated hospital stays in both Edmonton and Calgary with ongoing issues with pain, weight loss, tube feeds, diarrhea, a fall with fracture, other infectious complications, and VRE colonization. Since I last saw her in July, she went down to the Mayo Clinic in Scottsdale and had an evaluation there. They repeated her manometry and upper endoscopy.

She saw a surgeon there who feels that he would be able to surgically correct the issues with the anatomical abnormalities at her gastroesophageal junction. Although Joanne had the reports of her GI consultation, the letter from the surgeon was not yet available. She says she will forward it to me. Furthermore, she is wondering if I would fill out the forms to ask for coverage of her out-of-country expenses through the Alberta Health Services plan. I continue to be, quite honest, stunned by the lack of insight that Joanne has into her issue here. Her last surgery was done against the

recommendations of her gastroenterologist and with obvious and quite catastrophic complications in that she is now PEG-tube dependent and unable to tolerate any oral intake. ... At this point I once again had to make it extremely clear that I in no way would condone her having surgery at this time, especially considering her active IBD. The active IBD will also significantly increase her risk of complications with intraabdominal surgery. However, she is free to make her own decisions and it is certainly her prerogative if she wants to do that.

I should note that she has already booked this surgery at Mayo for the end of December. At this point I will leave it up to her and certainly she has made her own decisions in the past. However, I am certain that she understands that I think is a very bad idea and that I unequivocally advise against it. She said that she would forward a copy of the surgeon’s report to me when it was available.

With respect to her Crohn colitis, I suggested that she, at the very least, confirm that the inflammation has improved in that situation as I am almost certain that her Mayo physicians were not aware of the degree of activity that she had even a month ago. In that respect I will leave it up to Dr. Panaccione as to when he wants to follow up to reassess her response to the Stelara but again I highly recommended to her that she have that done before considering going anywhere for surgery. [ 11 ] On November 14, 2014, Dr.

Panaccione submitted an application for Out-Of-Country Health Services funding to the Out-Of- Country Health Services Committee (the “Committee”) on behalf of the Applicant. Included, as required, were copies of consultation reports from other doctors, including Dr. Mack and Dr. Andrews; as well as various reports dating back to the Applicant’s surgery in September 2013. [ 12 ] On December 12, 2014, the Committee, in a two-page letter, denied Ms. Black’s application.

On page one, the Committee described the process used; its understanding of the proposed procedure performed at the Mayo Clinic; and the issue before it (that is, whether the services are available in Canada). [ 13 ] On page two, it provided its decision and reasons: Following a thorough review of the documentation provided, the OOCHSC concluded the following: • The expertise to treat Ms. Black’s medical condition is available in Alberta and elsewhere in Canada.

The surgical treatment, for which funding is being requested, is also available in Alberta and elsewhere in Canada at major tertiary care centres, if indicated. • Additionally, appropriate assessments have been provided to Ms. Black in Alberta. June 16, 2014 and November 3, 2014 consultation reports from Alberta General Surgeon do not include recommendations for further surgery for Ms. Black at this time. Therefore, the OOCHSH members unanimously agreed to deny funding. [ 14 ] The balance of the letter dealt with appeal options, and other potential funding available. [ 15 ] By letter dated February 6, 2015 Ms.

Black appealed the Committee’s decision. Her appeal letter stated: Dear Ms. Hoeksema, I am appealing this decision. The decision is unjust and not based on the correct issues. They based their decision on Dr. Mack’s comments that no further surgery was necessary. Dr. Mack has dealt only with the surgeries relating to the j-tube placements. No further surgery is required in that regard at this time. This has absolutely nothing to do with helping with the motility problem caused by the Vegus [ sic ] Nerve. They also stated that the surgery was available in Alberta or Canada.

As I stated I saw over 50 Specialists and 20 Surgeons. Not one of them had an opinion because not one of them wanted to deal with this surgeon’s mistake. Who else could I see here? I was at deaths door when I went to the Mayo Clinic in Phoenix. They reviewed all my tests/medical records and did their own. They can help me get rid of the feeding tube and be able to live a better life. The state that I am left in here is not living. It is just existing. To say that I am having a revision to a gastric sleeve is incorrect. That may be a possibility.

The Mayo Clinic is going to correct the surgery I had so some foods can go down, probably pureed. It depends on what he finds while he is in there to decide what would be the best route to take. The first priority is to reconstruct the shape of the esophagus (eliminate pouch causing choking and aspirating of saliva. And not letting anything substantial pass) and the stomach if possible. Please give me that much. The cost of keeping me alive like this is astronomical. It would actually cost less to have this surgery. It appears that no decisions are overturned. This fact, again, showing up in the media.

So why, do you do this? Having to go to court will take too long and continue suffering that does not have to continue to this degree. This surgeon has went to the media many times complaining about medical mistakes he has to face from Mexico and other places in Canada. The medical mistakes are hidden from the public here. Who is going to help with his mistake? I hope this starts with your decision. Thank you for your time and efforts, Yours, truly, Joanne Black

[ 16 ] In acknowledging receipt of the appeal, the Out-Of- Country Health Services Appeal Panel stated: The Appeal Panel is an independent panel operating at arm’s length from the OOCHSC and Alberta Health. The Appeal Panel provides an opportunity for an applicant to have their case decision reviewed to ensure that the OOCHSC has followed the legislative guidelines. The Appeal Panel may confirm, vary or substitute the decision of the OOCHSC.

When considering an appeal, the Appeal Panel can review only (1) the notice of appeal, (2) the information/documentation that was made available to the OOCHSC (a copy of which was previously provided to the referring physician), and (3) a copy of the OOCHSC’s decision. The Appeal Panel cannot review new information or address any concerns you may have regarding the OOCHSC’s procedures or the decision it has made.

If you have questions concerning the OOCHSC’s review process please address these directly with the Chair of the OOCHSC. [ 17 ] By letter dated April 14, 2015, the Appeal Panel provided its decision, in which it confirmed the decision of the Committee to deny funding. It stated that: In addressing your appeal and making its decision, the Appeal Panel is limited by the Regulation (Section 13(2)) to consider only the following: the information that was available to the OOCHSC at the time of its decision, the OOCHSC’s reasons for that decision, and your letter of appeal; the Panel cannot review any new evidence.

The conclusion the Appeal Panel has reached is based on its evaluation of all the evidence presented. [ 18 ] It went on to provide reasons, the entirety of which are reproduced below: The services are available in Alberta or Canada, and the Alberta specialist indicated that the surgery was not indicated and the surgeon in the United States stated that the patient was at high risk for complications. Despite this information, the patient chose to proceed with the surgery.

This decision is in accordance with the Regulation, 2(1) Subject to subsections (2) and (3), and application may be made to the OOCHSC for approval of the payment of expenses with respect to insured services or insured hospital services received outside of Canada, where the resident or the resident’s dependent has endeavoured to receive the services in Canada and the services are not available in Canada. Since the services were available in Alberta and Canada the Regulation does not allow the Appeal Panel to fund payment for or reimbursement payment for the services.

The Appeal Panel sympathizes with your situation, but regrets that it cannot make a decision more favorable to you. III. The Judicial Review [ 19 ] The Applicant is a self-represented litigant, and is dependent on Assured Income for the Severely Handicapped.

Her stated grounds for judicial review include procedural unfairness, bias, and infringement of Charter rights as a result of the Panel exceeding its jurisdiction. [ 20 ] The specific breaches of procedural fairness alleged included failure to make findings of fact; failure to provide sufficient reasons; misapprehension of evidence, and failure to address the grounds of appeal set out in the letter of appeal.

While stated in different ways, the fundamental errors alleged focused on the failure of the Panel to provide adequate reasons for its decision, and secondarily, the Panel’s apparent reliance on a misunderstanding of the facts. Apparently, the Panel believed that Ms.

Black had received treatment from the Mayo Clinic by the time her appeal was underway. [ 21 ] As will be discussed below, when understood correctly, this judicial review should be assessed on the framework outlined in Dunsmuir v New Brunswick , 2008 SCC 9 ( Dunsmui ) and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , ( Newfoundland Nurses ), rather than on a procedural fairness framework. [ 22 ] The Applicant argued that the Panel’s reasons contained no findings of fact, no explanation as to why it reached the conclusion it did and failed to explain why the Panel did not accept the arguments advanced in her letter of appeal.

She cited, in support of her position, Couillard v Edmonton (City) , 1979 ABCA 210 regarding the need for a decision to state the facts relied upon.

She also cited more recent decisions such as McGregor v Alberta (Out-Of-Country Health Services Appeal Panel) , 2007 ABQB 138 ( McGregor ) and Moll v College of Alberta Psychologists , 2011 ABCA 110 ( Moll ). [ 23 ] In response, the Panel emphasized recent cases ( Newfoundland Nurses ) that deal with sufficiency of reasons in the context of a broader inquiry as to the reasonableness of a tribunal decision within the analytical framework articulated in the seminal Supreme Court of Canada decision of Dunsmuir .

It also referred me to a recent decision of this Court involving the Panel ( Card v The Out-Of- Country Health Services Appeal Panel , 2014 ABQB 763 ), in which this Court determined the appropriate standard of review of a Panel decision to be reasonableness, and in which “terse” reasons were found to be sufficient to meet that test. [ 24 ] In its written and oral submissions, the Panel argued that sufficiency of reasons must be evaluated through the lens of Dunsmuir and Newfoundland Nurses .

Rather than evaluating the sufficiency of reasons as a discrete issue, it must consider the decision and the reasons together to determine whether the decision falls within a range of possible outcomes ( Dunsmuir at para 47 ).

If it does, the Court should defer to the expertise of the tribunal. [ 25 ] The Respondent also referred the Court to the following passages from Newfoundland Nurses at paras 15 – 18 regarding the way in which the sufficiency of reasons should be examined under the Dunsmuir framework: In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision- making process of adjudicative bodies with regard to both the facts and the law” ( Dunsmuir , at para 48 ).

This means that court should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.

..... Evans J.A. in Canada Post Corp. v. Public Service Alliance of Canada, 2010 FCA 56, ...notes that “perfection is not the standard” andsuggests that reviewing courts should ask whether “when read in light of the evidence before it and the nature of its statutory task, theTribunals reasons adequately explain the bases of its decision” (para. 163). I found the description by the Respondents in their Factumparticularly helpful in explaining the nature of the exercise: When reviewing a decision of an administrative body on the reasonableness standard, the guiding principle is deference.

Reasons are notto be reviewed in a vacuum – the result is to be looked at in the context of the evidence, the parties’ submissions and the process.Reasons do not have to be perfect. They do not have to be comprehensive. [emphasis added by Respondent] IV. Standard of Review A. The procedural fairness standard does not apply [26] Typically, issues of procedural fairness are “not amenable to a traditional standard of review of analysis. Rather, they are…reviewed for whether the proceedings met the level of fairness required by law” (Institute of Chartered Accountants of Alberta v Barry,2016 ABCA 354 at para 5).

However, “where there are reasons to review (as opposed to a situation where the tribunal gave no reasons)any challenge to the sufficiency of the reasons should be made within the reasonableness analysis” (BTC Properties II Ltd v Calgary(City), 2012 ABCA 13 at para 15 (BTC)). [27] In this case, the Panel was required by s 13(6) of the Out-of-Country Health Services Regulation, Alta Reg 78/2006 (“theRegulations”) to provide written reasons explaining its decision to Ms. Black. The Panel provided reasons. The Applicant is challengingthe sufficiency of those reasons.

Based on BTC, as the Panel provided reasons, the reasonableness framework, as opposed to aprocedural fairness framework, should be applied. B. The standard of review is reasonableness [28] In Dunsmuir, the Supreme Court of Canada set out to clarify the system of judicial review in Canada. At that time, judicialreview in Canada laboured under an artificial and elusive distinction between patent unreasonableness and reasonableness simpliciter, indetermining standard of review and applying it to the facts of each case.

The Court determined that a more appropriate approach wouldbe to adopt only two standards – reasonableness and correctness. The former would apply in most situations, with correctness beingreserved for pure questions of law on matters that are clearly appropriate for judicial pronouncement as opposed to pronouncement by aspecialized tribunal. [29] Recognizing that the standard of review issue had plagued administrative law, the Court also outlined a two-step process fordetermining the standard of review.

At the first step, the reviewing court should look to previous decisions to see if courts have alreadydetermined the standard of review applicable to the tribunal in question. If so, the issue of standard of review does not need to bedetermined again. Only if the standard of review has not previously been determined should the reviewing court proceed to the secondstep. [30] In this case, it is unnecessary to proceed past the first step. The standard of review for reviewing the decisions of the Out-Of-Country Health Services Appeal Panel was determined by this Court in the Card case.

In Card, Justice Erb analyzed the Panel’s appealprocess in the context of the factors enumerated under Dunsmuir. She concluded that the appropriate standard of review wasreasonableness. [31] I see no reason to revisit that determination. Indeed, given the direction in Dunsmuir, it would be inappropriate to do so. V.

Law on Sufficiency of Reasons [32] I will assess the adequacy of reasons in light of the direction provided by the Supreme Court of Canada in NewfoundlandNurses at para 16: ...if the reasons allow the reviewing court to understand why the tribunal made its decision and permit to it determine whether theconclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [33] Also instructive are the comments of the Alberta Court of Appeal in Moll at para 33, as quoted by the Applicant in argument: Assessing the sufficiency of reasons should be done having regard to the three purposes that reasons serve: (1) to tell the parties why adecision was made; (2) to provide public accountability for that decision; and (3) to permit effective appellate review: R.E.M., supra,para 11.

However, reasons are not to be read in a vacuum but rather in context: Walsh v. Council for Licensed Practical Nurses, 2010NLCA 11; 295 Nfld. &P.E.I.R. at para 28. That context necessarily includes the totality of the evidence led during the proceedings, theissues raised and the arguments advanced in counsel’s submissions: R.E.M., supra, at para 17; and Johnston v. Alberta (Energy andUtilities Board) (1997), 1997 ABCA 265 , 200 A.R. 321, 1 Admin.

L.R. (3d) 241 (C.A.), at para 10. [34] In my view, there is no inconsistency between the analytical approach directed by the Alberta Court of Appeal in Moll andthat provided in Newfoundland Nurses. Both are directed to the same purpose, which is to determine whether, when read in light of theevidence before it and the nature of its statutory task, the Tribunal’s reasons adequately explain the basis of its decision. I will turn to thatquestion next.

VI. Panel’s Reasons are Insufficient [ 35 ] As noted earlier, the Panel’s decision was to deny the appeal, and confirm the decision of the Committee. In doing so, it noted that Ms. Black had already proceeded to have the surgery performed, which had not in fact occurred. Leaving that aside, the reasons were comprised of two sentences: The services are available in Alberta or Canada, and the Alberta specialist indicated that the surgery was not indicated and the surgeon in the United States stated that the patient was at high risk for complications.

Since the services were available in Alberta and Canada the Regulation does not allow the Appeal Panel to fund payment for or reimbursement payment for the services. [ 36 ] In my view, the Panel’s reasons do not adequately explain the basis of its decision. On the face of it, the reasons are at best unclear and at worst internally inconsistent. [ 37 ] They commence by stating that the services are available in Alberta or Canada.

Implicitly, the “services” referred to consist of the surgery for which funding was sought. [ 38 ] They go on to state that “the Alberta specialist indicated that the surgery was not indicated”, without identifying who that specialist was – an important point given that Dr. Panaccione, who made the funding application on Ms. Black’s behalf was prepared to defer to the expertise of the Mayo Clinic on that point. It can be inferred that the Panel was referring to Dr. Mack, whose letters to Ms. Black’s General Physician were impliedly referenced earlier by the Committee, but it may also have been referring to Dr.

Andrews, whose views were considerably more strident than those of Dr. Mack or Dr. Panaccione. [ 39 ] The Panel’s reasons went on in the same sentence to note that “the surgeon in the United States stated that the patient was at high risk of complications”. However, they provided no contextual analysis of that statement, and offered no explanation as to how the statement factored into the Panel’s conclusion that the surgery was available in Alberta or Canada, if at all. [ 40 ] The absence of adequate reasoning by the Panel is troublesome in a number of respects. First, the Panel appears to have left Ms.

Black in somewhat of a Catch 22, by saying that there can be no funding for surgery that is available in Canada, while also saying that the surgery will not be performed by Canadian surgeons on account of it not being “indicated” and being considered as “high risk”. While there may well be a good explanation for this apparent circularity, the Panel’s reasons did not attempt to provide it – nor did the Committee. [ 41 ] The second troubling aspect of the absence of reasons is that it is difficult to determine how the Panel approached the task before it.

Subsection 2(1) of the Regulations says that an application for funding “may be made...where the resident...has endeavoured to receive the services in Canada and the services are not available in Canada”. [ 42 ] Both the Committee and the Panel framed, as the sole issue before them, whether service for which funding was sought is available in Canada. As discussed earlier, however, both the Committee and the Panel apparently considered not only the availability issue, but also whether the surgery was needed (i.e. “indicated”) and appropriate, from a risk perspective.

It appears, therefore, that both the Committee and the Panel considered that the need for and risk of proposed out-of-country surgery to be relevant considerations pursuant to the legislation under which they operate. [ 43 ] This may well be the case, but if so it seems only fair and appropriate that an Applicant for out-of-country funding be aware of that so that she (and her sponsoring physician) know what information should be provided in support of a new application, and hence available to the Committee and if necessary to the Panel on appeal. [ 44 ] The third troubling aspect of the Panel’s reasons is that they chose not to deal with the submissions made by Ms.

Black in her Notice of Appeal in any way. In fact, the erroneous statement in the reasons that Ms. Black had already proceeded with surgery at the Mayo Clinic left her (and on review, the Court) with the impression that the Notice of Appeal had not been reviewed carefully, if at all. This was somewhat disrespectful to Ms. Black, whose quality of life has been destroyed, who is desperate for medical help, and who genuinely believes that the only hope offered is not available in Canada.

It is important to bear in mind that the purpose of providing reasons for denial of out-of-country health care costs is to enable a patient not only to understand why the decision was made, but also to inform a new application. The Panel, and before it the Committee, failed in both respects. [ 45 ] In finding the Panel’s reasons to be inadequate, it should be made clear that I do not in any way question the dedication and good faith of the members of the Panel, or the underlying Committee. Their task is neither pleasant nor enviable.

They are charged with making difficult decisions that may well determine the course or at least quality of the lives of Albertans who seek access to out-of- country medical service. The Panel need not provide voluminous or perfect reasons. [ 46 ] However, it is not too much to expect that the reasons the Panel gives to unsuccessful applicants will provide a meaningful explanation as to why a decision was reached, so as to inform the applicant’s next steps if nothing else.

In the absence of such an explanation it is simply not possible to determine whether and on what basis the decision fell within the range of reasonable outcomes for an appeal of this nature. The Panel has been admonished by this Court in the past for the terse nature of its decisions ( Card at para 41, 42 ; McGregor at para 40 ). I hope that it will now take such admonitions to heart. [ 47 ] I would add that the task faced by the Panel (and for that matter a funding applicant and a reviewing court) would be considerably reduced if proper reasons were provided by the Committee in the first instance.

There would be no need in such circumstances for the Panel to provide repetitive reasons of its own. It would need only to explain how the central arguments advanced in the Notice of Appeal had been considered in disposing of the appeal.

VII. Bias [48] The Applicant argues that there is reasonable apprehension of bias concerning one of the Panel members – Mr. NaeemLadhani – by virtue of Mr. Ladhani’s employment as a procurement manager for Alberta Health Services. [49] In my view, Mr. Ladhani’s employment status does not, in itself, give rise to a reasonable apprehension of bias under the testset out in Committee for Justice and Liberty v The National Energy Board (1976), (SCC), [1978] 1 SCR 369. [50] An informed person, viewing the matter realistically and practically would not conclude that Mr.

Ladhani would decidematters unfairly, as against those seeking funding for out-of-country treatment simply by virtue of his employment with Alberta HealthServices. In fact, it would be equally plausible that such a person would have greater understanding of and sympathy for the challengesfaced by health care recipients in Alberta than would another member of the public who had no direct involvement in the delivery ofsuch services. [51] It should also be noted that I was advised during argument that Mr. Ladhani is no longer a member of the Panel. If that is infact the case, the bias issue is moot. VIII.

Breach of Charter Rights [52] The Applicant presented a somewhat nuanced argument in support of the proposition that the Panel’s decision breached herright to security of the person under s. 7 of the Canadian Charter of Rights and Freedoms. As I understood it, the argument can besummarized as follows: 1. The Charter affords Canadians the right to make their own choices regarding health care decisions, including the right to choosehigh risk treatment. 2. In denying the appeal, the Panel decision was based, at least in part, on its determination that the risks associated with the proposedsurgery were too high. 3.

By incorporating risk acceptability into its decision, the panel exceeded its jurisdiction and usurped the Applicant’sconstitutionally-protected right to decide, for herself, whether the risks of surgery are acceptable. 4.

The breach of the Applicant’s s. 7 rights empowers the Court to make an order remedying the breach, including ordering that theProvince of Alberta fund out-of-country surgery for the Applicant. [53] The Panel did not join issue with respect to the Charter argument (other than to state that it had no basis in law), nor did theSolicitor General of Alberta or the Attorney General of Canada, despite having been served with notice of this constitutional question.There was, consequently, an incomplete record of argument on this matter. [54] Nonetheless, it is my view that the argument must fail.

First, the Panel’s reasons are unclear in terms of the degree to whichthe risks associated within the surgery factored into the decision, if at all. That was discussed earlier. [55] Second, even if risk did factor significantly into the decision, the matter before the Panel, (and before it, the Committee) wasonly whether funding should be provided for the proposed surgery, not whether the surgery could be performed at all. For a person oflimited means, that may for practical purposes be a distinction without a difference.

However, it is an important difference whenconsidering whether an infringement of constitutional rights has occurred. While publicly-funded medical care is an important politicalright in Canada, I was not referred to any case law finding public funding to be a constitutionally-protected right, in respect of medicalservices within Canada or elsewhere. To the contrary, it has been held that s. 7 does not impose positive obligations on the state(Gosselin v Québec (Attorney General), 2002 SCC 84 at para 81).

Further, “on the current state of s. 7 constitutional jurisprudence,where…the government elects to provide a financial benefit that is not otherwise required by law, legislative limitations on the scope ofthe financial benefit provided do not violate s. 7” (Flora v Ontario Health Insurance Plan, 2008 ONCA 538 at para 108). Therefore, thePanel’s decision to not fund out-of-country health services did not breach s. 7 of the Charter. [56] As there was no breach of the Applicant’s s. 7 rights, there is no need to consider the nature and scope of remedies availableunder s. 24 of the Charter. IX.

Remedies [57] In her written submissions, the Applicant sought an order approving out-of-country funding due to urgent need; a s. 24(1)Charter right infringement remedy, and any other remedy deemed appropriate. [58] In oral argument, I was advised that the Applicant has, since the denial of funding, sought additional medical advice, and hasnow been referred to a different expert in bariatric correction therapy, who practices in California. [59] To date, she has not made an application for approval of funding for (presumably) surgery in California but she would like topursue that treatment as soon as she can. [60] I am in no position to order the Province of Alberta to fund out-of-country surgery.

The legislature has entrusted such fundingdecisions to the Committee and, on appeal, to the Panel – not to the Court of Queen’s Bench. What I can do is require the Panel and byextension the Committee to act in accordance with statutory and common law requirements, as pronounced by this Court.

[61] In this case, as in McGregor, the most appropriate course of action is to order that Ms. Black will be at liberty to apply forout-of-country funding for the surgery now proposed, by way of a new application. That application is to be considered by theCommittee and, if necessary, the Panel on appeal, in accordance with the findings in this decision. [62] In view of the absence of adequate reasons by the Panel and the Committee to date, I also direct that the Committee willprovide Ms. Black and the physician who made the initial application on her behalf, Dr.

Panaccione, with guidance regarding theinformation it requires in order to assess whether the proposed out-of-country services are generally available in Alberta or elsewhere inCanada. Without limiting the generality of that guidance, the Committee shall specify whether the Applicant is expected to consult theRoyal Alexander Bariatric Treatment Center regarding its availability and willingness to perform the proposed surgery, notwithstandingthe negative outcome of her previous gastric sleeve surgery at that hospital, and the Applicant’s lack of confidence in the servicesprovided at that centre.

If the risk of surgery is considered by the Committee to be a discrete factor in evaluating the Applicant’seligibility for out-of-country funding, the Committee shall advise the Applicant that such is the case, and advise her as to the type ofinformation required in order for the Committee to determine whether the risks associated with the proposed surgery are acceptable. [63] In deciding upon a new application by Ms. Black, the Committee shall, in the event of denial of the application, providereasons for its decision in accordance with the findings in this decision.

In the event of an appeal, the Panel shall do likewise. Costs [64] A successful Applicant is ordinarily entitled to costs. When the Respondent is an administrative tribunal however, costs arethe exception rather than the rule, especially when the tribunal restricts its submissions to jurisdictional issues and refrains from arguingthe merits of its own decision as is the usual and accepted practice (Court v Alberta (Environmental Appeal Board ), 2003 ABQB 912 , 2003 31 Alta L.R. (4th) 174 (Q.B.) at pages 179-180). In this case, the Panel did not so restrict itself. Ms.

Black will have costsin the amount of $500.00, as per Column 1 of

Schedule C to the Alberta Rules of Court. Heard on the 04th day of January, 2017. Dated at the City of Calgary, Alberta this 6th day of February, 2017. R.A. Neufeld J.C.Q.B.A. Appearances: Ms. Joanne Black for the Applicant/Self -Represented Litigant Mr. Blair E. Maxston for the Respondent