Peter v Public Health Appeal Board of Alberta, 2019 ABQB 989

Court of Queen’s Bench of Alberta Citation: Peter v Public Health Appeal Board of Alberta, 2019 ABQB 989 Date: 20191220 Docket: 1703 08159 Registry: Edmonton Between: Matthew Warren Peter Applicant - and - Public Health Appeal Board of Alberta and Alberta Health Services Respondents _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Preface [ 1 ] Since hearing argument on this matter, and just as I was about to sign this decision, I learned that the Supreme Court of Canada released its decisions in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 and Bell Canada v. Canada (Attorney General) , 2019 SCC 66 . While these decisions will alter the framework for judicial review of administrative decisions moving forward, applying that framework to the outcome here.

As such, I did not find it necessary for me to delay issuing this decision in order to have the parties make submissions on the appropriate standard of review to be applied to the various issues in this case.

[ 2 ] I have reached this conclusion for several reasons. [ 3 ] Vavilov sets the “reasonableness” standard as the default for judicial review. [ 4 ] Reasonableness is now defined by context. The majority prefaced this determination with its comments in paragraph 88: [88] In any attempt to develop a coherent and unified approach to judicial review, the sheer variety of decisions and decision makers that such an approach must account for poses an inescapable challenge.

The administrative decision makers whose decisions may be subject to judicial review include specialized tribunals exercising adjudicative functions, independent regulatory bodies, ministers, front-line decision makers, and more. Their decisions vary in complexity and importance, ranging from the routine to the life-altering. These include matters of “high policy” on the one hand and “pure law” on the other. Such decisions will sometimes involve complex technical considerations.

At other times, common sense and ordinary logic will suffice. [ 5 ] The majority held in paragraph 90: [90] The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt.

The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context. [ 6 ] The majority amplified this concept at paragraph 99: [99] A reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable.

To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir , at paras. 47 and 74; Catalyst , at para. 13. [ 7 ] They continued at paragraph 101: [101] What makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process.

The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. [ 8 ] The reasonableness standard may be ousted in three circumstances.

The first is where the underlying statute provides for a standard of review itself, in which that standard will be applied so long as the legislation is sufficiently clear on that standard. The second where the statute provides for an appeal process to the courts. Where there is an appeal process, the standard of review will be correctness for questions of law, and palpable and overriding error for questions of mixed fact and law.

That standard is the same as appeal courts apply to the decisions of courts being appealed from. [ 9 ] The third situation is where the “rule of law” requires that the correctness standard be applied. The majority gives as examples, constitutional questions, general questions of law of central importance to the legal system as a whole, and questions related to the jurisdictional boundaries between two or more administrative bodies.

It does not close the door to other types of questions falling into that category in the future, with proper submissions and argument. [ 10 ] Procedural fairness is addressed mainly in connection with the giving of reasons for decision, which will now depend on context and not be an inflexible requirement. [ 11 ] In the specific context of this case, none of the exceptions to the reasonableness standard apply here. There is no legislated standard of review under the Public Health Act , nor is there an appeal process to the courts. [ 12 ] The Rule of Law issue is raised by Mr.

Peter’s arguments under the Charter and the Alberta Bill of Rights . I have dealt with those arguments on a correctness basis. [ 13 ] There is no issue of central importance to the legal system as a whole, and there is no conflict to resolve between competing administrative tribunals. [ 14 ] The decision does not affect the standard of correctness for procedural fairness issues as they relate to the application before me. There were fulsome reasons given by the PHAB.

Bias issues will continue to be reviewed on a correctness standard. [ 15 ] As for the reasonableness standard applicable to this application, assistance from cases such as Dunsmuir and Newfoundland Nurses and Alberta Privacy Commissioner v ATA still offer guidance in assessing the reasonableness of a particular tribunal’s decision under the newly-articulated standard. [ 16 ] Going directly to the key areas identified by the majority, there are no flaws in the tribunal’s reasoning process. They address the factual issues, the applicable legislation, identify the legal issues, the arguments raised by Mr.

Peter and give a reasoned decision. Their reasoning process is transparent and logical. [ 17 ] Put in the context of what the tribunal was required to address, Mr. Peter appealed orders issued by a person identified in the applicable legislation as the person with the power and jurisdiction to make those orders. The orders required repairs to a property that was rented to the public. All of the activities challenged fell within the scope of the Public Health Act ., Their decision has not been

shown to be untenable in light of the relevant factual and legal constraints that bear on it the decision. Any legal constraints were identified and dealt with, and I found the constitutional and procedural fairness issues to have been correctly decided. [ 18 ] I do not think the majority’s comments on the role of deference under the new reasonableness standard play a role in this application. Here, the PHAB gave detailed reasons for its conclusions. My review of those reasons demonstrates to me that the PHAB understood the issues and dealt with them in an intelligible and transparent way.

That was of considerable assistance to me on this review and to the extent deference remains a consideration, their reasons are entitled to deference. [ 19 ] I think this approach is consistent with the majority’s comments at paragraphs 97 and 98: “…close attention must be paid to a decision maker’s written reasons and that they must be read holistically and contextually, for the very purpose of understanding the basis on which a decision was made.” (para 97); and “deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided” (para 98). [ 20 ] While I might approach my analysis differently under the new Vavilov framework, those differences would not change my conclusions and the result. [ 21 ] It would not be a wise use of judicial resources for me to “start over” and deliver some time in the new year a decision with the same result but following a different reasoning process.

That process is in my view unnecessary. Introduction [ 22 ] Matthew Warren Peter applies to set aside the decision of the Public Health Appeal Board (“PHAB”) dated December 27, 2016 with respect to two orders of an executive officer of Alberta Health Services (“AHS”) dated August 18, 2016. [ 23 ] AHS opposes the application. PHAB takes no position on the merits of the application, and made submissions only on the standard of review and makes itself available through counsel to respond to any questions on the governing statute, the Public Health Act , RSA 2000, c P-37 (the “ Act ”). Background [ 24 ] Mr.

Peter is the owner of a residential property at 10851 – 75 Avenue (the “Residence”). He claims to live at that residence “simultaneously” with at least one other residences. Mr. Peter shares the residence with “roommates”. Some of the roommates pay him rent; others are provided free rent in exchange for services they perform for Mr. Peter, such as repairs, maintenance, and upkeep. [ 25 ] The Residence is described as a two story home with one suite upstairs, one suite on the main floor and three suites in the basement. The “roommates share use of common areas on the main floor. [ 26 ] Mr.

Peter advertises for “roommates” with a “for rent” sign on the property and on Kijiji. [ 27 ] In April 2016, a person who resided in another residence owned by Mr. Peter complained to AHS about the condition of that residence as well as other properties owned by Mr. Peter, including the Residence in question here. [ 28 ] As a result of this complaint, AHS conducted an exterior site inspection of the Residence and noted some repair deficiencies. On May 3, 2016 an executive officer with AHS wrote Mr. Peter by regular mail and email advising him that an inspection of the Residence be conducted on May 10, 2016.

According to file notes, Mr. Peter responded by telephone to the executive officer that he would only respond to registered mail. He objected to any inspection of the Residence as it was a private residence. Mr. Peter claimed that any inspection would be “unconstitutional”. The executive officer advised Mr. Peter that the Residence was a “public place” because areas of the Residence were rented. Mr. Peter was advised as to the provisions of sections 59 and 60 of the Act . [ 29 ] The executive officer went to the Residence on May 10, 2016. He spoke to Mr. Peter by phone. Mr.

Peter said he would allow them to inspect the Residence. A Demand for Entry for May 20 was prepared and left in Mr. Peter’s mailbox at the Residence. [ 30 ] On May 20, two executive officers inspected the Residence. Mr. Peter accompanied them through the Residence. A number of deficiencies were noted. The report prepared by the executive officer indicated “All items are to be addressed. A follow-up inspection will be done at the end of June.” On June 27, Mr. Peter contacted the executive officer and said he would do some of the work, and asked what the next step would be if he did not comply with the report. Mr.

Peter left a voice mail a couple of days later saying “the matter had to go to court because he was not going to comply”. [ 31 ] When the executive officer went to the Residence on July 12, Mr. Peter informed her that he had done none of the work. He was ordered by the executive officer to do the work. A formal “Order of an Executive Officer” was prepared on August 18, requiring that the specified work be done. Another order dated August 18 closed the Residence and ordered that it be vacated. [ 32 ] On August 25, Mr.

Peter emailed the executive officer advising that the Residence is a private dwelling and that his rights had been violated. He indicated that the executive officer had violated the Act and breached his Charter rights and the Alberta Bill of Rights . [ 33 ] Mr. Peter then filed a notice of appeal of the two orders on September 7, which was a day outside the appeal period. He

requested a stay of enforcement pending his appeal, and that was granted by the Board Chair. A public hearing was held on November 4 by PHAB. Mr. Peter attended the appeal. [ 34 ] At the outset of the appeal, Mr. Peter objected to PHAB’s jurisdiction on the basis of its composition, the appointment process, and lack of impartiality. Those objections were rejected and the hearing continued. PHAB extended the time for filing and serving the notice of appeal under section 5(9) of the Act . [ 35 ] On the appeal, Mr. Peter argued: 1.

The inspection and orders infringed his rights under the Charter and the Alberta Bill of Rights; 2. The Act , Housing Regulation and Minimum Housing and Health Standards did not apply because the Residence is a private dwelling because his living arrangements changed from time to time and he had another residence where he lived with his wife and child. He said he occupied the Residence “a good portion or more of the time” and his belongings were there. He allowed “friends” to room with him in the Residence. There were no suites, but only bedrooms.

There were no lease agreements, and the roommates paid him rent or worked for him in lieu of rent; and 3. The orders were not necessary because there were no conditions that were or might become injurious or dangerous to public health. Mr. Peter described the “deficiencies” as trivial, noting that all of the residents were adults and aware of the conditions of the Residence and safe from harm. He described the executive officer as “overzealous”. [ 36 ] PHAB declined to deal with the Charter and Bill of Rights issues, citing

section 11 of the Administrative Procedures and Jurisdiction Act , RSA 2000, c A-3 and the Designated Constitutional Decision Makers Regulation , AR 69/2006 . It notes that PHAB is not a designated decision makers under that regulation. [ 37 ] It decided that on the evidence “supports the finding” that the Act , Housing Regulation and Minimum Health and Housing Standards apply to the Residence, as it was rental accommodation. It noted: • The Residence was not Mr. Peter’s sole place of residence; • At times Mr.

Peter lived elsewhere with his family; • He was not the sole resident of the Residence as he had friends and roommates there as well who helped him pay the bills; • He did not have his own bedroom in the Residence; • There were “for rent” signs posted at the Residence; and • There were bedrooms for rent in the Residence. [ 38 ] PHAB referenced

section 1 (ii) of the Act , which states: “public place” includes any place in which the public has an interest arising out of the need to safeguard the public health and includes, without limitation, (viii) accommodation facilities, including all rental accommodation. [ 39 ] It considered the executive officer’s inspections and entries into the Residence lawful under

section 59 of the Act .

Section 59 provides: 59

(1) An executive officer may inspect any public place for the purpose of determining the presence of a nuisance or determining whether this Act and the regulations are being complied with.

(2) An executive officer making an inspection under subsection (1) may (

a) at any reasonable hour enter in or on the public place that is the subject of the inspection… [ 40 ] PHAB noted that

section 1(

b) of the Housing Regulati on defines “housing premises” as “any structure that is used or intended to be used wholly or partly for accommodation purposes and includes…(iii) a dwelling… (

v) a lodging house… and (vii) a rooming house.” [ 41 ]

Section 2, which states that “this Regulation does not apply to housing premises or that part of the hosing premises that is occupied solely by the owner and the owner’s dependants” as no part of the Residence fell within that category. [ 42 ] As to the orders themselves, PHAB dealt with the three areas of disagreement between Mr. Peter and the executive officer, being smoke alarms, the lack of appropriate separation between the furnace and the remainder of the Residence, and the headroom clearance in various doorways in the basement suites. [ 43 ] Mr.

Peter argued that there were sufficient smoke alarms in the Residence. He argued that there was adequate separation between the furnace and the bedroom it is accessed from, and that the headroom (five feet eleven inches) was close enough to the minimum six-foot requirement, and that the missing inch did not cause any danger. [ 44 ] The six foot minimum requirement comes from a “Guidance Document” not included in any of the Act , the Housing Regulation or the Minimum Housing and Health Standards . The Board concluded that the Guidance Document was a “reasonable

framework” and that the low headroom “puts tenants, visitors and first responders at risk”. [ 45 ] The orders were confirmed in a written decision dated December 27. [ 46 ] Mr. Peter filed an Originating Application on June 28, 2017, returnable on July 12, 2017. [ 47 ] AHS argues that the Originating Notice was filed out of time, following Rule 3.15 of the Alberta Rules of Court . That Rule states: 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction.

(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period. [ 48 ] Rule 3.16 applies only to habeas corpus applications. Rule 13.5 is the Court’s general power to extend time periods. [ 49 ] On July 12, the matter was scheduled for a one-day special chambers application on September 21, 2018. Mr. Peter was cross- examined on his affidavit on June 26, 2018. Following the cross-examination, when it appeared that Mr.

Peter intended to argue constitutional issues on the judicial review application, counsel for ASH wrote him advising him that he needed to notify the Attorney General of Canada and the Solicitor General of his intention to raise constitutional issues, under

Part 3 of the Judicature Act , RSA 2000, c J-2 . [ 50 ] Mr. Peter sought an adjournment of the hearing in September 2018 and it was rescheduled for December 5, 2019. At the outset of the hearing, counsel for AJH objected to Mr. Peter raising any constitutional issues as no notice had been given to the Attorney General for Canada or the Alberta Solicitor General. Mr. Peter sought an adjournment. [ 51 ] I declined to grant the adjournment on the basis that Mr. Peter had ample notice of the need to notify the Attorney General of Canada and Alberta Solicitor General. Mr.

Peter said that he did not know how to do that, and was given no assistance when he made enquiries at the Law Courts or when he contacted the Solicitor General’s office. He said he did not know where to find any of these people. [ 52 ] I observed that it was incumbent on self-represented litigants to take reasonable steps to learn about process and procedural issues as well as applicable laws. I suggested that it would only take a matter of minutes on the internet to learn how to contact the Alberta Solicitor General or the Attorney General for Canada.

Since the matter had already been adjourned once, I refused to adjourn the matter again. I did indicate that I would listen to Mr. Peter’s arguments on constitutional issues, and if I felt there was sufficient merit, I would adjourn that aspect of his application to a later date to enable him to properly serve the necessary parties. Standard of Review [ 53 ] There is no disagreement over the appropriate standards of review to apply on the application.

With respect to jurisdictional issues, such as allegations of bias and PHAB’s ability to deal with constitutional issues, the standard of review is correctness: Dunsmuir v New Brunswick , 2008 SCC 9 . [ 54 ] For factual matters, the

interpretation of PHAB’s “home statutes” such as the Act , the Housing Regulation and the Minimum Housing and Health Standards , the standard of review is reasonableness: Canada (Canadian Human Rights Commission) v Canada (Attorney General) , 2018 SCC 31 . That is because of the expertise or familiarity a board or tribunal will have with the statutes and regulations it regularly deals with. [ 55 ] PHAB’s

interpretation of the standards applicable to its legislation was specifically dealt with in Boardwalk Equities Inc v Capital Health Authority , 2005 ABQB 34 . In that case, the Court confirmed that PHAB was entitled to deference and its decisions would be reviewed on the reasonableness standard when interpreting applicable standards. Issues [ 56 ] AHS argues that Mr. Peter’s application was filed out of time and must be dismissed on that basis. [ 57 ] Mr. Peter has three areas of complaint: 1. Alleged Breaches of his Constitutional Rights; 2. Bias or apprehension of bias on the part of PHAB; and 3. The Merits of the Orders.

Authorities [58] The parties referred to a number of authorities. Mr. Peter’s: Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 PHAB: Dunsmuir v New Brunswick, 2008 SCC 9; ATA v Alberta (Information and Privacy Commissioner), 2011 SCC 61; Boardwalk Equities Inc v Capital Health Authority, 2005 ABQB 34; and Sarah Blake, Administrative Law in Canada, 6th ed (Toronto: LexisNexis, 2017).

AHS: Dunsmuir v New Brunswick; Canada (Canadian Human Rights Commission) v Canada (Attorney General), 2018 SCC 31; Alberta (Information and Privacy Commissioner) v ATA; Boardwalk Equities Inc v Capital Health Authority; UAlberta Pro-Life v Governors of the University of Alberta, 2017 ABQB 610; Baker v Drouin, 2017 ABQB 204; RG Bissett Professional Corp v Kusick, 2018 ABQB 406; Boyd v JBS Foods Canada Inc, 2015 ABCA 380; Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62; Lethbridge (City) v Daisley, 2000 ABCA 79; Baker v Canada (Minister of Citizenship and Immigration); and Beaverford v Thorhild (County) No 7, 2012 ABCA 99.

By the Court: ENMAX Corporation v Alberta Labour Relations Board 2018 ABQB 431; Hunter v Southam, (SCC); Ringrose v. College of Physicians and Surgeons of Province of Alberta, (ABCA); and Duncan v Law Society of Alberta, 1991 ABCA 107. Out of time [59] AHS cites UAlberta Pro-Life v Governors of the University of Alberta, 2017 ABQB 610 and Baker v Drouin, 2017 ABQB204 in support of its argument that Mr.

Peter missed the time period for filing his appeal and is thus out of time. [60] In Baker v Drouin, Jeffery J considered an application to review a decision of the Appeals Commission for Alberta Workers’Compensation.

The provisions of the Workers’ Compensation Act regarding judicial review mirrored the provisions in the Alberta Rulesof Court: 6 months “after the date of the decision that is being appealed”. [61] He noted in paragraph 11 that “the limitation period has been in the Rules for many years and has been strictly applied by thisCourt repeatedly”. [62] At paragraph 22, Jeffery J stated: [22] The applicable provisions of the Act and the Rules both specifically prohibit extensions to the six-month time limit.

It would becontrary to those statutory provisions and contrary to “observ[ing] ... the due process of law” … if I were to allow an extension. The six-month time limit is in place to ensure fairness to all parties who are drawn into administrative proceedings and who depend on and need

finality in such decisions. [63] And at paragraph 30, he concluded: Finally, the Rules apply equally to all litigants, whether represented by a lawyer or representing themselves… [64] Baker v Drouin has been approved and applied a number of times.

For example, in, ENMAX Corporation v Alberta LabourRelations Board 2018 ABQB 431, Hunt MacDonald J observed: [20] In Raczynska, Justice Graesser acknowledged that the strict application of rule 3.15 may be viewed as harsh: at para 76.In Zimmer-Worker Estate v Alberta (Appeals Commission for Alberta Workers’ Compensation) (7 October 2015), Edmonton, 1403-00907 (ABQB), Justice Simpson agreed at paragraph 28: […] this Court has no jurisdiction to provide relief by way of extending the Applicant time for naming and serving under the WorkersCompensation Act or the Alberta Rules of Court.

I agree with Graesser J’s comment in Raczynska that this is a harsh position. However,until the legislature amends the legislation or our Court of Appeal provides authority to this Court by reference to the Judicature Act orotherwise it is not open for this Court to apply the Judicature Act and provide any relief regarding the requirements in the statue or therules. [65] There has been criticism of the Rule and the case law in this area, especially as it relates to self-represented litigants, who mayhave difficulty finding applicable laws and interpreting them correctly.

But the law (statutes and cases) have not changed this position. [66] Here, the PHAB decision was made or issued on December 27, 2016. Mr. Peter filed his application on June 28, 2017. Theapplication should have been no later than June 27, 2017. June 27 was a Tuesday and not a holiday, so

section 22 of the

InterpretationAct, RSA 2000, c I-8 provides no assistance to Mr. Peter. [67] Accordingly, Mr. Peter’s application was filed out of time, and the Court has no jurisdiction to extend the time. [68] Nonetheless, I will still provide my analysis on the issues raised by Mr. Peter. Alleged Breaches of Constitutional Rights [69] Mr. Peter complains that the actions of the AHS executive officer breached his constitutional rights. His submissionsreference

section 8 of the Charter: 8. Everyone has the right to be secure against unreasonable search or seizure. and

section 1(

a) of the Alberta Bill of Rights, RSA 2000, c A-14: 1 It is hereby recognized and declared that in Alberta there exist without discrimination by reason of race, national origin, colour,religion, sexual orientation, sex, gender identity or gender expression, the following human rights and fundamental freedoms, namely: (

a) the right of the individual to liberty, security of the person and enjoyment of property, and the right not to be deprived thereofexcept by due process of law… Charter Rights [70] Constitutional rights as written are not absolute.

Section 8 of the Charter speaks of “unreasonable” search and seizure. Thatprovision was interpreted in Hunter v Southam, (SCC) as requiring a balance between an individual’s right to privacyand the interests of the State. Prior authorization for a search is generally required, and the intrusion into an individual’s privacy interestsmust be proportionate to the public objective. [71] Here, I need not perform an extensive Charter analysis. The Act authorizes the Minister of Health to make regulationsconcerning a wide range of health issues. One of the regulations under the Act is the Housing Regulation.

That regulation applies tohousing premises, including rooming houses and lodging houses, other than dwellings occupied solely by the owner or his dependents. [72] A private dwelling house is a “private place”, but loses that categorization if it falls under

section 1(ii) as an “accommodationfacility, including all rental accommodation”. There can be no doubt that a rooming house or boarding house is “rental accommodation”. [73] There is no doubt that Mr. Peter owned and ran a rooming house. It was not occupied solely by Mr. Peter and his dependents. [74] Mr. Peter’s argument that the Residence is a private dwelling because he keeps some of his things there and sometimes sleepson a chesterfield there is entirely without merit. Whether he is receiving services in exchange for accommodation, or his fellowoccupants are “sharing expenses”, he is receiving rent.

He advertises rooms “for rent”. Mr. Peter does not have roommates; he hastenants. The tenants pay him rent or provide work in exchange for accommodation. There is no information to the effect that any of theseso-called roommates is a dependent, let alone all of them. [75] That makes the Residence a public place under the Act, and subject to the Housing Regulation and all other regulations underthe Act.

[ 76 ] Entry into “public places” is authorized under the Act . There are conditions placed on such entry.

Section 59 of the Act permits an executive officer to inspect any public place for the purpose of determining the presence of a nuisance or whether the Act is being complied with. Inspections may take place at “any reasonable hour”.

Section 60 of the Act deals with entry into a private place. There, the executive officer must have reasonable and probable grounds to believe that a nuisance exists or that there is noncompliance with the Act . [ 77 ] In other words, public places may be entered without “grounds”; private places may only be entered if reasonable grounds exist. [ 78 ] If the owner refuses to allow entry for inspection,

section 61 of the Act allows executive officers to apply for court orders to assist them. [ 79 ] Here, the executive officer sought entry to the Residence. Mr. Peter cooperated and allowed the inspection. He accompanied the executive officer on the inspection. The executive officer was again at the Residence on July 12, but did not go inside. They did not need to go inside, as Mr. Peter advised her that he had not done any of the required work. On August 25, Mr. Peter advised the executive officer that he had not consented to any inspection.

The executive officer advised that she wanted to reattend and post a notice on August 26, but there is no information in the record as to whether that occurred or not. [ 80 ] The record discloses no unauthorized entry to the interior of the Residence. Since the Residence is a public place under the Act , there is no lawful basis for Mr. Peter to prevent access for inspection purposes “at any reasonable hour”.

Obstructing an executive officer in the course of his or her duties is an offence. [ 81 ] In the case of a public place, or housing premises, an executive officer does not need reasonable and probable grounds that the Act or a regulation is being violated to justify an inspection. That is the case here. Even if the Residence were a private place under the Act , in my view the executive officer had reasonable and probable grounds to conduct an inspection. A complaint had been received. It was a detailed complaint and was not anonymous.

Before seeking entry for an inspection, an executive officer attended the site and could observe deficiencies including a blanket covering a window, a missing window pane, paint was peeling off the siding and basement windows appeared blocked because of exterior storage. [ 82 ] It was also reasonable for the executive officer to conclude that the Residence was not a private place because of the posted “for rent signs”. It is difficult to imagine how the executive officer might conclude otherwise. [ 83 ] All of this supports the reasonableness of the inspection or search. [ 84 ] Virtually all of Mr.

Peter’s arguments as to Charter breaches and violations of his rights have no foundation in the evidence and are merely theoretical. He allowed the executive officer into the Residence and then expressly refused to make the required repairs. No one broke in. “His personal space” was not invaded because he did not identify any personal space in the Residence. [ 85 ] I am satisfied that there was no Charter breach of any of Mr. Peter’s rights. There is no need to give notice of any potential remedy to either the Attorney General of Canada or the Alberta Solicitor General. Bill of Rights [ 86 ] I can dispose of Mr.

Peter’s arguments that the executive officer’s actions and the applicable legislation violate his rights under the Alberta Bill of Rights on the same basis with the Charter . An individual’s right to liberty, security of the person and enjoyment of property is expressly limited by the Legislature’s ability to legislate to the contrary. The rights recognized in the Bill of Rights are not absolute. There are limits to freedom and the enjoyment of property.

As with the Charter , rights are subject to justifiable limitations having regard to the rights and interests of others and the public in general. [ 87 ] The Act prescribes limits on some liberties and some uses of property. The limits are intended to be for the public good, for health and public safety purposes. Tenants and roomers have rights too, and the Act and the Housing Regulation strike a balance between the rights and liberties of property owners and the health and safety of their tenants. [ 88 ] Mr.

Peter has not demonstrated that the Act and the Housing Regulation are an unreasonable infringement on his rights as a property owner in the context of him offering rooms in his property for rent to other individuals. [ 89 ] The executive officer at all times acted within the authority she had under the Act and the Housing Regulation , and there was no unreasonable infringement of Mr. Peter’s right to liberty, security of the person or the enjoyment of his public property. [ 90 ] There is thus no reasonable basis for him to argue that his rights under the Bill of Rights have been infringed in any way.

Bias or the Apprehension of Bias [ 91 ] Mr. Peter objected to the constitution of the PHAB and argued that it was biased. The basis for his complaints is that the PHAB works closely with Alberta Health. This is, in effect, one branch of the ministry reviewing the decision from another branch. [ 92 ] Mr. Peter is also concerned that the PHAB is appointed and not elected. Further, he challenges the authority of the Lieutenant Governor in Council to appoint members to the board. He says that the Lieutenant Governor is a representative of a foreign country who has no jurisdiction in Canada.

He also argues that the Guidance Document for Headroom Clearance, under which the executive officer found the doorways in the

basement of the Residence to be non-compliant, was drafted by the inspectors themselves and has no legislative authority. [93] The bias issues and composition of the PHAC are matters that are reviewed for correctness. PHAC ruled that they hadjurisdiction to deal with the matter and did not accept Mr. Peter’s arguments as to bias or composition. [94] PHAB is expressly set up under the Act to deal with appeals from orders made under the Act (including orders made underregulations made under the Act).

This is no different from many other legislative regimes governing administrative tribunals or bodies.The Law Society of Alberta is analogous. It was created by legislation. It has employees who administer the Legal Profession Act withinthe legal profession. Under the legislation, the legal profession is a self-governing profession such that the Law Society controls thediscipline of members. Appeals from administrative actions and decisions, and from investigation panels go to the elected and appointedofficers.

Even though there have from time to time been challenges to the statutory regime on the basis of “built in bias”, those havegenerally been rejected with respect to the legal profession and the medical profession: Ringrose v. College of Physicians and Surgeonsof Province of Alberta, (ABCA); Duncan v Law Society of Alberta, 1991 ABCA 107. [95] There are however limits to what can be done within a statutory regime. It is generally inappropriate for an individual decisionmaker to participate in any appeal from or review of his or her decision.

That attracts arguments on actual bias, or a reasonableapprehension of bias. [96] Here, Mr. Peter provided no information to suggest that there was any particular objection to any particular board member.His objection was generic having regard to their connection with Alberta Health. That objection is not sufficient to ground anyreasonable apprehension of bias here. PHAC was correct in rejecting this challenge to its jurisdiction. [97] Mr. Peter cited Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 as tothe importance of procedural fairness in an administrative process.

He does not point to anything specific about the hearing that was notprocedurally fair. I have rejected his allegations of bias, as did PHAC. The record shows that the process was explained to him, heunderstood what he needed to respond to, he was afforded the opportunity to present his case. There is nothing in the record or in Mr.Peter’s arguments to support any denial of procedural fairness. [98] Mr. Peter’s argument that board members are appointed and not elected has no merit. Very few members of administrativetribunals such as PHAB are elected.

There is no requirement that an administrative decision maker be elected. PHAB was correct inrejecting this challenge to its jurisdiction. [99] Mr. Peter’s argument that PHAB is not properly constituted because its members are appointed by a foreign monarch, QueenElizabeth II is an argument that is sometimes made by organized pseudolegal commercial argument (OPCA) litigants as described inMeads v Meads, 2012 ABQB 571. It has no merit and does not warrant further discussion.

Suffice it to say that Queen Elizabeth II is thequeen of Canada and her participation through her delegates such as the Lieutenant Governor is required in the enactment of federal andprovincial legislation in this Country. [100] PHAB was correct in rejecting Mr. Peter’s arguments to the contrary. Merits of the Orders [101] In reviewing the orders, PHAB had a wide discretion. They were free to substitute their

interpretation for that of the executiveofficer. The Board had the power to confirm, reverse or vary the decision. [102] The Court’s review of the PHAB decision in this area is on the reasonableness standard. The review process was described inNewfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury board), 2011 SCC 62 at paragraph 15: [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for thedecision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).

This means that courtsshould not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing thereasonableness of the outcome. [103] Dunsmuir provides a helpful description of reasonableness at paragraph 47: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [104] In the context of my constitutional analysis, I have already concluded that the Residence was a public place in accordance withthe Act, and a rental accommodation under the Housing Regulation. That means that the decision to the same effect by PHAC wasreasonable. [105] On the merits of the orders themselves, Mr. Peter objected to several specific aspects. The first dealt with fire detectors.

Theexecutive officer made a judgment call on the sufficiency of the existing fire detectors in the context of a rooming house. The MinimumHousing and Health Standards requires that smoke alarms shall be installed between each sleeping area and the remainder of the suiteand where hallways serve the sleeping area the smoke alarms shall be installed within the hallway. [106] PHAC agreed with the executive officer’s decision that more smoke alarms were necessary to ensure safety to the residents was

not unreasonable. It was one of (if not the only) defensible, acceptable outcomes. [ 107 ] The furnace separation issue turns on the location of the furnace and its proximity to a sleeping area or bedroom. The executive officer determined that there was no separation between the bedroom and the furnace. Photographs were taken. From the photographs, the furnace can be seen from the bedroom. It is in a closet or adjacent room with no installed door. A metal storage locker has been placed in front of the opening to the furnace room. Mr.

Peter says that there must be access to the furnace from the bedroom as there would be no other way to access the pilot light and control. PHAC agreed with the executive officer’s conclusion that there was no separation and that the room could not be used as a bedroom. She cited regulations relating to safety. [ 108 ] There is no permanent separation such as a door. The metal locker was readily moveable. I cannot say that the PHAC decision was unreasonable in the circumstances.

While they might have been convinced that the metal locker placed in front of the opening was sufficient separation, the opposite conclusion was clearly one of the possible defensible and acceptable outcomes available to PHAC. It was based on considerations grounded in the Act and safety of occupants. [ 109 ] As for the doorway height, it matters not that AHC itself developed internal standards such as the Headroom Clearance document dated November 23, 2010. Not every nuisance or problem needs to be specified in legislation or regulations under that legislation.

The duties of executive officers are to identify “unsafe conditions” under the Housing Regulation . They are not limited to conditions that have been expressly defined in the Regulation itself. [ 110 ] If an executive officer sees something he or she believes to be unsafe, that is sufficient. Guidance documents are helpful in identifying possible unsafe conditions, as well as encouraging consistency among inspectors. [ 111 ] Here, the executive officer applied the Headroom Clearance Guideline.

That document notes that anything below six feet five inches is only potentially acceptable in buildings constructed before April 1, 1974. A six foot clearance may be permissible “with good lighting conditions and demarcation of obstruction”. [ 112 ] Variable headroom clearance spaces may be reviewed on a case by case basis, especially where the doorway cannot be altered. There is no information here that the headroom was variable, or that it could not be altered. [ 113 ] Application of the standard accepted within AHS was within the discretion of the executive officer.

PHAC agreed with the executive officer’s decision. Again, PHAC had a discretion as to what it wanted to do with the executive officer’s decision on the point. Their decision was within the range of possible justifiable and acceptable outcomes available. There is no basis to set aside their decision on the headroom clearance. It too was based on health and safety considerations. Conclusion [ 114 ] As a result of this analysis, Mr. Peter’s application is dismissed. Costs may be spoken to if not agreed within 30 days. Heard on the 5 th day of December, 2019.

Dated at the City of Edmonton, Alberta this 20 th day of December, 2019. Robert A. Graesser J.C.Q.B.A. Appearances: Matthew W. Peter Self-Represented Litigant Stuart W. Chambers for the Public Health Board of Alberta

A. Danielle Bourgeois for the Alberta Health Services